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.

~ by natalielaw on November 22, 2010.