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Can Canada's sexual assault laws deal with virtual groping?

Two Canadian lawyers suggest that if an avatar is an extension of a person, then an abuse toward the avatar is an abuse toward the person.
virtual reality
Meta's Horizon Worlds has created boundary controls to avoid unwanted contact between people's avatars.

In the virtual world, people create — or wear — avatars, a character they wish to be in that world.

However, as online users are finding out, contempt toward women and resulting inappropriate behaviour isn’t confined to the real world; it’s happening in the virtual world as well.

It’s led two Canadians lawyers, Kevin Stenner and Mihai Beschea, to suggest that if an avatar is an extension of a person, then an abuse toward the avatar is an abuse toward the person.

“With the blurring of the lines between the virtual and physical world, it is time for our laws to be updated so that our avatars in the metaverse and our physical selves are protected by the same laws,” they said.

In a March 22 commentary, the lawyers said the avatar of a female beta tester was groped on Meta’s virtual reality (VR) platform, Horizon Worlds.

Horizon Worlds is Meta’s — Facebook’s parent company — first attempt at an expansive, immersive and multi-user VR world. Users create an avatar and then, using a virtual reality headset, explore and engage in that world.

It was there, the lawyers said, that the female user’s avatar was groped.

Dr. Jeremy Turner, a cognitive science instructor at Simon Fraser University, says there is a visceral nature to embodied interactions in social virtual reality.

“It gets even weirder when a cisgender straight guy wears a female avatar and gets quickly sexually assaulted by other guys — it happened to me more than once in VR chat,” Turner said. “I would imagine it’s the same as being groped in real life.”

“The experience felt very real. I felt horrible,” he said.

“‘Oh, this is what women go through,’” he recalled thinking.

Turner said VR interactions might be a good way for society to become sensitized to the kinds of sexual assault and violence people experience in everyday life.

“It certainly enhanced my empathy in a very direct way. It’s instant. People are on you right away,” he said. “Some people think it’s OK to grope. There’s no social protocols. Norms are gone.”

The instructor noted there could be a teachable moment, perhaps a chance to learn how to be in someone else's shoes, by wearing an avatar different than one's self.

Still, the lawyers think the laws should be examined.

“Sadly, misogyny towards women on the internet is nothing new, but this recent incident raises the question of if our current sexual assault laws (criminal and civil) are sufficient to cover and protect users of the metaverse from similar situations,” Stenner and Beschea said.

However, the suggestions that harm could result from virtual groping has already led to Facebook taking steps to deal with it.

In February, Horizon vice-president Vivek Sharma announced a four-foot personal boundary between avatars. Earlier this month, Meta customized the feature to allow users to optionally turn the setting off or control when it's enabled. 

“This builds upon our existing hand harassment measures that were already in place, where an avatar’s hands would disappear if they encroached upon someone’s personal space,” Sharma said Feb. 4.

'What’s the big deal?'

“Although many may shrug this off by saying, ‘What’s the big deal? It’s virtual, it’s a game,’ we staunchly disagree with this sentiment,” Stenner and Beschea said. “With the line between the virtual and physical worlds becoming blurred at a rapid rate, we need to ensure that our laws can meet the challenges of operating in a virtual world.”

They explained that the end goal of VR is to create an experience so immersive that it appears real.

“It is becoming increasing more difficult to determine where the physical world ends and the virtual world begins,” they lawyers said.

“The purpose of the metaverse is to create a virtual environment that is an extension of the physical world,” they said. “So, if the metaverse is an extension of the physical world, any sexual assault in that virtual world needs to be treated as just that — a sexual offence.”

What does the law say?

Canadian law provides a two-part test for sexual battery: was the victim intentionally touched in a sexual manner and was it harmful or offensive?

“It is clear that unwanted groping or unwanted sexual conduct, whether in the physical or virtual world, is harmful and offensive. As such, the second part of the test is satisfied,” the lawyers said.

Then, the question becomes, was the victim touched?

“In our Horizon Worlds groping example, the victim was intentionally groped virtually, but was the victim ‘touched,’ as defined in the legal sense of word, to constitute civil sexual assault?”

The courts could find themselves grappling with the interpretation of the word ‘physical’ and if the physical application of force includes virtual touching.

Then there’s punishment.

“Should punishment be limited only to the user’s avatar — by suspending their account or placing the user in some sort of virtual prison?” the lawyers asked. “Perhaps a financial consequence in the metaverse might be more significant than a traditional criminal one for crime occurring in the virtual space.”

Or should dealing with such behaviour be left to Horizon?

“We recognize that we are bordering on the realm of creating a dystopia, but the virtual world will have to grapple with issues of free will versus user safety,” Stenner and Beschea said.

Further, what kind of sexual interaction should be allowed in virtual worlds? Should such interaction be regulated between consenting adults?

“The groping incident explored above opens Pandora’s box regarding laws, sex and violence in the metaverse,” Stenner and Beschea said. “It should be no surprise we are discussing this; as a society we have been grappling with these issues as they apply to social media, gaming, and the use of the internet.”

“The metaverse is coming faster than we think and we need to ensure our laws are ready for it,” they said.

jhainsworth@glaciermedia.ca

twitter.com/jhainswo