Many VR games of the present day create ways to interact with other players with minimal rules governing that interaction. For example, in the games Onwards or Smashbox Arena every player is represented by a virtual avatar. The hands of the avatar correspond to the hands of that player in real life. If someone wants to tell their teammate where an enemy is located, all they have to do it point to it with their real hand, and the other players will see an avatar pointing their hand towards a building.
In summary, any general hand gestures you can perform in real life can be communicated to other players in the game, along with your voice and head location. By design the player interactions are unbounded as much as possible in order to emulate real life.
It would appear that this includes behavior and gestures that are less than desirable or possibly even criminal. As is written in Medium, Jordan Belamire was playing the VR game QuiVR when another player started to make groping gestures toward Jordan’s avatar and harassed Jordan:
[E]ven when I turned away from him, he chased me around, making grabbing and pinching motions near my chest. Emboldened, he even shoved his hand toward my virtual crotch and began rubbing.
There I was, being virtually groped in a snowy fortress with my brother-in-law and husband watching.
As VR becomes increasingly real, how do we decide what crosses the line from an annoyance to an actual assault?
Sadly it is almost certain that others have had the same unfortunate experience as Jordan. I would imagine is very difficult to police this kind of thing within a game, although as time passes I am certain clever game developers will find a way to stop such behavior. Until that time the question remains: does virtual harassment rise to the level of assault under the law? Depending on what state you live in, it very well might.
A quick primary: criminal laws like assault and battery are beasts of state law, not federal law. Each state has its own separate definition of assault. In some states, like Ohio, there is no such thing as “battery,” just different levels of “assault.” In other states, “assault” means threatening a person without actually harming them (e.g. pointing a gun without firing) and a “battery” occurs when there is actual physical harm (e.g. firing the gun).
Looking through various state laws defining assault, for one example, Montana defines assault as follows:
(1) A person commits the offense of assault if the person:
(d) purposely or knowingly causes reasonable apprehension of bodily injury in another.
This is the prototypical definition of assault taught in law schools throughout the country. The question of a virtual assault really boils down to one question: is an apprehension of bodily injury (i.e., being groped) reasonable when that apprehension is from another virtual player thousands of miles away?
I would argue that the apprehension of bodily injury is reasonable even when the person is wearing a VR HMD safely within the confines of their own home, and the harasser is a full continent away. In many states, the threat of injury is sufficient to commit an assault even if it would be impossible to commit actual bodily injury. A good analogy is that a robber commits assault when they point a gun at a bank teller, even if the gun is empty. The bank teller’s point of view matters, not the robber’s.
VR headsets are expensive because they perform a singular task very well: emulating reality. A user’s sense of vision, hearing, and positioning are taken over by the VR system. It is very easy to (purposefully) trick a VR user that they are going to experience imminent harm. In fact, many games (such as Ritchie’s Plank Experience, which places you on a wooden plank extending out from a skyscraper) count on it for their entertainment value. If it is considered reasonable to be scared of falling off a skyscraper in Ritchie’s Plank Experience, it should also be considered reasonable to be afraid of an imminent harmful bodily contact such as groping.
The ramifications of committing assault over the internet in a videogame are wide-reaching, which is why a judge might not be willing to rule virtual harassment as an assault. We would be fining and potentially jailing players for activity which occurred in a virtual world. The reasonableness of the apprehension necessarily depends how “deep into” the virtual world the person allegedly assaulted is. If they are a kind of person who just can’t get VR, is their apprehension reasonable? This kind of analysis is messy, and I can see judges shying away from it.
Age-based statutes get tricky as well. For example, minors can easily look like adults in a game, and could commit assault while in that form. Alternatively, a minor could be assaulted by an assailant unaware of the minor’s age.
With the increasing VR player base, I believe it is inevitable that a virtual groping case is going to reach the courts. It is likely that other torts and causes of action besides assault (e.g., sexual harassment) will take the lead in those cases. In any event, such a case would be sure to turn heads in the legal community and will certainly set some kind of legal precedent regarding virtual reality.