By Kristin Hoffman, Staff Writer
On Oct. 26, 2016, CNN Money published an article online about a young woman by the pseudonym of Jordan Belamire who was groped in virtual reality.[1] Belamire was playing an online video game in which she used a microphone to project her own voice into the virtual world.[2] Another player, BigBro442, noticed that she was a female, approached her avatar, and grabbed her.[3]
Belamire yelled, “Stop!,” which apparently emboldened BigBro442. He then chased Belamire’s avatar around the virtual world making grabbing and pinching motions near her chest.[4] He even went so far as to shove his avatar’s hand at Belamire’s private area.[5]
Belamire was certainly upset about this incident, but she was even more disturbed by the response that she got online.[6] A quick search on Twitter yields results such as, “@jordanbelamire Your casual use of ‘sexual assault’ belittles those that have suffered actual sexual assault. Shame on you,”[7] “@VRWomen @jordanbelamire please explain how someone can be assaulted in any form using VR. This seems to be someone whining just to whine,”[8] and “@VRWomen @jordanbelamire This is honestly the stupidest thing I’ve ever read. You should be ashamed. It’s VR FFS! VIRTUAL reality.”[9]
What happened to Belamire is certainly deplorable, but what remedies are available to someone harmed in this way? Perhaps there could be remedies in tort such as battery or assault.
The Restatement Second of Torts says that an actor is liable for battery if “he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and harmful contact with the person of the other directly or indirectly occurs.”[10]
In Fisher v. Carrousel Motor Hotel, Inc., the court held that actual physical contact with the plaintiff’s body was not necessary to constitute battery, that touching anything connected with his person when done in an offensive matter is sufficient.[11] In Fisher, the plaintiff had been forcibly dispossessed of a dinner plate and shouted at in a loud and offensive manner, thus subjecting him to indignity and humiliation.[12]
The question relevant to Belamire is whether courts would extend this decision to include a virtual avatar as something so connected with the person. Comment c of the Second Restatement of Torts says, in part, that “Since the essence of the plaintiff’s grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body, it is not necessary that the plaintiff’s actual body be disturbed.”[13]
In fairness, the comment is alluding to contact with things such as a cane or clothing. But the language regarding something “so intimately connected with one’s body as to be universally regarded as part of the person”[14] is intriguing when thought of in the context of virtual reality. People playing virtual reality games fully immerse themselves in the games, taking on the personas of virtual avatars.
Jesse Fox, an Ohio State professor who researches social implications of virtual worlds, describes this phenomenon. “If you highly identify with your avatar and are portraying yourself in an authentic manner,” says Fox, according to TechieVirals.com, “you[’]re going to feel violated. … If you are being groped in the real world versus a virtual world, the visual stimuli do not differ. … You are seeing it. It is appearing to happen to your own body.”[15]
With microphones, players like Jordan Belamire give their avatars voices — their voices. It is a compelling argument, but it raises complex legal and ethical issues. If the courts were to accept it, it may lead to a slippery slope of increased litigation. It would, however, be interesting to see how the court would interpret this requirement in the light of virtual reality avatars.
The Restatement Second of Torts says that an actor is liable to another for assault if “he acts intending to cause a harmful or offensive contact with the person of the other or a third person or an imminent apprehension of such a contact, and the other is thereby put in such imminent apprehension.”[16]
There is certainly an argument for that in the context of virtual reality sexual harassment. BigBro442 acted intending to cause a contact, or at least the apprehension of that contact, with Belamire — and did so.[17] Would the court, however, consider the apprehension to be “imminent”? The nature of virtual reality play is that you may be connected with players anywhere around the world who you may never meet in real life. Whether that hampers the argument of “imminent” harm would be a decision the courts would have to make.
The effects that technological developments have on the law are never-ending. As technology allows individuals to exist in both the real world and in virtual reality, it blurs the lines in what constitutes a contact with regard to tort law. Society may not be ready to recognize these types of interactions as battery and assault, but there are certainly compelling arguments that they might be.
Sources
[1] Sarah Ashley O’Brien, She’s Been Sexually Assaulted 3 Times—Once in Virtual Reality, CNN Money (Oct. 24, 2016), http://money.cnn.com/2016/10/24/technology/virtual-reality-sexual-assault/.
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] @realAtheistGOP, Twitter (Oct 22, 2016, 11:56 AM). https://twitter.com/realAtheistGOP/status/789903159758127104.
[8] @vrsteve82, Twitter (Oct. 23, 2016, 9:51 AM). https://twitter.com/vrsteve82/status/790234200263757824.
[9] @YoungstPeartree, Twitter (Oct. 23, 2016 9:58 AM). https://twitter.com/YoungstPeartree/status/790236079597256704.
[10] Restatement (Second) of Torts §18(a)(b).
[11] Fisher v. Carrousel Motor Hotel Inc., 424 S.W.2d 627, 629 (1967).
[12] Id.
[13] Restatement (Second) of Torts §18 (comment c).
[14] Id.
[15] Sexual Harassment in Virtual Reality Feels all too Real ‘It’s Creepy Beyond Creepy’, Techie Virals, http://www.techievirals.com/sexual-harassment-in-virtual-reality-feels-all-too-real-its-creepy-beyond-creepy/ (last visited Oct. 31, 2016).
[16] Restatement (Second) of Torts §21(a)(b).
[17] O’Brien, supra note 1, at 1.
