Policing the metaverse: the reality of virtual sexual offences

The police are undertaking the first reported investigation into a “virtual rape”, which is said to have taken place in the metaverse. This case brings to the forefront a number of questions around the adequacy of the UK’s current legislation surrounding sexual offences, and whether it can cater to behaviours taking place in the metaverse.

The Daily Mail recently reported that the avatar of a girl, under the age of 16, was attacked in a virtual reality game. The girl, who is said to have been wearing a headset in the immersive setting, did not suffer any physical injuries, although has been described as having suffered psychological trauma ‘similar to that of someone who has been physically raped’.

An investigation has reportedly been launched by the police, but an initial hurdle seems to present itself: under which law could this behaviour theoretically be prosecuted?

Sexual offences in the corporeal world

According to section 1 of the Sexual Offences Act 2003 (SOA 2003), a person commits rape if:

• They intentionally penetrate the vagina, anus or mouth of another person with their penis;
• The other person does not consent to the penetration; and
• They did not reasonably believe that the other person consented.

When considering an offence of “virtual rape”, the primary issue is the requirement of physical touching between the defendant and the victim. This same issue would present itself if the victim was alleging sexual assault by penetration (section 2 SOA 2003) or sexual assault (section 3 SOA 2003).

Although there have been significant technological advancements in virtual reality software, it cannot legally (or factually) be said that anyone is actually physically touching in the metaverse. It is highly unlikely that laws setting out sexual offences could be applied, in their literal sense, to cases where the relevant behaviour is alleged to have occurred in a virtual setting. In a suitable case, the courts may be able to interpret the above provisions of the SOA 2003 so as to cover behaviours occurring in the metaverse.

One way of doing this,  in order to apply the current legislation to people’s avatars in the virtual world, would be to attribute a legal personality to these virtual beings. This could then enable the avatars’ physical touching to qualify the offence.

However, the potential legal ramifications would be very significant (and most likely a step too far for the courts, who may prefer to leave such a ground-breaking approach to Parliament). One consequence of attributing a legal personality to avatars in the metaverse could be to open up a wide range of behaviours taking place in virtual settings to other real world legislation, and thus limitations.

By way of example, in games where offences such as theft or criminal damage are part and parcel of the experience, the question could be raised whether avatars – or more realistically, their human users – could be prosecuted for these behaviours. It may be that exceptions could be made for specific games or creators, but this would put a significant onus on regulators and private companies to fall within any legal requirements. Many further questions could also be raised, including, for example, what rights (human or otherwise) those avatars may have.

Real damage

The psychological impact on people who suffer these virtual attacks cannot simply be disregarded, and it is clearly important to draw a line against certain behaviours.

With recent advancements in technology, experiences in the metaverse are more and more immersive. The use of haptic technologies for example (i.e. those relating to or based on the sense of touch) intensify experiences and could lead to traumatic physical experiences in the context of sexual offences in the metaverse. It could be that secondary ‘touching’ via virtual characters in the metaverse, and transmitted to human users through haptic devices, could provide another means of attributing liability by way of the SOA 2003.

The current legal options

As this police investigation is – to public knowledge – the first of its kind, and there is no law which specifically covers these virtual behaviours, we have to look at whether other legislations could be used to prosecute these behaviours.

Given the distress caused to the person in this case, it may be possible for an offence of harassment or stalking to be made out, in accordance with sections 2, 2A, 4 and/or 4A of the Protection from Harassment Act 1997. However, these offences require a “course of conduct”. This means that the behaviour typically must have occurred on more than one occasion and be conduct which the suspect must have known or suspected would cause alarm, or distress. These occasions can occur in quick succession, but where this only one single instance, there may be some difficulties in prosecuting it under this law.

The new Online Safety Act, which became law in England and Wales in October 2023, may also present an option for legal recourse. It was enacted with the aim of offering additional protection to children against illegal content and created a number of new criminal offences designed to tackle online sexual behaviour.

One significant change, which could have consequences in the metaverse, is the introduction of offences involving “deepfakes”. Section 187 of the Online Safety Act inserts a new section 66A in the SOA 2003, prohibiting sending a photograph or film of genitals, with the intention of causing alarm, distress or humiliation. In particular, this new provision widens the definition of film and photographs to include those which have been manipulated by computer graphics to look like someone else without their consent. Therefore, it could be argued that, if an avatar is a true likeness of the individual/victim it may be that, in certain specific circumstances, this legislation could be interpreted so as to deal with behaviours like those now being investigated by the police (although it is not clear whether this case involved a realistic-looking avatar).

New laws for a new virtual world?

At this stage, the position remains that either new laws will need to be created to legislate sexual offences in the metaverse, or the courts will need to find a novel interpretation of current legislation.

In another recent blog, before this difficult investigation was reported, we considered how the courts would grapple with the issue of sexual offences in the metaverse, and whether they would be able to stretch the law in the Sexual Offences Act 2003 to cover behaviours in this virtual realm. It seemed, at the time, that the courts and legislators would have some time to grapple with this issue; however, as is often the case with technological advancements, the time is nigh and the law and those who work with it can only try to keep up.

further information

If you would like more information on any of the issues raised in this blog, please contact a member of our criminal litigation team. 

about the authors

Alice Trotter is an Associate in the Criminal Litigation team. She recently completed her training contract at Kingsley Napley. Alice joined Kingsley Napley in 2018 as a paralegal in the Family team. She was offered a training contract with the firm in 2020.

Nicola Finnerty is a Partner in our Criminal Litigation team and a leading expert in white collar and business crime, proceeds of crime & asset forfeiture. Over the last 25 years she has been involved in many of the most high-profile, complex criminal and regulatory investigations and prosecutions, both in the UK and in matters which span multiple jurisdictions.