Expounding the Contours of Sexual Harassment in Virtual Reality: Applicability of the Penal Laws to State-of-the-Art Technology (Part 1)

By: Harsh Agrawal & Rashi Jain


(This post is the first of a two part series on the topic – ‘Expounding the Contours of Sexual Harassment in Virtual Reality: Applicability of the Penal Laws to State-of-the-Art Technology’)

INTRODUCTION

The physical world is no longer the necessary and inevitable arena of human activity. In the late 20th century, the world witnessed cyberspace, which gave a new, non-spatial arena to conduct many, if not, all the activities we carried out in the physical world. With the advent of the 21st century, the world witnessed Virtual Reality (hereinafter ‘VR’), Augmented Reality (hereinafter ‘AR’), 3D holograms, and haptic sensors which when combined with cyberspace give a non-spatial, hyper-real alternative world, the ‘metaverse’. A Metaverse is a combination of multiple elements of technology, including VR, AR, AI etc. where users “live” within a digital universe. It opens horizons of immense possibility for tomorrow of existing in a digital space with an actual identity in the form of avatars, that render human features and movements accurately using sophisticated modelling techniques. Metaverse is said to be the driving force behind the new post-pandemic world, with Facebook and Microsoft both staking claims in it. Global spending on XR is expected to jump manifolds.

Accountability in virtual space gets harder to define, and hence the availability of this new conceptual vector for human activity is not free from vices and has the possibility of opening a Pandora’s box of legal challenges. If much can be done with mere images such as revenge porn, more can be done with a sentient, 3-D avatar with a reach of over billions of people. The authors in this article will delve into the criminal implications of this new age technology specifically in light of the recent sexual harassment cases in the metaverse.

This part of the two-part blog series deals with the technical nuances of VR, the user experience in VR and then move on to answer a pertinent question: can a sexual harassment encounter in virtual reality be equated with one in the physical world or online harassment? The 2nd part of this series will delve into the legal semantics of the paper by talking about existing remedies, their limitations and will then go on to propose changes, both on the technical and legal fronts.

USER EXPERIENCE IN VR

The up-and-coming generation of online services based on technologies like AI, blockchain, AR and VR enable highly personalised and engaging experiences for users. The development of technology has always been proportional to its potential for abuse. Hence, it did not come as a surprise when the prevalence of harassing behaviour has been reported by multiple users of VR. The innate nature of VR enhances the very experience of online harassment. As per empirical research conducted and reported, it was observed that “In VR, users are embodied in avatars that move when the player moves and interact with other players in 3D spaces, enabling violations of personal space and corporeal presence that feel fundamentally different than interactions that occur in other online environments—an experience made potentially more salient by the unique sensation of the presence or the feeling of truly “being there.” Hence, the embodiment and presence in VR make harassment feel more intense.” This feature of avatar in the VR allows the possibility of committing and experiencing virtual groping and even rape, which were not possible in the last generation of online services or 2D spaces like Instagram.

Virtual Reality aims to provide its users with an experience that is very similar to the physical or real world. A  review by CNET demonstrates how far VR has progressed. For example, all VR systems on the market today offer not only visual digital immersion but also haptic sensors that enable one to detect and grab objects within a virtual environment. All these technologies combined make virtual reality spaces trick users into imagining that they are physically present as their slightest body movement is simultaneously occurring in a 3D environment. For this reason, the emotional, psychological, and internal nervous system responses in VR are very similar to those in the real world.

Hence, sexual harassment in VR is a traumatic experience that has the potential to impact the user in much more enhanced and different ways as compared to the traditional ways of online harassment. The next section demonstrates how a crime in VR be considered a cybercrime.

SEXUAL HARASSMENT IN VR-A CYBERCRIME

People sexually harass strangers and indecently expose themselves in the real world; the same also translates in the metaverse. Indeed, this is more likely to happen, precisely because it will be hard for the legal authorities to hold them accountable. While criminals can use cyberspace as a vector for the infliction of harm and thereby free themselves from the constraints of the physical world, the ends they seek and the injuries they inflict are still grounded in physical reality. Crime in cyberspace or cybercrime has been defined as criminal acts committed online by using electronic communications networks and information systems. The composition of cybercrimes is a continuum with one extreme as people-centric cybercrimes and the other as technology-centric cybercrimes. In the latter, the computer itself is a target, whereas in the former, the computer is a tool to commit a crime that in any way relates to people like cyber-harassment, pornography, cyber-fraud, etc. Harassment in VR is an aggravated form of online harassment and hence will undoubtedly come under the ambit of cybercrime as the means and mode of committing the offence is an electronic device.

Sexual harassment in VR can be done in far more ways than what was previously possible on traditional online platforms. The incidents of virtual groping and virtual rape are some of many examples. In Belgium, federal prosecutors asked the Belgian Federal Computer Crime Unit to travel to the scene of a crime in Second Life (a VR game) for the purpose of investigating a “virtual rape” involving a Belgian victim. The Belgian police’s reaction to a reported virtual rape suggests people do find such an experience traumatic. Hence, it is important to discuss what existing remedies we have to deal with these new-age crimes.

The following instalment of this blog series will discuss legal remedies, limitations, and recommendations for dealing with this new age threat.


(Harsh and Rashi are law undergraduates at Dr. Ram Manohar Lohiya National Law University, Lucknow, and ILS Law College, Pune, respectively. The author(s) may be contacted via email at harshagrawal17831@gmail.com and/ or rashijainrj.1999@gmail.com)

Cite as: Harsh Agrawal and Rashi Jain, ‘Expounding the Contours of Sexual Harassment in Virtual Reality: Applicability of the Penal Laws to State-of-the-Art Technology (Part 1)’ (The RMLNLU Law Review Blog, 20 May 2022) <https://rmlnlulawreview.com/2022/05/20/metaverse/>   date of access

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