Criminal law & cyberfantasy

(Delighted to welcome back alumna Audrey Guinchard, who contributes this guest post)

Is virtual reality a fantasy outside the reach of criminal law?
This provocative question about the potential regulation of virtual worlds such as Second Life attracts divergent answers:
► Some consider it an anathema for law to regulate virtual worlds. Their regulation belongs to their creators and owners, not to Governments.
► Others argue that the arm of the law could well extend to virtual words, at least to those that are not games, where participants do not have to fulfil specific and pre-established objectives.

Indeed, some problematic behaviours do sometimes fit in the definition of offences. Fraud is an easy example, and some incidents are reported about people abusing the trust or misrepresenting facts in order to appropriate property or currency that can be exchanged into real-life money, mainly US dollars.

Nonetheless, other offences, like theft, remain difficult to apply to virtual worlds.
Should we then reform the law? Are we putting too much emphasis on something that is hardly relevant for the ordinary citizen?
Given the development of a strong economy in virtual worlds, with, for example, owners and users earning a living out of Second Life, we may want to consider these questions a bit more seriously rather than dismiss it per se -- as I do in my most recent article, "Crime in Virtual Worlds: The Limits of Criminal Law", published last year in the International Review of Law, Computers, and Technology.
Regarding offences against the person and public order, the outlook is different. Unless behaviours spill into the physical world, problems will consist of words and images exchanged and produced in the virtual world between avatars that may never reveal any details of a real-life person. As such, it is difficult to link the images, still or moving, to the physical world, whereas criminal law tends to assume a link between the representation of the person in words and images and the physicality of the world.
And yet, there are evolutions in the law that show an increasing awareness and desire to tackle those issues.

The United Kingdom, for example, decided in the Coroners and Justice Act 2009 to create an offence for possessing non-photographic images of child pornography. Could the offence define as including “the image of an imaginary child” (section 65 (8)) reach the fantasy world of Second Life?

It is difficult to predict how the law enforcement will view the suitability (or not) of the new offence to behaviours in virtual worlds. Moreover, the offence raises important questions of boundaries between fantasy and the real world, questions hardly touched upon in the course of the parliamentary debates. Actually, the debates were non-existent, had it not been for the concerns raised by Parliament's Joint Committee for Human Rights -- concerns that remained unanswered by Government.
Hence, the need for further studies to understand the power of images on oneself, so as to articulate possible responses by criminal law, if responses are needed.

On September 26

On this day in ...
... 1946, Andrea Dworkin (left) was born in Camden, New Jersey. Some time after earning a bachelor's degree in literature in 1968 from Bennington College, she moved to Europe and "married a Dutch political radical." (photo credit) The couple divorced within 3 years; Dworkin later told The New York Times:

'I was a battered wife, and pornography entered into it. Both of us read it, and it helped give me the wrong idea of what a woman was supposed to be for a man.'

Dworkin became a "feminist writer and antipornography campaigner," cowriting with Catharine A. MacKinnon an antipornography ordinance that would be invalidated on 1st Amendment grounds. Among Dworkin's books were Woman Hating (1974), Pornography: Men Possessing Women (1981), Intercourse (1987), and Heartbreak: The Political Memoir of a Feminist Militant (2002). Dworkin died in her sleep, at age 58, in 2005.


(Prior September 26 posts are here, here, and here.)

No time for revival

Does the Cruel and Unusual Punishments Clause of the 8th Amendment to the U.S. Constitution forbid execution for crimes that do not result in the death of the victim?
That's a wide-angle framing of the question on which the Supreme Court's set to hear oral argument this morning in the case of Kennedy v. Louisiana.
The narrower question is whether execution for rape of a child is constitutional. The state's brief stresses the age of the victim. No surprise there. For on matters such as possession of pornography, the Court's allowed criminal punishment for conduct that the Constitution would protect if only consenting adults were involved. Such a narrow emphasis, however, obscures the question of proportionality that underpins any system of criminal justice.
Is a sentence of death grossly disproportionate and excessive punishment for the crime of rape, and therefore forbidden by the 8th Amendment as cruel and unusual punishment?
Yes.
Or so said a majority of the Court, in almost the exact same words, when it invalidated a death-penalty-for-rape in Coker v. Georgia (1977). But that was then, this is now. Justice John Paul Stevens is the only member of that majority still on the Court, and in the interim 3 decades, concerns about crime have pushed to the fore.
Concerns about crime have not, however, fully displaced the concerns that animated the Court in Coker. The concern that capital punishment for nonlethal crime evades proportionality was shared with jurists in other common law countries, briefing indicates. And there was another concern, too. Before Coker capital rape cases were brought overwhelmingly against African American defendants, as Stuart Banner demonstrated in his The Death Penalty. Outlawing such cases thus eliminated a prime source of racially disparate sentencing. One sees no reason now for revival.

(Cross-posted on Slate's Convictions blog)

On this day

On February 27, ...
... 1999, as many as 40 million voters thronged polling stations in Nigeria to elect a civilian as President. The election of Olusegun Obasanjo brought an end to 15 years of military rule in the African country whose flag's at right. Obasanjo, whose tenure has been marred by allegations of corruption, human rights violations, and environmental degradation (see example here), continues to rule as President to this day.
... 1992, in the anti-pornography case of R. v. Butler, 1 side of which had been argued by LEAF (logo below) -- the Women's Legal Education and Action Fund -- Canada's Supreme Court ruled that the country's law making the possession or distribution of obscene materials a crime would be unconstitutional if the basis for banning the materials were morality, but constitutional if the basis were promotion of equality of women and men.

On July 9, ...

... 1900, the Commonwealth of Australia was established and Australia's Constitution entered into force when Britain's Queen Victoria signed a Royal Commission of Assent (right) to those events.
... 1986, a U.S. commission issued a 1,960-page report that found "a 'causal relationship' between certain kinds of pornography and acts of sexual violence." A commission recommendation that local prosecutors seize materials "to 'literally put many pornographers out of business'' and to ''substantially eliminate obscenity businesses'" was "constitutionally foreclosed" by the Supreme Court's 1989 decision in Fort Wayne Books, Inc. v. Indiana, Linda Greenhouse wrote.
... 2004, in its advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, the International Court of Justice ruled that in building a wall around territory in Palestine, Israel acted "contrary to international law." A 2005 symposium on the decision begins volume 99 of the American Journal of International Law.