Why Metaverse sexual assaults could be difficult to prosecute

Though the attack took place in virtual reality, Nina Jane Patel was surprised to feel her real heart racing in her chest.

Three male figures surrounded her avatar in Horizon Venues, a virtual live events program created by Meta. They touched her avatar’s breasts and pressed their torsos rhythmically against her, telling her that she wanted it. A fourth took photos of the incident in the app.

“My physical body was responding,” said Patel, 45, a virtual reality researcher and consultant with the Zero Abuse Project. “I was very uncomfortable. Fight or flight mode kicked in.”

As virtual reality programs are booming, so are reports of attacks, harassment and sexual assault. Some activists argue these incidents should be treated as serious — even criminal — acts. And authorities are starting to pay attention.

This spring, under a grant from the U.S. Justice Department, the Zero Abuse Project will hold workshops to explain the metaverse and its dangers to state and local police. And last month, the international law enforcement group Interpol called on global police forces to develop protocols to address crimes committed in VR, including sexual assault.

“With its increasing use and the number of participants,” Interpol wrote in a report , “there is a need to define what constitutes crimes and harms in the Metaverse.”

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Emerging science suggests that harassment in digital worlds can have a profound psychological impact similar to real-life attacks. But prosecuting virtual crimes would require a dramatic rewriting of legal precedent. Laws governing rape and sexual assault require evidence that a physical incident occurred. And while harassment statutes might technically apply, they often require multiple offenses and are tricky to prove.

Some urge caution in declaring these real crimes, despite genuine harms.

“People kill each other all the time in video games but we don’t call them murderers,” said Aya Gruber, a law professor at the University of Southern California who has studied rape laws and called jail a “blunt tool” for addressing online behavior.

Others say the situation is urgent and demands immediate protocols. Dan Barry, an investigations specialist at the Zero Abuse Project, set up a test profile mimicking a 13-year old girl on VRChat, a virtual reality program. Almost immediately, the girl’s avatar was greeted by male avatars, who made sexual comments and asked her to chat privately.

“That child could be sexual assaulted by [an] adult,” he said. “There are not a lot of controls in these spaces.”

These challenges arise as major technology companies are investing billions of dollars into virtual reality programs, aiming to transform them into a new computing platform. Meta CEO Mark Zuckerberg has said virtual and augmented reality powered devices will eventually replace mobile phones and some in-person communication. Apple’s virtual reality headset, Vision Pro, went on sale Friday.

Many of the earliest adopters of virtual reality came from the video game industry — a sector that has struggled with racism, sexism and harassment. These issues exploded into the public in the 2014 phenomenon known as “gamergate,” when internet trolls organized to harass women in gaming circles.

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Experts say these issues have migrated to social VR apps, where users interact with each other in virtual bars, concerts and event spaces. One 2018 study found that 49 percent of women who regularly used VR reported experiencing at least one instance of sexual harassment.

For people who use VR harassment “is a growing concern,” said Clemson University professor Guo Freeman, author of a forthcoming study on harassment in the metaverse. “Some people actually told us they would quit” because of the abuse.

Experts say the immersive nature of virtual reality can make online attacks feel real. Researchers use the phrase “embodiment” to describe the intimate connection people feel with their digital avatar. Headsets from Apple and Meta with advanced audio and “eye-tracking” enhance this feeling, by making virtual experiences seem real.

“This type of immersive and embodied experience [makes] harassing behavior feel as realistic as in the physical world,” Freeman said. “It’s like my offline body is attacked because it feels so real. It’s like someone is touching me.”

Patel said that she logically knows her attack happened to a digital avatar, hearing the voices of her attackers in her ear made it feel like it was happening to her body.

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While victims might suffer profound emotional impacts, it’s unlikely that law enforcement and courts will interpret these experiences similarly. Most legal definitions of rape require a physical sexual act to have occurred in order for prosecutors to pursue a case, said John Bandler, a lawyer specializing in cybersecurity and former assistant district attorney at the New York County District Attorney’s Office.

“It’s not a rape as defined in the criminal law,” Bandler said of attacks in virtual reality. “It’s not an act in the physical world.”

Experts said it might be possible to prosecute offenders under a lesser harassment charge. But those charges are often made when the perpetrator has committed multiple offenses over time, said Mary Anne Franks, a George Washington Law School professor.

“To rise to the level of something criminal, [a perpetrator] would have to have done something repeatedly — that is follow this person home or they show up at work the next day,” Franks said. “And online too, there would need to be more than just one incident, where someone has been aggressive.”

Franks added that law enforcement agencies have historically not always prioritized harassment cases in the physical world and might be even more reluctant to devote extensive resources to investigate virtual incidents.

“There’s a long standing view that these kinds of assaults — this kind of abuse — isn’t as real and not as serious,” she said.

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Many caution that more research is needed to understand the impact of criminal or unethical behavior in VR before it’s criminalized.

Soon after her attack, Patel wrote about her experience on Medium and she was bombarded with emails telling her she was “stupid” and “ridiculous” to call her experience an assault.

“I had no intentions of being the woman who was sexually assaulted in the metaverse,” she said. “What my intention is is to share my story — this story, the story of many, in order to raise the alarm bells.”

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