Definition of Virtual Crime

Part of the problem with the very notion of “virtual crime” lies within the word “virtual” itself, which has become increasingly devoid of meaning. In some cases, “virtual” is used to refer to things that are practically the same in effect as the term modified, and in other cases it simply refers to representations of things “created, simulated, or carried on by means of a computer or computer network.” There needs to be a consensus as to one definition that should be used for virtual.

A narrower definition of virtual crimes might equate “virtual crimes” with “cybercrimes,” defining cybercrimes as “crimes committed against a computer or by means of a computer.” Obviously, computers can be utilized in the furtherance of criminal conduct, and there are many state and federal statutes that expressly criminalize certain types of conduct involving computer networks (these are considered actual crimes and they have real world consequences).  An example is that virtual copyright infringers spend jail time in real penitentiaries. Basically, there is a risk of conflating the actual with the virtual because doing so makes “virtual” computer crimes seem less serious than real crimes.

Advances in technology have begun to blur the line between virtual and actual reality. Anglo-American common law tradition crimes have 3 elements: conduct (actus reus), intent (mens rea) and a forbidden result or “harm.” Historically, crimes were committed in the real world, which means all 3 elements occur—more or less simultaneously—in the physical world. The law of crimes has therefore been concerned with imposing liability and sanctions (e.g., death, incarceration, fines) for conduct that results in the infliction of corporeal harms, such as injury to persons or property or the unauthorized taking of another person’s property. If we assume that cyberspace is separate from the real world, then we will have to decide if the laws for the real world can apply to crimes that might take place in the cyberspace.

If criminal law is based on preventing an infliction of harm then we would have to say that the real world laws can’t apply to the cyberspace. If cyberspace is being used to commit real crimes then it should be treated as such, but if it is being used to commit a new category of crimes then we should come up with a new way to handle them by developing specialized legislation.

To determine if virtual crime should be treated as real crime then we first must decide if virtual items and properties currently being bought and sold by residents of virtual worlds should be regarded as property in a legal sense. There doesn’t seem to be an obvious reason that exists to prohibit the recognition of legal interests in intangible virtual properties. Especially when those objects can be traded into real money for real property.

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~ by demetreastewart on October 21, 2009.

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