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Fantasy Crime: the Role of Criminal Law in Virtual Worlds Vanderbilt Journal of Entertainment & Technology Law Volume 11 Issue 1 Issue 1 - Fall 2008 Article 1 2008 Fantasy Crime: The Role of Criminal Law in Virtual Worlds Susan W. Brenner Follow this and additional works at: https://scholarship.law.vanderbilt.edu/jetlaw Part of the Computer Law Commons, and the Criminal Law Commons Recommended Citation Susan W. Brenner, Fantasy Crime: The Role of Criminal Law in Virtual Worlds, 11 Vanderbilt Journal of Entertainment and Technology Law 1 (2020) Available at: https://scholarship.law.vanderbilt.edu/jetlaw/vol11/iss1/1 This Article is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Journal of Entertainment & Technology Law by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. VANDERBILT JOURNAL OF ENTERTAINMENT AND TECHNOLOGY LAW VOLUME 11 FALL2008 NUMBER 1 Fantasy Crime: The Role of Criminal Law in Virtual Worlds Susan W Brenner* ABSTRACT This Article analyzes activity in virtual worlds that would constitute crime if they were committed in the real world. It reviews the evolution of virtual worlds like Second Life and notes research which indicates that more and more of our lives will move into this realm. The Article then analyzes the criminalizationof virtual conduct that inflicts "harm" in the real world and virtual conduct that only inflicts "harm" in the virtual world. It explains that the first category qualifies as cybercrime and can be prosecuted under existing law. Finally, it analyzes the necessity and propriety of criminalizing the second category of conduct, both now and in the future. * NCR Distinguished Professor of Law and Technology, University of Dayton School of Law, Dayton, Ohio. J.D., Indiana University, 1981; M.A., Kent State University, 1971; B.A., Southwestern Oklahoma State University, 1968. The author has spoken at numerous events, including the First International Conference on Legal, Security and Privacy issues in Hamburg, the Montreux Secure IT Conference in Switzerland, Interpol's Fourth and Fifth International Conferences on Cybercrimes, the Middle East IT Security Conference, the American Bar Association's National Cybercrime Conference, the Yale Law School Conference on Cybercrime and the Symposium on Internet and Privacy held at Stanford University Law School. She is a cybercrime consultant for Global CyberRisk, LLC and a member of the American Academy of Forensic Sciences. 1 2 VANDERBILT J. OF ENT AND TECH LAW [Vol. 11:1:1 TABLE OF CONTENTS I. R EAL CRIM ES .............................................................................. 4 A . H ard H arms ........................................................................ 6 B . S oft H a rm s ............................................................................... 8 1. M orality ............................................................................ 8 2. Affectivity ...................................................................... 10 3. System ic ........................................................................ 16 II. V IRTUAL W ORLDS ...................................................................... 19 A. MOOs, MUDs and MMORPGs ......................................... 19 B . Second Lives ...................................................................... 32 1. Second L ife .................................................................... 32 2. The Lesser Metaverses .................................................. 47 3. Evolving Metaverse(s) .................................................. 49 III. FANTASY CRIM E ....................................................................... 51 A . Cybercrime .......................................................................... 53 B . Fantasy Crime ................................................................... 61 1. H arm ............................................................................. 61 2. F antasy ......................................................................... 64 a. Victim less Crimes .................................................. 65 b. TraditionalCrimes ................................................ 70 i. Property H arm .................................................. 70 ii. Personal H arm .................................................. 75 aa. Virtual Rape ............................................. 75 bb. Virtual Murder and Pedophilia................ 86 IV . FINAL THOUGHTS ..................................................................... 94 "[W]hen a man doth ... imagine the Death of our Lord the King ....that... be... Treason....,1 This mid-fourteenth century statute did something we no longer do: criminalize mere thought. 2 In modern Anglo-American jurisprudence, the legal phenomenon of "crime" requires the coalescence of four distinct elements: (1) actus reus (an overt act or a culpable failure to act), (2) mens rea (a blameworthy mental state), (3) causation (the consequence of actus reus), and (4) harm (the resultant 1. Statute of Treasons, 1351, 25 Edw. 3, c. 2, § 2 (Eng.). 2. At least in later centuries, it seems to have required either an overt act of levying war against the king or speech that could be construed as treasonous. See, e.g., Benjamin A. Lewis, Note, An Old Means to a Different End: The War on Terror, American Citizens ...and the Treason Clause, 34 HOFSTRA L. REV. 1215, 1220-21 (2006); William T. Mayton, Seditious Libel and the Lost Guarantee of a Freedom of Expression, 84 COLUM. L. REV. 91, 101 (1984). 2008] FANTASY CRIME injury to one or more victims). 3 Parsing the extent to which these elements coalesced in a particular instance can be surprisingly problematic, even for conduct in the real, physical world. Our criminal law is, after all, the product of millennia of experience in the physical world. The physical world was historically the only world we could inhabit and was, as a result, the only available venue for our abiding predilection to inflict harm upon persons or property. Criminal law therefore evolved to deal with tangible, physical harms. While criminal law has, over the last several decades, expanded its scope to encompass certain "soft harms" that involve moral or systemic injuries, its bedrock principles are ultimately grounded in tangible harm. The physical world is no longer the necessary and inevitable arena of human activity. Cyberspace gives us a new, non-spatial arena in which we can conduct many, if not all, of the activities we carry out in the physical world. The availability of this new, conceptual vector for human activity has various consequences for criminal law. I have written about many of these consequences elsewhere: (1) how cyberspace challenges the implementation of the systems we use to enforce our criminal laws and control crime; (2) how it can require us to broaden the way we define certain crimes-such as theft-to encompass intangibles; and (3) how it may require us to define new crimes, such as the denial of service attacks that are used to shut down access to websites and essential services. These consequences are all important and conceptually challenging, but my task here is to analyze an even more intransigent phenomenon: crime in virtual worlds like Second Life. The analysis that follows is divided into three sections: Section II reviews the goals that criminal law is designed to achieve and analyzes the role that harm plays in the articulation and realization of these goals; its focus is on crime in the real, physical world. Section III describes the virtual worlds that are emerging in cyberspace. Section IV analyzes the issue of "fantasy crime," and considers whether criminal law should be extrapolated to encompass conduct that inflicts virtual harms. 3. See WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW 13-16 § 1.2(b) (2d ed. 2003). VANDERBILTJ OFENT AND TECH. LAW [Vol. 11:1:1 I. REAL CRIMES in "[C]rimes ...are a breach ...of the.., duties, due to the4 whole community.., its social aggregate capacity." By "real crime" I refer to crime that occurs entirely in the physical world. In real crime, both the conduct involved in the commission of the crime and the resulting harm that conduct inflicts occur in real, physical space. Crime has been an essential-if not foundational-concern of law since humans began living in organized groups. 5 Organized social life requires the orchestration of the efforts 6 and sensibilities of a diverse populace, which necessitates order. Human collectives-societies-must maintain order if they are to survive and prosper. Order has historically had two complementary aspects: external order and internal order.7 External order involves a 8 society's relationship with its physical and biological environment. Societies must implement the efforts of their individual members to deal with physical threats (e.g., earthquakes, droughts, fires) and threats posed by competing societies.9 Historically, societies have dealt with external human threats by creating a separate institution-the military-to discourage and resolve threats from "outsiders."10 Societies achieve and maintain internal order by using two complementary sets of rules. The first set-the civil rules-structures the activities of those who comprise a society in predictable, productive ways." Civil rules define relationships (e.g., ruler-ruled, husband-wife, employer-employee) and allocate tasks (e.g., farmer, teacher, mayor).12 They also set legitimate social expectations (e.g.,
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