Crime in a Digital World: Sexual Misconduct in the Metaverse.
21 June 2022
This article provides a brief overview of the developing phenomenon of the metaverse, and the emerging issues of potentially criminal conduct.
What is the metaverse?
There is no one conclusive definition of the metaverse. It can be described as a hypothetical iteration of the Internet as a single, universal, and immersive virtual world that is facilitated by the use of virtual reality (VR) and augmented reality (AR) headsets.
This simply means that users are able to enter into different ‘worlds’, which is synonymous to a room, an environment, or a 3-dimensional webpage, hosted on the internet. These worlds are often supported by large platforms/servers, but also can be freely created by individuals. It is designed to be experienced using specific gear for maximum immersion. Users create avatars to represent their physical forms, and use controllers to move around and interact. This traditionally includes headsets to provide the basic visual and auditory responses. There are hand controls to allow users to engage with virtual objects with their corresponding virtual arms. There are bodysuits that deliver physical sensations through targeted vibrations. Users can even stand on treadmill-like platforms permitting them to run both in the real and virtually real world. Currently developing technology includes combining haptic feedback and ultrasound waves to provide ultra-realistic physical sensations. This means that you can accurately feel what you do or is done to you in the virtual world without wearing any gear at all.
There are currently several platforms where users can experience virtual reality in the metaverse. By way of example, Horizon Worlds is a free VR online game hosted by Meta Platforms Inc (formerly Facebook Inc). It is reported to have a monthly user base of 300,000, and hosts over 10,000 separate worlds that users can join. Altspace VR is a similar VR platform by Microsoft where users can join worlds and engage in social communities. There are other platforms such as Decentraland, Cryptovoxels, Somnium Space, and the Sandbox, which offer a more decentralised experience.
The government of Barbados is set to open a virtual embassy on Decentraland. Users are able to buy VR clothes for their avatars using real currency. There are already virtual events that people can and do attend from their homes. On one hand, it is an alternative world where people can live, with increasing degrees of realism, a different life of their choosing. On the other hand, it represents a new mode of living your real life and conducting your real affairs, such as education and social commitments, through the virtual space in the metaverse.
The metaverse remains unregulated. In ‘Sum of us: Metaverse: Another Cesspool of Toxic Content (May 2022)’, it was reported that a researcher using the Horizon World platform had been ‘raped’. She alleged that she was led into a private room at a virtual party, where she was raped by a stranger who kept telling her to turn around so he could do it from behind. Another user was watching, and passed around a vodka bottle. This experience was said to have been non-consensual. In Horizon World, there are personal boundaries that can be set to prevent physical contact between avatars, but this can and was turned off for this user. Part of the interaction can be seen here.
Other reports of sexual misconduct included a female avatar being approached by a stranger who simulated groping and ejaculating on her, and another user experiencing a stranger groping her avatar’s chest, which she felt in the real world via a VR bodysuit.
There are further implications of children using this technology. While mainstream platforms like Horizon World are intended for adult users, the very nature of the internet and its decentralised form allows users to freely create worlds with potentially limitless rules and policies. It is clear to see how the current trajectory of the metaverse can facilitate users to engage in conduct that would otherwise be criminal in the real world.
What is real?
The ugly question that will have to be confronted at some point is how we understand what is real. Technological innovations aim to provide the most realistic immersive experience possible. As noted above, new developments using ultrasound waves and haptic feedback will soon be able to provide extremely accurate physical sensations. Even with current levels of immersion, the brain can be convinced that what is happening in the metaverse is real. A crude example of this is the sensation of falling in the metaverse which causes the user to also fall in real life. Experiences in the metaverse may not have physical consequences (yet), but the psychological harm and potential trauma is far more difficult to discount perfunctorily.
In the current legal framework, sexual activity for the most part necessarily requires real physical contact between individuals involving designated body parts. Apart from a few niche adult-designated VR platforms for sexual entertainment, avatars on the mainstream metaverse do not have these relevant body parts. Without the constituent physical interactions, sexual conduct against one’s avatar in the metaverse remain beyond the scope of traditional approaches. However, with the ever increasing degrees of immersion, it is, in my view, only a matter of time before we turn to legislate specific conduct in the metaverse.
Malicious Communications Act 1988
The closest current legislation that could potentially address examples of sexual misconduct as mentioned above would be the Malicious Communications Act 1988.
1) Any person who sends to another person—
(a) letter, electronic communication or article of any description] which conveys—
(i) a message which is indecent or grossly offensive;
(b) any which is, in whole or part, of an indecent or grossly offensive nature,
is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should, so far as falling within paragraph (a) or (b) above, cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.
Electronic communication includes any oral or other communication by means of an electronic communications, and any communication (however sent) that is in electronic form. This may be capable of addressing sexual misconduct in the metaverse, if the on-going stream of interactions was viewed as constituting ‘electronic communication’. This offence carries maximum penalties of 12 months’ imprisonment following summary conviction, or 2 years following conviction on indictment.
Sexual Offences Act 2003
In light of the overtly sexual nature of the interactions, one may consider the Sexual Offences Act 2003. As avatars currently lack the relevant body parts, rape and assault by penetration remains untenable. However, sexual assault (s3) remains potentially viable.
Section 3 (Sexual assault) reads:
(1) A person (A) commits an offence if —
(a) he intentionally touches another person (B),
(b) the touching is sexual,
(c) B does not consent to the touching, and
(d) A does not reasonably believe that B consents.
(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.
This offence carries maximum penalties of 6 months’ imprisonment following summary conviction, or 10 years following conviction on indictment.
Online Safety Bill
Currently in the legislative horizon, the Online Safety Bill is making its way through the House of Commons. The draft includes two offences that will likely cover conduct the metaverse.
Section 150 (Harmful communications offence) reads:
(1) A person commits an offence if—
(a) the person sends a message (see section 153),
(b) at the time of sending the message—
(i) there was a real and substantial risk that it would cause harm to
a likely audience, and
(ii) the person intended to cause harm to a likely audience, and
(c) the person has no reasonable excuse for sending the message.
(4) “Harm” means psychological harm amounting to at least serious distress.
This offence will carry maximum penalties of 12 months imprisonment following summary conviction, or 2 years following conviction on indictment.
Conduct can also be engaged by section 152 (Threatening communications offence), which reads:
(1) A person commits an offence if—
(a) the person sends a message (see section 153),
(b) the message conveys a threat of death or serious harm, and
(c) at the time of sending it, the person—
(i) intended an individual encountering the message to fear that
the threat would be carried out, or
(ii) was reckless as to whether an individual encountering the
message would fear that the threat would be carried out.
(2) “Serious harm” means—
(a) serious injury amounting to grievous bodily harm within the meaning
of the Offences against the Person Act 1861,
(c) assault by penetration within the meaning of section 2 of the Sexual
Offences Act 2003, or
(d) serious financial loss.
This offence will carry maximum penalties of 12 months’ imprisonment following summary conviction, or 5 years following conviction on indictment.
Keeping pace with technology, section 153 increases the conceptual scope of how users may receive a ‘message’. Unlike the previous formulation in s1 of the Malicious Communications Act 1988, ‘Encounter’, in relation to a message, now means read, view, hear or otherwise experience the message.’ This therefore would capture continuing course of conduct in the metaverse as constituting a message for legislative purposes.
The main envisaged hurdles going forwards include a conceptual re-evaluation of what is real, preparing for the consequences of decentralisation, and the navigating the issue of anonymity.
As noted above, as virtual reality becomes more ‘real’ through immersion, there will come a point where specific conduct in the metaverse may require a more robust response in the legislation, especially if the psychological effects on the complainant is, albeit subjective, very ‘real’. This issue is exacerbated by the decentralisation of the internet. As virtual reality gains further traction, there will be worlds hosted by individuals and groups where anything and everything can be programmed to be experienced. This could facilitate users to engage in what would constitute very serious criminal behaviour in the real world. Finally, even if perpetrating avatars can be identified, it remains a notable challenge for the prosecution to establish attribution to a real user. Virtual Private Networks and other anonymity based assets such as the Tor Project, are already in mainstream use, which essentially prevent identification and attribution.
Come what may, legislate or not, the metaverse is here to stay. Innovation and immersion will only get faster and more intense with time. It is hoped that, as the lines between real and virtually real become increasingly blurred, basic tenets of criminal justice can be established to protect users from harm.