21st Century Legal Issues
(DF) Suppose we have deep VR and a new form of pornography--full sense recording. Is playing the tape infidelity? You might want to think about this from both a legal and a social standpoint--if you know your spouse has "listened" to the recording, do you feel as though you have been cheated on?
Pornography is extraordinarily profitable. Estimates for 2003 place industry revenues at $57B worldwide, outranking the revenues of all professional football, baseball, and basketball franchises combined.[i] If deep VR becomes a reality, the market for full sense pornography would be unimaginable. I believe the technology for something potentially “better than the real thing” would pique almost everyone’s curiosity. The experience of having a different partner of ideal height, weight, eye color, and so on, without the risk of pregnancy, disease, or social outcast, would seemingly bring the best of all worlds with the fewest drawbacks. Add to this the fact that $20B of the $57B was revenue from home video,[ii] suggesting the home or a similar private setting is the preferred place for such sexual exploration. VR could, of course, be similarly enjoyed in the home. Also consider the $11B spent on escort services.[iii] Conceivably, deep VR could replace prostitution altogether. One could imagine a world where, instead of running girls through the streets, pimps simply invest in this technology (or are replaced by entrepreneurial computer programmers) – i.e. pandering could consist of specific VR programs that could be rented (possibly sold outright?) to a paying customer. Customization could make for some very intriguing options.
The question presented above is whether a computer program of such intimacy and such realism could fairly constitute ‘infidelity’ in an otherwise faithful relationship. ‘Infidelity’ is legally defined as “unfaithfulness to an obligation, especially marital unfaithfulness.”[iv] Marital obligations are generally represented through marital vows, one of which is typically a promise to “forsake all others”.[v] So the question, at least if one looks at these terms in the literal sense, is whether the term ‘others’ may be construed to include entities that are not necessarily human beings. It is at least arguable that bestiality would fall well within both the traditional and legal definition of ‘marital infidelity’, but it seems that this is wrong more for the sexual act itself than for any sort of mental unfaithfulness to the spouse. If this is considered infidelity, it would be difficult to argue that the mental bonds of marriage were violated by anything more than a betrayal of trust and a possible disgust or distrust of the person committing the act, and not necessarily the feelings of emotional betrayal typical with a cheating spouse. This suggests that both the physical act and the state of mind of the person committing the act are relevant in determining whether infidelity has occurred, and that a sexual act with a non-human could still constitute infidelity. This could weigh for or against VR pornography. Under this definition, it would depend completely on the context of each case (questions might be raised involving knowledge of each party of the acts done in VR, willingness to pursue alternative sexual acts, etc.). This would unfortunately be a difficult definition to apply on a broad scale, if for no other reason that it is impossible to understand the state of mind of the person committing the act except by what is shown through his or her conduct.
If we look at the situation in terms of “adultery”, this language is generally interpreted as requiring “voluntary sexual intercourse” between a married spouse and someone other than his or her marital partner.[vi] ‘Sexual intercourse’ is defined as requiring “insertion of the penis into the vagina”.[vii] On these grounds, it has been held that a homosexual act by the female spouse did not constitute adultery because the term required insertion of a penis into the vagina.[viii] In this case, since there would be no physical insertion within the VR, this could not constitute adultery no matter what conduct was exhibited within the program.
It is likely that neither of the above terms will be looked at literally in analyzing this VR hypothetical. In at least one sense, it doesn’t matter. Divorce is often granted today simply for ‘irreconcilable differences’, ‘irretrievable breakdown of the marriage’, or a similar broad term that could encompass inappropriate VR use, whatever that is deemed to be. Today, divorces can be granted for a “consuming interest in pornography” and a “constant use of the computer”.[ix] One study showed 10% of adults admitting to an Internet pornography addiction.[x] If this technology becomes workable, you can make porn more real, more believable, and therefore more desirable for those who seek this type of experience, whether they search for sexual gratification or simply an escape from reality. I believe the 10% rate above will increase, probably dramatically if careful precautions are not taken. In determining court action or legislative decisions, perhaps they will address a few of the following policy concerns.
The question initially asked whether one would feel cheated on if his or her spouse experienced this type of VR session. This seems entirely dependent on the couple. Some may be very open about this. They may know that it’s not “real” even though all their senses say it is. They come out within a certain time and are attentive to the spouse’s needs. Most importantly, there is no sense of replacement – no sense that you don’t need the other person because you can go into the VR realm and be satisfied both emotionally and physically. We may well reach a point where pornography seems to be today, where the majority of people do explore at least a little here and there, but it’s seen as generally acceptable as long as you don’t really talk about it, and as long as there is nothing “strange” in your collection.
A lot of people will lean the other way, perhaps feeling insecurities based on jealousy or maybe just having a different ideal of what a committed relationship is supposed to be. I do not really believe this is workable. You will, of course, have some that have no desire to explore these sensations – or that simply believe the consequences that could follow are too high. But it seems that the majority of people will at least experiment. There is no risk of disease (absent a computer virus – haha!) or pregnancy, and there are no evidentiary concerns when your experience is virtual. For example, there will be no mysterious phone calls in the middle of the night or the stereotypical lipstick on the collar to worry about. So my first point is: this will occur frequently within relationships, even if the other partner does not know, because there is very little risk of getting caught. As risk goes down, more people will take action. My second point is: anything in VR will almost surely be viewed as not as bad as really cheating (i.e. with another real person). For those who want a little excitement but don’t really want to have an affair, this could be an acceptable alternative. Why is this? It may be that we are so far from this technology that it is hard to picture anything so real that it could be analogous to an actual affair. Or, it could be that infidelity is seen as bad because of either a) the risk of disease, pregnancy, potential disruption of the family, or b) the violation of trust when an affair occurs with another person. Is the other person’s reality a key here? Is it a worry of potentially losing a loved one to another real person, or is it the physical act and state of consciousness of the ‘cheater’ that creates a violation of trust, thereby bringing down the relationship? If it’s the latter, then the act and mental state could surely be sufficient to constitute infidelity, even within the VR world. But it seems that this conduct will be acceptable, perhaps under limited conditions, or if nothing else, could never be seen as such a breach of marital faithfulness as an actual affair. However, it is possible that this is just rooted in the more consequence-fearing side, having very little to do with whether or not a spouse was actually “faithful”.
Outside of the marital context, there are definite benefits that would come with this technology. It could be used medically to assist those having sexual difficulties, either with or without a partner (and possibly within a marriage). Otherwise lonely individuals could experience physical and mental sensations that are simply unavailable to them in the real world. One could even find a companion, a mental connection with someone in VR, although whether this is a good thing overall for the person is clearly debatable.
There is also a much darker side to this technology. This would obviously need considerable research before implementing in any way, but if you look at certain medical conditions, there could be treatments that would at first seem horrifying to society. Consider a child molester who continues to assault children. If VR child pornography were developed for individuals who could not otherwise adjust their behavior, it could serve to minimize harms suffered by actual individuals. In other words, if there is no known medical solution to his problem, if there is this alternative, it is obviously better to have the harm done in the VR world than in reality. The question just becomes whether this has any effect on curbing these desires, or if it would just encourage the criminal to accept his behavior as it is (or encourage further criminal conduct). A similar program could be written for rapists. Acting out a rape fantasy could get out the aggression and power play that accompanies the normal criminal act. I only propose these as possible treatments. And if this does become a reality, debaters on this subject should keep in mind that VR in child pornography and other obscene material will be available anyway, and probably more easily accessible (computer code instead of actual videotape – also maintains anonymity), and that some studies should be conducted to determine if such treatment could have any affect.
In conclusion, it is unlikely that VR pornography will fall within “adultery”, but it could fall within “infidelity”, dependent on the particular couple and society’s stance at that time. However, the terms themselves are largely irrelevant, since the addictions, breaches of trust, or other potential consequences of VR will already be covered under ‘irreconcilable differences’ or a similar doctrine.
Similarly, whether one will feel cheated is dependent on the couple, but I suspect this will become accepted, though not openly, as casual pornography viewing is accepted today. There are an incredible amount of policy considerations that would need to go into any legislation on this subject. However, if the technology does arise, there should be an acceptance of it within Congress, because if not, the black market will surely find enough of a market to bring additional societal problems. Careful weighing of restrictions on coding, possible licensing agreements or some other means of tracking individuals could be attempted, but for now it is unclear what technology will be available for such purposes at that time. I firmly believe this should stay out of the courts altogether until this is properly debated and decided upon in the Legislature. There are simply too many variables that need consideration, and judicial activism, particularly with no real precedents to guide decision-making, could only complicate matters further.
[iv] Black’s Law Dictionary 782 (7th ed. 1999).
[vi] In re Blanchflower, 150 N.H. 226 (2003).
[vii] Webster's Third New International Dictionary 30 (unabridged ed. 1961) at 441
[viii] In re Blanchflower, 150 N.H. at 228-29 (2003).
[ix] , 0071602S, Superior Court of Connecticut, Judicial District of Ansonia - Milford, at Milford, 2001, Conn. Super. LEXIS 1867, July 9, 2001.