Seminar Paper

Legal Issues of the 21st Century

School of Law

Santa Clara University


Dear Santa Clara District Attorney Hamilton Burger:

            The proceeding memorandum presents the likelihood of conviction of the defendant, William Hearst as to the matters discussed previously in your office.


I.               Statement of Facts

As with any technology, there are potential threats of criminal misconduct.  Deep

Virtual Reality has proven this presumption to be validated.

            Deep Virtual Reality just recently became available to the consumer two years ago.  With this invention, Mr. Barclay of Enterprise Technologies opened up a wide berth of exploration in the realm of home entertainment.  Many people now experience movies without leaving the comfort of their homes.  Some users prefer to travel back in time with Deep Virtual Reality by recreating past events.  The experience is as realistic as actually being present.  All of this occurs in a chair allowing one to relax while he or she does whatever he or she wants to in a virtual reality world.  While most users enjoy a multitude of scenarios, some recent developments have taken a turn for the worst.  A number of safeguards are imposed into the programs to prevent any injury to the consumer.  Some of these safety functions include padding the chair in which the persons sit, motion stabilizers, and a program within each scenario that monitors the conditions of the user so that no potential harm can occur.    This leads to the discussion at hand.

“JAMES BOND PUNCHED ME!” “MYSTERIOUS SHADOW MAN ENTERED MY VIRTUAL REALITY WORLD AND ATTACKED ME!” “STRANGE ALIEN APPEARED AND TRIED TO EAT ME!”  As you know, these are some of the current headlines that the mayor was so kind to provide you with.  As of last night, Officer Hooker apprehended the defendant, William R. Hearst for alleged criminal assault and battery. Luckily, Officer Hooker was able to apprehend Hearst before he was able to do any further harm.

Officer Hooker gathered evidence of Hearst’s whereabouts through informants and the use of Deep Virtual Reality.  Officer Hooker used Deep Virtual Reality to draw Hearst out by becoming a potential target.  Sure enough, Hearst attacked Officer Hooker as Bigfoot by attempting to bite him, however, Hooker ran away.  Hooker used state of the art technology to trace Hearst’s exact whereabouts.  Hooker had a bruise on his arm due to the attack as he moved about in his chair.

Apparently, Hearst is responsible for three of the latest attacks that have occurred among Deep Virtual Reality consumers in Santa Clara, California. Mr. and Mrs. Hand were allegedly assaulted at different times in the use of their Virtual Reality.  Mr. Hand was in the middle of a spy scenario when James Bond appeared and tried to punch him.  Mr. Hand sustained no injuries as he exited the program.  Mrs. Hand was lunged at by a shadow while working on her prize-winning roses in Virtual Reality.  She immediately shifted in her seat, then exited the program sustaining no injuries.  Mr. Kent was also attacked while relaxing in a four star hotel on Mars when a vicious alien appeared and threatened to eat him.  He fell out of his seat and sustained a minor cut to the head.

The California Courts have never dealt with such an issue of assault and/or battery in the realm of Deep Virtual Reality.  Mr. and Mrs. Hand are pressing charges for assault.  Mr. Kent and Officer Hooker are pressing charges for assault and battery.  The charges would be misdemeanors punishable with a possible fine and/or imprisonment.  By getting a successful conviction as to Hearst, the hope is to deter future violations like Hearst against consumers using their Deep Virtual Reality.  


II.             Analysis of California Law

A.    Criminal Assault


1.     Definition of Criminal Assault

An assault is an unlawful attempt, coupled with a present ability, to commit

violent injury on the person of another.  California Penal Code, Section 240.  An assault is merely an attempt to commit battery.  People v. Colantuono, 7 Cal.4th 206, 26 Cal.Rptr.2d 908 (1994).


2.     Elements of Criminal Assault

The elements of a criminal assault are stated in the definition above.  There must be an unlawful attempt to commit violent injury.  There must be an actual present ability to commit violent injury on the person of another.  The last element goes to the intent of the assailant.  For criminal assault, one must have either the intent to batter, hit, strike, or wrongfully touch a victim or one must have a general criminal intent to do an act, which is inherently dangerous to human life.  In Re Gavin T. 66 Cal.App.4th 238, 77 Cal.Rptr.2d 701 (1998).





B.    Criminal Battery


1.     Definition of Criminal Battery

A battery is any willful and unlawful use of force or violence upon the person of another.  California Penal Code, Section 242.  A battery is a consummated assault.  People v. Colantuono, supra.


2.     Elements of Criminal Battery

The elements for battery are stated in the above definition of a battery.  The elements include any unlawful or willful force or violence, any force or violence, and directly or indirectly.


C.   Application of Criminal Assault to Hearst

1.     Unlawful attempt to commit violent injury

In the case against Hearst, an unlawful attempt to commit violent injury must be proven.  Since Hearst was only present in the virtual world, no violent injury could occur in that world.

An overt act toward the immediate accomplishment of the intended assault will supply the necessary element of unlawful attempt.  People v. Corson 221 Cal.App.2d 579, 34 Cal.Rptr. 584 (1963).  The physical act of Hearst projecting himself into each of the plaintiffs’ Virtual Reality scenarios could be seen as an overt act toward the immediate accomplishment of the assault.  Hearst took steps to insure that the plaintiffs would be injured by his attack on them in the virtual world.  It is well known that the virtual programs run an internal program that monitors the user’s condition.  This helps protect against surprises to the user that could cause them to jerk in the seat.  Hearst projected himself into the plaintiffs’ scenarios causing an act that is not accounted for by the program.  This act can propel the user to jerk in the seat and thereby, get hurt.

The plaintiffs can further rely on People v. Yslas 27 C. 633 (1865).  There, the court stated, “If he is advancing with intent to strike his adversary and comes sufficiently near to induce a man of ordinary firmness to believe, in view of all circumstances, that he will instantly receive a blow unless he strike in self- defense or retreat, the assault is complete.”  Id.  The act of making one strike in self-defense or retreat will be an unlawful attempt.  The physical act of appearing in the plaintiffs’ scenarios, attacking them and causing them to retreat, i.e. move in the chair, would constitute an unlawful attempt.

Hearst can also claim that even if there was an unlawful attempt, the attempt can not be for violent injury since virtual reality is not a place where one can get hurt.  However, any wrongful act committed by means of physical force against the person of another, regardless of the degree or kind of physical force used, constitutes a “violent injury” under the statute.  People v. Flummerfelt 153 Cal.App.2d 121, 52 Cal.Rptr. 733 (1957).  Any degree of injury constitutes a violent injury.   The fact that Hearst used physical force to appear in the virtual world and cause plaintiffs to injury or possibly injure themselves in the real world would constitute a violent injury regardless of the degree of that injury. 

            2.  Present ability to commit violent injury

This element presents another obstacle to the plaintiffs.  Again, Hearst was only in the virtual world, so there was no present ability to commit any violent injury in the virtual world.  This is supported because no case has involved a situation where injury could not occur due to external factors.  People v. Valdez, 175 Cal.App.3d 109, 220 Cal.Rptr. 538 (1985).  Since Deep Virtual Reality is not real, no injury can actually occur within it. 

Hearst did use physical force to appear in the virtual world and by attacking with this appearance, Hearst caused injuries to Mr. Kent and Officer Hooker in the real world.  These injuries prove that there can be harm in the virtual world regardless of the degree of harm.  To have present ability, “the defendant must have maneuvered himself into such a location and equipped himself with sufficient means that he appears to be able to strike immediately at his intended victim”.  175 Cal.App.3d at 112.  Hearst used physical force to maneuver himself into a location where he could strike immediately and cause harm to the plaintiffs by making them shift in the chair.  Present ability in virtual reality could therefore, be shown.

            Hearst could argue that there is no present ability because there is no reason for plaintiffs to be alarmed at his presence.  No physical danger is presented in virtual reality so there would be no cause for shifting in the chair even if surprised by an attacker and therefore, no ability to inflict injury.  However, back in the 20th Century, a type of technology was implemented at theaters called “3d.”  Many users of this technology would jump even though no apparent danger was presented.  It is reasonable to assume that a surprise attacker that enters another’s virtual reality program without consent would cause one to shift in their seat leading to the element of present ability.  Each of these cases proves that people shift in there seats regardless of the fact harm can not occur in virtual reality as a natural human reaction.  This human response would be meet the present ability element.

3.     Intent to Commit a violent injury

An intent to commit a violent injury on another person is an essential element in a prosecution for assault.  People v. Burres 101 Cal.App.3d 341, 161 Cal.Rptr. 593 (1980). For criminal assault, one must have either the intent to batter, hit, strike, or wrongfully touch a victim or one must have a general criminal intent to do an act, which is inherently dangerous to human life.  In Re Gavin T. 66 Cal.App.4th 238, 77 Cal.Rptr.2d 701 (1998).  Hearst would satisfy the element of intent to assault.  He used physical force to appear before each plaintiff, attack or attempt to attack each plaintiff, thereby causing them to shift in their seats.  This is the general intent to do an act, which is inherently dangerous to human life.  Hearst puts himself into a situation where he surprises the user of the virtual reality and then attacks them.  This appearance and attack leads to harm in the real world or could lead to harm in the real world so it would be considered inherently dangerous to do so.

            Hearst could argue that there is no intent to commit the type of harm that results from his appearance.  His intent is merely to frighten.  This would fail however, because there need not be a specific intent to cause a particular injury.  People v. Carmen 36 C.2d 768, 228 P.2d 281 (1951).  The harm caused is a direct result of Hearst’s actions.  There is no requirement that he intended this specific harm just a result that this harm occurred or could occur.





D.   Application of Criminal Battery to Hearst

1.     Willful and Unlawful use of force

Officer Hooker and Mr. Kent must show a willful and unlawful use of force.  Hearst will argue that the physical force that he used amounted to criminal negligence rather than general intent to inflict harm on another.  Criminal negligence has never been used in California as a battery.  People v. Laura 44 Cal.App.4th 102, 51 Cal.Rptr.2d 402 (1996).  It was already shown that general intent existed however, because Hearst had to take steps to get into Officer Hooker and Mr. Kent’s virtual reality scenarios proving that there was a general intent to harm rather than negligence.

2.     Force or violence

The next element that must be proved is that there was force or violence used. This element would be rather easy to prove.  Violent injury can include any wrongful act done by means of physical force against another.  People v. Bradbury 151 C.675, 91 P. 497 (1907).  The wrongful physical force was Hearst physically projecting himself into Hooker and Kent’s virtual scenarios.  Hooker and Kent were injured as a result of Hearst’s actions against them.

Even if Hooker and Kent lose this argument, they could still prevail because Hearst could be found liable for committing an act that was inherently dangerous.  If a person commits an act that is inherently dangerous to others with conscious disregard for human safety, i.e. acts willfully, the intent to commit battery is assumed.  People v. Vasquez 85 Cal.App 575, 259 P. 1005 (1927).  Hearst acted willfully by entering Hooker and Kent’s virtual scenarios regardless of the fact that it could lead to injury to them.  The force or violence of battery would be assumed. 


3.     Direct or indirect

The last element is that the force was direct or indirect.  The force may be directly applied, as by punching, kicking, or tripping the victim.  People v. Whalen 124 Cal.App.2d 713, 269 P.2d 181 (1954).  The force may be indirectly applied in a variety of ways.  People v. Wright 52 Cal.App.4th 203, 59 Cal.Rptr.2d 316 (1996).  The force in this case would be direct in the fact that Hearst entered the virtual reality scenarios and then caused the plaintiffs to shift in their seats.  The force could also be indirect in that Hearst was not actually present but still caused the plaintiffs to shift in their seats.  Either way, the force was applied. 


E.    Damages

Hearst would most likely be convicted on all counts.  As to each plaintiff, it would occur as follows:

            Mr. and Mrs. Hand would prevail for the assault committed by Hearst as shown above.  Assault is punishable by fine not exceeding one thousand dollars, or by imprisonment in the county jail not exceeding six months, or by both.  California Penal Code, Section 241.4.  Therefore, the assault could amount to $1000 dollar fine, up to 6 months in jail or both.  A felony could not be charged against Hearst because specific intent is needed and another attempt to do something else such a murder of Mr. Hand.  This was not present in this case and could not be done in virtual reality so a misdemeanor would occur.

            Mr. Kent would prevail on both accounts of assault and battery.  Assault would fall under the same fine and jail time as above.  Battery would, however, be different.  A battery is punishable by a fine not exceeding two thousand dollars or by imprisonment in a county jail not exceeding six months or by both.  California Penal Code, Section 243.  The same reasons apply as to why no felony could be brought.

            Officer Hooker would also prevail on both accounts of assault and battery.  Both of these categories would fall under the same Penal Codes mentioned above.  However, since Hooker was attacked while performing his duties as a police officer, there is an enhanced penalty.  The enhanced penalty is that the penalty for assault is now up to a year in prison in the county jail or state prison and no fine.  This would not apply though because Hearst had no way of knowing that Officer Hooker was acting as a police officer while in virtual reality.  There is also an enhanced penalty for battery against a police officer that is conducting his or her duties as an officer.  That enhancement is that the imprisonment can go up to one year.  Again, Hearst would not fall under this enhancement because he did not know that Officer Hooker was an officer and had no reason to know that he was. 


III.           Conclusion

The District Attorney of Santa Clara should proceed with his arraignment of William R. Hearst.  It is my conclusion that Hearst will probably be convicted on numerous counts.  This should provide sufficient case law or precedent for prosecuting any further violations of assault and battery by interlopers of a consumer’s virtual reality world.  Assuming all the elements can be met, Hearst will be convicted and either pay a hefty fine and/or serve some jail time for his despicable acts.  The District Attorney should move ahead as soon as possible so further actions such as this are diverted.



                                                                                    Alan Mason

Alan Mason

                                                                                    Law Clerk to DA of

                                                                                    Santa Clara