Misconduct and the Metaverse: Legal Prevention and Prosecution of Virtual Sexual Harassment

/ Criminal Justice, Cyber Law / By

Sophia Staniunas*1

I. Introduction

Sexual assault under any circumstance is considered a serious offense, both amongst the parties involved and in the eyes of the law. However, new forms of sexual assault, harassment, and depravities of the like have arisen with the introduction of the “metaverse.” A more recent understanding of the metaverse, now known as “Meta,” is largely connected to the founder of Facebook, Mark Zuckerberg. His objective involves integrating virtual reality into commonly non-virtual spaces and connecting the physical realm with one created by artificial intelligence and computer programming methods. The metaverse is used and explored with the aid of “avatars,” or virtual representations of the physical person using the program. Though the metaverse in its entirety has not been launched into the folds of society, sophisticated versions of virtual reality and computerized worlds have. With its existence comes a new kind of consequence, one that must be prevented and prosecuted: sexual assault. Due to its relative novelty and the fact that the metaverse has not yet been fully implemented, legal definitions of issues related to sexual assault fail to allow for protections in a virtual setting despite the existence of allegations and proof of sexual misconduct within the metaverse space. 

With the implementation of the metaverse—a mixture of virtual and physical settings—comes a new set of challenges, specifically regarding the sexual harassment and misconduct definitions of the current United States Law Code 2246 of Title 18, Part 1 Chapter 109A titled “Sexual Abuse.” This Note will argue that in addition to the laws in place that protect against sexual harassment, a revised definition of sexual acts and sexual contact must be put in place to protect against virtual sexual misconduct. This Note will first provide an overview of what the “Metaverse” is and provide an overview of the sexual misconduct that occurs within that virtual space. This Note will then expose the current lack of consequences for such behavior. This Note will ultimately argue for changes in the definitions of a sexual act and sexual contact in U.S. Law Code 2246, as the current laws’ language is not inclusive enough for potential misconduct that could occur between virtual avatars.

II. The “Metaverse” and its Connections to Harassment

The term “metaverse” is a combination of the prefix “meta,” which suggests a transcendental quality, and “verse,” a shortened version of the word “universe.” The metaverse relates to a virtual environment meant to mimic the real world, and these faculties of mimicry include a personalized “avatar.” According to the article “All One Needs to Know about Metaverse: A Complete Survey on Technological Singularity, Virtual Ecosystem, and Research Agenda,” an avatar is an “analogy to the user’s physical self, to experience an alternate life in a virtuality that is a metaphor of the user’s real worlds.”2 Avatars within the metaverse are created with specific details that relate to the physical person behind the avatar through a process of duplication, resulting in something called “digital twins.”3 According to Lik-Hang Lee and other authors of this article, digital twins are a direct reflection of the person using the system regarding properties such as motion, temperature, and function.4 Thus, an accurate characterization of the metaverse is that it is a combination of virtual reality and physical reality, physical spaces that span across all internet platforms to create a virtual universe.

It is important to note that research and work on completing the metaverse is still ongoing. However, the goal by the end of its integration into society is for the avatars representing people in the physical world to engage in “heterogeneous activities in real-time characterized by unlimited numbers of concurrent users theoretically in multiple virtual worlds.”5 This suggests that by the time the metaverse is complete to the point of unabridged integration, there will be a relatively high level of avatar interactivity. With this comes the issue of substantial threats to personal privacy and well-being through advanced techniques such as “dark patterns,” which are a form of computer programming that serves as a form of manipulation that could result in harm completely unbeknownst to the user being targeted.6 Regardless of the technology that would be used to infringe upon personal rights, this kind of infringement is already occurring, specifically within Zuckerberg’s metaverse program. For example, metaverse user Jordan Belamire’s avatar was sexually groped without consent while playing a multiplayer game called QuiVr, in which her partner’s avatar “turned to her and started rubbing her virtual crotch and groin.”7 Belamire later wrote that the incident felt “real” and “violating.”8 Since an avatar can be controlled by a human to sexually violate another avatar additionally controlled by a human, this creates a stark contrast between interactions in the metaverse and unsavory behavior in commonplace video game chat rooms.

Author Joshua Hanson finds that Belamire’s experience and its consequences imply that the person whose avatar harassed her can or should be held liable for their actions, despite there being no true physical interaction that occurred between the two. He writes that “as the boundaries between reality and virtual reality are blurred, a user can develop psychological responses to an attack on their virtual body as if it were their own.”9 The concern revolves around the fact that if the same inappropriate behaviors were to occur in the physical realm, the person committing the act would be penalized in accordance with the law.10 Yet, because of the lack of physicality, the acts become much more difficult to criminalize under current legal protections. Hansen makes a reference to the notion of a “magical circle” as a categorization method for virtual acts, writing, “[p]urely virtual acts that are only significant within virtual worlds lie within the magic circle and cannot be considered real. These acts are said to have intra-virtual effects.”11 This notion implies that visible actions and effects occurring in the virtual world do not conflate with the physical world and the people that the actions are affecting. However, this cannot stand in the context of the metaverse because the user exists in both the virtual and the physical world. For example, Belamire says that “[T]he public virtual chasing and groping happened a full week ago and I’m still thinking about it.”12 It is clear from her description that she indeed suffered real-world effects of a virtual-world interaction.

III. Absent Consequences for Virtual Sexual Harassment

The unfortunate reality of the metaverse includes even more instances of sexual misconduct, including, but not limited to, instances of virtual groping, gang rape, and sexual commentary that go unprosecuted throughout the platform.13 The nonprofit company SumOfUs noticed and recorded this disturbing behavior.14 For example, a researcher working for SumOfUs was “led into a private room at a party where she was raped by a user who kept telling her to turn around so he could do it from behind while users outside the window could see—all while another user in the room watched and passed around a vodka bottle.”15 This instance of sexual misconduct occurred within one hour of the researcher’s avatar being integrated into the virtual world.16 She also noted that while she was being assaulted, the controller she used to navigate the virtual world corresponded with the non-consensual touch by vibrating, creating an extremely “disorienting” experience.17 The researcher’s feelings of disorientation and violation extended beyond her time in the metaverse.18 To further expand, Joshua Hanson wrote, “[t]he psychological harm of sexual offenses derives from the compromise to one’s physical integrity. This compromise is inextricably linked to one’s emotional and psychological state and, therefore, one’s personality and sense of self.”19 This greatly emphasizes the existence of psychological effects in the real world, and in real-time outside of the virtual realm.

In addition to Hanson’s and SumOfUs research conclusions, Mr. Karthigian Subramaniam, a psychologist from the Crime, Investigation, and Forensic Psychology branch of the Home Team Behavioral Sciences Center of Singapore recently teamed up with other psychologists from the Ministry of Home Affairs in Singapore to research the psychological effects of sexual harassment in a virtual world. He cites Ms. Belamire’s case, alongside another allegation that “a seven-year-old girl was surrounded by a group of male avatars and threatened with gang rape.”20 His findings resulted in a powerful statement about misconduct in a virtual realm: “It is a misconception that any abuse that happens online is less real just because it happens behind a screen. In the metaverse, individuals are so immersed it does feel real, and the impact of sexual assault in VR is very real.”21 In support of this claim, psychologist and researcher Carol Balhetchet notes that “because VR is so immersive and [people] interact with it visually, audibly, mentally and emotionally, sensation floods their whole body as though they are physically present in the game….”22

It is clear that regardless of true physical contact, an interaction between avatars models the same behavior and interactions within a virtual world and can still render psychological consequences. In addition to this point, author Yogesh K. Dwivedi from the International Journal of Information Management wrote an article referencing a phenomenon called “online disinhibition,” which is defined as “a psychological state in which individuals feel more relaxed and willing to engage in certain behaviors in the online environment.”23 This state of mind can be particularly dangerous when it comes to inappropriate behavior, as online disinhibition alludes to the notion that there are less, or a complete lack of, consequences for actions committed in a virtual space. For instance, according to an undercover researcher at the New York Times, the user who sexually abused the researcher’s avatar told her, “I don’t know what to tell you. It’s the metaverse–I will do what I want.”24 This quote in particular, along with the other allegations made about inappropriate action without consequence, offers the transpicuous deduction that harm done to another person, whether virtual or in the real world, has detrimental effects on the victims and has no direct legal consequence on the perpetrator. Thus, there need to be certain added protections for these very reasons.

IV. Necessary Legal Additions to Sexual Misconduct Definitions

In order to counteract the ongoing and potential future sexual violations committed within the metaverse, redefining “sexual acts” and “sexual contact” detailed in the United States Code Title 18 Part 1 at section 2246 is a necessity. Currently, it is not sufficient to protect against the aforementioned and future cases of sexual misconduct. The definitions are limited to contact and acts that are strictly physical, and go into depth as to what that physicality is, and this includes descriptions of contact between genitalia or other body parts and intentional touching with the “intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”25 These definitions specifically detail these acts and contacts using descriptors that pertain only to the physical world, thus excluding potential misconduct in the virtual world.

The case of the Free Speech Coalition v. Reno (1999) involved an adult sending explicit content over an online platform to a minor, and one of the main facets of the case was whether the accused party was actually guilty of sexual misconduct against a child, as the offender was not technically physically abusing the child. It is relevant to this argument for legal additions to the aforementioned definitions because the Child Pornography Prevention Act of 1996 (CPPA) was one of the first attempts to criminalize inappropriate sexual behavior regarding non-human entities that directly resembled real people on an internet-based platform, and was used to argue this point within the case.26 The Act was able to assist in prosecuting the offender as it emphasizes protections needed against child molesters, with those protections including instances of virtual misconduct.27 The appeal of the original court case by the Free Speech Coalition (FSC) was grounded in the claim that the Child Pornography Prevention Act of 1996 was unconstitutionally vague in its ruling that computer-generated images of children in pornographic scenes are illegal.28 The wording that the FSC was focused on regarding the Act’s opinion on these kinds of images included “appears to be” and “conveys the impression” of a child.29 Though this Note is not specifically about the sexual harassment of children, it is important to note that the images of the children in a pornographic setting are completely computer generated yet have adverse effects on society and are considered to be substantive material for furthering pedophilia. The establishment of the constitutional legitimacy of the CPPA is relevant because it supports the argument that the definition of sexual misconduct within U.S. Code 2246 is likely constitutional, as the avatars of the metaverse are computer generated, alongside every other aspect of the virtual world. The difference is that there is an actual person behind the avatar and screen, thus strengthening the argument that a constitutional protection against virtual sexual harassment should be codified.

The Minnesota Statutes for Criminal Sexual Conduct in the First and Third Degree alongside State V. Decker (2018) both concern the sexual harassment of children, but in a virtual space. Justine Wagner writes “The question for the judicial branch to interpret becomes whether people’s avatars can be seen as an extension of their physical bodies.”30 In State v. Decker, a thirty-four year old male sent a picture of exposed genitalia to a minor and claimed that because of the word “presence” in Minnesota statutes regarding sexual harassment prevention, taking presence to mean that the perpetrator was within close physical distance of the victim.31 Presence, though not explicitly stated in the U.S. Code 2246 of Title 18 Part 1 definitions of sexual act and sexual contact, is heavily implied through the terminology used to describe the intentional touch of another person. Thus, by these technicalities the accused made a logical argument that, because he was not physically in the victim’s presence, his misconduct should not be considered a violation of the law.32 However, the courts still ruled in favor of the state, holding that “presence” is applicable to an online setting.33 In deciding whether to give additions to the preceding definitions, Decker can be used to promulgate the argument that an online and virtual version of sexual harassment is still a form of being present, and that the avatar deserves the same level of personal autonomy as the person behind the screen.

It should be noted that this case involves a minor as the victim. Despite this, the results of the appeal regarding whether harassment in an online setting suffices as being “present” with the victim has nothing to do with whether or not that victim is a child. In fact, it can be argued that the urgency for these kinds of protections is heightened by the inference that minors will more than likely also be users of the metaverse. Decker shows that physical presence is not necessarily needed to convict a person of sexual misconduct. This carries over to the argument that specific protections are both needed and constitutionally sound for the purpose of protecting against sexual misconduct in the metaverse–a virtual space with no physical presence.

V. Conclusion

Though the concept and integration of the metaverse is still young, its impact has already questioned the level of safety and security a user will feel when using the program. Based on evidence from victim testimony, research, and experts in both legal and computerized fields, it is an undeniable fact that virtual sexual assault and harassment in the metaverse space exists with little consequence. It has also been made evident that this virtual sexual abuse has the potential to cause adverse effects upon victims, both psychologically and physically. Despite this, there have been no additions or changes made to the definitions of sexual content and sexual acts, even though virtual sexual harassment clearly is and will continue to be an issue as the metaverse expands into everyday life. Jordan Belamire had an alleged sexual crime committed against her while playing a video game in Mark Zuckerberg’s metaverse, and yet no action can be taken due to the incorrect notion that an avatar has no “real” bodily correspondence or correlation. This is despite the research into the physiological and psychological effects of being harassed in a virtual space that has conclusively stated that it can have adverse effects on the real person. The proposition being made is one that will hopefully be able to protect victims and prosecute the perpetrators who believe that the metaverse cannot be governed by the same rules as the physical world. The definitions of sexual act and contact are highly specific in their anatomical vocabulary describing physical touch, thereby excluding any kind of augmented reality-driven virtual acts and contacts. For the protection of the American population against sexual misconduct, this must change by either changing or adding onto the current definitions under sections two and three of the United States Code Title 18 Part 1 at Section 2246.

  1. *B.A. Candidate for Philosophy and History, Fordham College at Rose Hill, Class of 2025. This is my second online publication for the Fordham Undergraduate Law Review, and I am interested in pursuing a legal career in the future.
  2. Lee, Lik-Hang, et al. “All One Needs to Know about Metaverse: A Complete Survey on Technological Singularity, Virtual Ecosystem, and Research Agenda.” ArXiv.org, 3 Nov. 2021, arxiv.org/abs/2110.05352. 1.
  3. Id. at 2.
  4. Id..
  5. Id..
  6. Id.
  7. Id.
  8. Hansen, Joshua. June, 2019. “Virtual Indecent Assault: Time for the Criminal Law to Enter the Realm of Virtual Reality.” Victoria University of Wellington Law Review.
  9. Id. at § II, C.
  10. Id..
  11. Id. at § III, C.
  12. Id. at § III, F.
  13. Editors at SumOfUs. May 2022. Metaverse: Another Cesspool of Toxic Content. SumOfUs, www.sumofus.org/images/Metaverse_report_May_2022.pdf. 1.
  14. Id. at 1.
  15. Id. at 5.
  16. Id. at 6.
  17. Id.
  18. Id.
  19. Hansen, supra note 7 at § 3F2.
  20. Sun, David. August 2022. “Molested in the metaverse: studying sexual assault in virtual reality amid concern over psychological impact on victims.”§ I.
  21. Id.
  22. Id.
  23. Dwivedi, Yogesh K., et al. “Metaverse beyond the Hype: Multidisciplinary Perspectives on Emerging Challenges, Opportunities, and Agenda for Research, Practice and Policy.” International Journal of Information Management, Pergamon, 16 July 2022. § 2.7.
  24. Id.
  25. Crimes and Criminal Procedure, 18 U.S.C. § 2246(2-3).
  26. Id.
  27. See Free Speech Coalition v. Reno, 198 F.3d 1083 (United States Court of Appeals for the 9th Cir. 1999).
  28. Id. at § II.
  29. Id.
  30. Justine Wagner. “Immersive Virtual Reality: Minnesota Legislature’s Opportunity to Protect Chilcren From Sexual Exploitation by Enacting a Well-Defined Criminal Statute.” Mitchell Hamline Law Review, 46. 2020. 407.
  31. See State v. Decker, 916 N.W.2d 385, (Supreme Court of Minnesota 2018).
  32. Id.
  33. Id. at Analysis § I.
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