Should Child Pornography Law Interfere with Consenting Adults’ Fantasy Exploration Through Virtual Ageplay?

Worlds exist online where children that actually move and speak have sexual relations with adults in real time.  Second Life is one of these worlds.  Because Second Life users are required to accept the Terms of Service Agreement prior to creating an account, and part of that is verifying that they are at least 18 years of age, I am writing this blog entry under the assumption that all SL users are adults.

As you already know, Second Life allows its users to create their own avatars, which are three-dimensional characters that are used to represent the user in online environments.  Some users adopt a childlike appearance, innocently choosing youthful avatars; however, others favor less socially acceptable activities and use their young counterparts accordingly.  “Virtual Ageplay,” a popular online pastime, is sexual roleplay that occurs in a virtual world (between two consenting adults) where one avatar appears to be a child and the other an adult.

The “new Wonderland,” which disappeared in 2007, was a place within Second Life where “children” were subjected to violent sexual encounters with “adults.”  It was a place where children could be bound and tortured in a dungeon located in the basement of a Wonderland high school.  A place where children avatars spoke of being held against their will and raped repeatedly.  This is because in Second Life, avatars are free to do whatever their creators please.  However, the sexual partners of these “minors” were “little more than high-tech puppets manipulated by adults in an entirely computer-generated environment,” and no real minors were actually subjected to the violence.

In Pedophiles in Wonderland: Censoring the Sinful in Cyberspace, a comment written for Northwestern University School of Law’s Journal of Criminal Law & Criminology, Gabrielle Russell analyzes the widely publicized issue of ageplay in virtual worlds, and discusses the merits of past and present regulations criminalizing such behavior.  Recognizing that online sexual expression has taken many forms over the years, Russell notes that it continues to evolve in response to technological innovation.  The advent of email, chat rooms, and instant messaging created a means for people to use explicit language to experiment sexually; and the existence of virtual worlds allow people to interact as avatars not only through language, but through graphical displays, gestures, and pseudophysical contact.

Virtual environments give people the unique opportunity for consequence-free experimentation, allowing individuals the chance to explore their sexuality and “toy with taboos like sadomasochism, prostitution, ageplay, and group sex.”  As Russell said, “the fact that all of this can be done anonymously, or pseudonymously, allows people to voice thoughts and feelings, and explore parts of themselves that real-world norms compel them to suppress.”

Sounds great (for those who are into that kind of stuff), right?  Well don’t get too excited.  Despite the “spirit of freedom that reigns in places like Second Life,” there are certain behaviors governments will not tolerate in any space, real or virtual…and ageplay is one of those.     Congress has expressed an interest in regulating sexually explicit communication between consenting adults that involves the mere idea of minors, namely virtual ageplay; however, Congress has not yet been successful at banning this activity.

Child pornography law is distinct from obscenity law, even though it grew out of obscenity law precedents.  Obscenity law deals with sexual content featuring adults, whereas child pornography law deals with content featuring minors.  Because the government has claimed a special interest in protecting minors from the harms incident to their involvement in pornography, child pornography law imposes stricter controls on sexual materials which involved children.  Although Russell’s comment discussed whether virtual ageplay could be banned under either child pornography law or obscenity law, this blog will only analyze virtual ageplay in the context of child pornography law.

As the digital imaging and editing technologies became more readily accessible, technologically savvy individuals interested in child pornography discovered a way around child pornography laws.  These individuals created what appeared to be sexually explicit images of children without involving actual minors by digitally modifying adults in photographs to look like children.  Because of the threats posed by virtual child pornography, Congress passed the Child Pornography Prevention Act (CPPA) in 1996.  In its findings to support the ban on virtual child pornography, Congress stated that “the appetites of a pedophile are just as excited by virtual images as real images.”  In addition, Congress stated that virtual images, just like real child pornography, can be used to effectively seduce minors.  Because of Congress’ findings, the definition of child pornography was broadened to include “any image that ‘is, or appears to be, of a minor engaging in sexually explicit conduct’ or has been promoted in a way that ‘conveys the impression’ that it depicts minors engaging in sexually explicit conduct.”

It is important to remember that in order to guarantee total freedom of expression, the majority must always protect the right of a minority, even a minority of one, to express the most outrageous and offensive ideas.  Even though I think all forms of child pornography should be banned, and that anyone who uses any form of child pornography (including virtual child pornography) to satisfy some sexual fantasy is immoral, I don’t think that they should automatically have fewer rights.  Congress’ findings make sense, and I agree that child pornography can have lasting effects on children.  However, Congress’ argument banning virtual child pornography is not persuasive enough.  The point was to protect real children from being harmed.  If the virtual ageplay is performed between two adults, and minors are not being harmed from the actions taken by the avatars, then I’m not sure how virtual ageplay can be prohibited since no actual minor is involved in any way.  In fact, minors are technically not even allowed to use virtual worlds such as Second Life.

My concerns on that point were somewhat remedied when the Supreme Court struck down two provisions of the CPPA dealing with virtual child pornography in Ashcroft v. Free Speech Coalition. The section broadening the definition of child pornography was found to be overbroad because it would have suppressed speech that was neither obscene nor injured any minor in its production or dissemination.  The Court held that “the harms the government claimed grew from virtual child pornography were not intrinsically related to the sexual abuse of children, and therefore could not serve as a sufficient basis for suppression.”  Rejecting the government’s first argument that virtual child pornography could be used just as effectively as real child pornography by pedophiles to seduce children, the Court stated that “things innocent in themselves cannot be outlawed simply because they are sometimes used to achieve an ‘immoral’ goal.”  The government’s second argument, that virtual images were just as good at “wheting the appetites” of pedophiles and thereby encouraging them to abuse actual children, was also rejected because “the First Amendment forbids the government to suppress speech that might encourage illegal acts unless it is ‘directed to inciting or advocating imminent lawless action and is likely to incite or produce such action.”  That is not the case with virtual ageplay.  It is important to remember that no actual child is being depicted in virtual ageplay, and because there is no child, there is no underlying crime…unlike “real” child pornography.

In 2003, Congress passed the Prosecutorial Remedies and Other Tools to End the Exploitation of Children Today (PROTECT) Act, which modified both child pornography law and obscenity law.  Replacing certain parts of the CPPA, which were ruled unconstitutional, the PROTECT Act modified child pornography law by expanding the definition of child pornography to include “any digital or computer-generated image that is ‘indistinguishable from . . . that of a minor engaging in sexually explicit conduct’ or any image that has been created or modified to make it appear that an ‘identifiable minor is engaging in sexually explicit conduct.’”

Russell argues that no matter how immersed one becomes in a virtual world, or how emotionally affected one is by the events that occur there, or how real the virtual world starts to feel, the entire realm is only computer-generated.  She continues that if one stepped off a virtual cliff or stuck a virtual knife through the heart of a computer-generated person, no one would suffer actual injury.  Because certain interactions have fundamentally different effects and consequences in the real world versus the virtual world, consequences for criminal actions in virtual worlds should often be different from the consequences of the same actions in the real world.  Russell suggests that the law should deal with this disconnect by first determining how virtual events affect people’s real lives.  In the case of virtual ageplay, there really isn’t an effect on people’s real lives.  Even though one adult is playing the role of a child, it is still simply virtual sex between two consenting adults, and there is no crime in that.  If the adult avatar, however, was using the virtual world as a way of enticing and inducing real minors to meet them in the real world, then a crime has been committed.  But the distinct difference between the two is that an actual minor is not involved.

This is different from what I’ve been talking about in my serial blog.  Those cases involved a defendant who thought he was communicating with an actual minor.  Through online conversations with the “minor,” the defendant knowingly persuaded, induced, enticed, or coerced a minor to engage in prostitution or any sexual activity for which any person could be charged with a criminal offense, or attempted to do so.  In those cases, the defendant thought he was communicating with an actual minor, whether it really was a minor or not.  His intent was to persuade, induce, entice, or coerce the minor to engage in illicit sexual activity.  The Circuit Courts have made it clear that an “actual minor” is not required in these situations using the Internet because it is the defendant’s intent that the courts are looking at.  So as long as they believed they were talking to a minor, they could be prosecuted.

Virtual ageplay is completely different.  The adult avatars are entirely aware of the fact that the minor avatar they are having sexual relations with online is really an adult.  They are just pretending there is a minor in order to fulfill some fantasy, or whatever their reason might be.  But because virtual ageplay does not involve any real minors, child pornography laws should not apply.  In addition, although some might find sex between avatars involving a childlike character arousing, the images that are produced on the computer screen as a result of the participants’ actions would probably not fall under the definition of child pornography because the images do not involve actual children.  The Supreme Court created the stricter standard for child pornography law in order to protect children from being harmed in the production of the materials.  Because children are not directly harmed from the images produced during virtual ageplay, the stricter standard should not apply.

The new definition of child pornography created by the PROTECT Act does not apply to ageplaying avatars, since avatars are “still more cartoonish than realistic,” and therefore are far from being “indistinguishable” from an actual photograph of a minor.  But, that’s not to say the PROTECT Act’s definition of child pornography won’t apply to ageplaying avatars in the future.  If technology improves, or I guess I should say when technology improves, allowing computer users to create truly lifelike avatars, the images produced as a result of virtual ageplay could potentially constitute child pornography.

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~ by natalielaw on November 22, 2010.

9 Responses to “Should Child Pornography Law Interfere with Consenting Adults’ Fantasy Exploration Through Virtual Ageplay?”

  1. I agree with the idea that if it looks like a real child or close enough to real then it should be considered part of the illegal acts under the PROTECT Act.

    I don’t think we should regulate the sex acts of completely fake avatars. But I do think we should regulate them when they look just like children.

    This whole subject appears to have crossed my line. I’m usually in the camp that says “Don’t like it, Don’t do it” when it comes to regulated activities a majority doesn’t approve. However, this type of activity falls outside of that to me and should be limited whenever possible.

  2. Likewise, I find “age play” (which I find a really amazing euphemism when the reality is that it’s virtual statutory rape and torture of children) particularly disgusting. The problem is, I can’t think of a principled basis for arguing for its criminalization. I’ll call the stricken provisions of the CPPA that are not covered by PROTECT the “marginal material.” That’s the subject of my comment, not the material that continues to be criminalized under PROTECT. This marginal material is obviously entirely virtual and unrealistic. The vast majority of people probably find it disgusting and offensive, but those are the same arguments I reject and oppose when it comes to restricting or censoring violent video games. I’m also left wondering if the part of PROTECT that applies to depictions “indistinguishable” from actual minors engaging in sexual activity passes constitutional muster. I see the case for criminalizing digital modifications of actual child pornography–it still ultimately depicts a real child, but when it’s entirely fabricated, it’s a much harder question for me. This issue really tests my beliefs as to what the limits of the First Amendment should be.

    However, the “whet the appetite” argument just sounds like conjecture, fear, and uncertainty to me. The counterargument to “whet the appetite”, at least as far as violent video games goes is that it reduced actual criminal activity by serving as a ‘harmless outlet”. I have my suspicions as to which way it actually cuts but nothing to substantiate it beyond just a suspicion. I figure I’d continue to draw the parallel from above.

  3. This reminds me a lot of when we were discussing rape on Second Life. Here, like with rape, there is no actual sexual act occurring. Do I think that it’s disgusting to want to pretend sex with a child? Of course. Do I think that an avatar can even pretend to stand in for a real child? No, and therefore I think regulation is silly and pointless.

    I understand PROTECT and the argument that if you literally cannot tell whether porn is virtual or real, then it needs to be regulated. Otherwise, any child porn producer could claim that they were just really good with computer graphics. But an avatar, while maybe looking young, is still a drawing, an image of what someone thinks a child looks like. I just don’t buy that someone having virtual sex with a young avatar is even going to find their pedophilic needs being satisfied, much less take the stem of going to the real world

  4. If watching a commercial about a hamburger can make you crave McDonald’s why is it so difficult to believe that watching avatars of children having sex could make a deviant want to lash out with real children? Years and years of advertising have shown that people ARE affected by what they see. Commercials for food, movies, songs all have an effect and cause a reaction in people. This effect in people was so defined that regulation of “subliminal messages” ensued. Clearly, people can be enticed to act by what they see, including pedophiles.

    True, age-play is done by consenting adults, but watching a highly detailed animated avatar having sexual encounters with a highly detailed animated child avatar is likely going to cause an arousal in a person who naturally leans toward that behavior. The lines that blur between what is real and what is fake tend to merge and the result is the inability to even decipher whether these actions are just a game. When I first watched the Final Fantasy the movie with my friends, it took us about 20 minutes to realize it was animated. With the advancement of graphic effects, permitting unregulated porn that looks so real basically defeats the purpose of the child pornography laws to protect children, like the PROTECT Act. The definition that children be “harmed” is entirely objective. How many people have been investigated and even accused of child pornography for taking a completely nude photo of their baby? What about 17 yr olds who send photos of themselves to their significant others with their consent? Who is being harmed in either of those scenarios? Yes child pornography laws still apply.

    Sure it can be argued that it is not a good enough reason for Congress to regulate virtual child porn because an offender might go out and assault a real child, but to me that argument has no merit. It is also true that drinking copious amounts of cough syrup can get you high and result in grave consequences. However, just because it is possible that a teenager may use this as a method to get high/drunk does not mean they will. Yet the gov’t has made it nearly impossible to buy a bottle of cough syrup without getting carded to ensure you are an adult. All on a mere possibility that it might happen and in an effort to protect children. Why should the mere possibility that a child molester who uses virtual porn to get aroused and abuse real children not be enough to result in gov’t regulation as well?

    On the other hand I do understand the argument that a person who is likely to commit a crime with a child may be very aware that age-play is a virtual game and use this outlet to vent, express themselves, and even try to control their real-life response, but after a while, I think the end result would still be the same — it would cause the person behind the avatar to crave the real experience.

    Since this type of deviant behavior is so repulsive with such grave consequences, I think it is best that chlid pornography laws apply and have a restricting effect on this behavior.

    Even porn kingpin Stroker Serpentine, aka Kevin Alderman was relieved that SL banned the practice; that should tell you something.

  5. I also have a hard time wrapping my head around the idea that Virtual Ageplay can be termed child pornography when it involves two consenting adults. (I think the strongest argument here is the fact that the terms of service for platforms like SL require a user to be 18 years old and the intent behind the actions is not to interact with minors, but rather adults “pretending” to be minors.) It almost seems like a perfect alternative for those individuals who may attempt to commit those same acts in real life. However, I do see where the line can be crossed and the dangers it could create in the protection of children. In my opinion, it seems that intent is probably key.

  6. I like the lines currently delineated by US law. The PROTECT Act covers child pornography that looks indistinguishable from the original, which might cover Final Fantasy-esque characters should they blur the line between virtual and real too much. Whether pedophiles, or individuals with pedophilic interests (are they really pedophiles if their experiences involve interactions with other consenting adults?), are influenced or helped by participating in virtual age play is a VERY gray area – as evidenced by the responses to these blogs and the CCPA. To me, this is more than a lack of complete clarity on an issue, it’s a giant question mark with little proof on either side. I wonder if an issue such as this is really ripe for legislation just yet. As some countries ban, and others allow virtual age play we may reach some kind of clarity on this issue in the future, but until there is something more backing either side’s argument, I have to agree with the Supreme Court on this one. The rights at stake on either side are too great to ignore.

    *Also, I have never, and will never be tempted by anything McDonald’s puts out – in any medium. 😉

  7. Very interesting issue. It’s so hard to craft a statute restricting speech that is consistent with the constitution that I’m not surprised it took a couple tries. I think the first attempt was admirable, but that the Supreme Court has the right analysis regarding the separation of the speech from the harm intended to be prevented. In my view, although I agree the underlying behavior is reprehensible, such “placebo” interaction where no actual minors are involved should not be outlawed because it would violate the first amendment and I believe there is a chance that allowing these people to pretend with other adults may keep them from actually involving children.

    Even the original measure is better than what they recently did in Australia: http://boingboing.net/2010/01/28/australian-censor-bo.html. Although the intent of the Australian action was the same ( to curb pedophilia), it applies to women who “appear” underage, which is a little broad (puns are great!).

    While the PROTECT Act is much closer to actually hitting the behavior it intends to restrict, I agree that when the technology catches up, either the statute will have to be amended or some amount of behavior between two consenting adults will be chilled or criminalized.

  8. Really good job summarizing this info Nat.

    I see Kate’s point that it is like SL rape (I actually wrote my last serial blog before reading this, promise!) where there is no real victim. However, My concern goes a step further to the desensitization or the notion that eventually a pedophile will want more than SL age play. S/he may come to desire real contact with a real person.

    While the risk of this may be slim, and the same risk is present with the SL rape scenario, I just think it is inherently different when helpless kids become the potential victim.

    Unfortunately, I do not think that SL “VCP” – in the form of age play or other CGI – will be banned any time soon. While we may or may not be closer to an age where avatars will look “virtually indistinguishable” from a real child, fora like SL necessarily operate via use of avatars, which necessarily depict a CGI. Therefore, even if it looks exactly like a real human, every user knows it is not a real human. Thus, I think the PROTECT Act will never go further than regulating images found on the internet, i.e. it will never include avatars within its scope.

  9. The ‘no victim’ thing certainly is troubling in this realm of the law. I like the parallel to the Second Life rape issue. While both are certainly disgusting to many, there are people who are into that and they have the First Amendment to argue behind.

    I certainly understand what people are talking about when they say they find the conduct offensive, yet can’t think of a reason to make this behavior illegal because of the fact it’s between two consenting adults and no harm is done. It’s a difficult issue, and it’s certainly problematic to think just because the majority finds it reprehensible, that the minority should get punished even though no harm is caused. I still believe there will be a rallying majority when something happens that causes the media to jump all over the issue. Mass panic will almost certainly ensue.

    It’s not enough that certain platforms put in their TOS that people can’t engage in these sort of things. Under that circumstance, there will be incentive to create new worlds only for that purpose. That’d probably just add to the people who engage in this sort of activity if there were worlds created for that specific purpose. It’s like the Craigslist adult ad thing: If one is shut down, 10 more are going to pop up the next day to fill the void. And those are going to be beyond the reach of the US or any other Western government.

    Fantastic write-up of the issues. Thanks!

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