Sex Play in Virtual Worlds (2012)

Washington and Lee Law Review
Volume 66 | Issue 3
Article 9
6-1-2009
Sex Play in Virtual Worlds

Robin Fretwell Wilson
Recommended Citation
Robin Fretwell Wilson, Sex Play in Virtual Worlds, 66 Wash. & Lee L. Rev. 1127 (2009),
http://scholarlycommons.law.wlu.edu/wlulr/vol66/iss3/9
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Wilson: Sex Play in Virtual Worlds
Sex Play in Virtual Worlds

Robin Fretwell Wilson*
Table of Contents
I. Introduction ................................................................................
II. Protecting Children in Virtual Worlds from Sexual
Exploitation ................................................................................
A. The Failure of Internal Screens to Exclude Children
from A dult Spaces ...............................................................
B. Virtual Sex-Who's Diddling Whom? ..............
C. The Inadequacy of External Filters ......................................
1127
1134
1135
1138
1143
III. Is Virtual Sex with a Child a Crime? ....................... . .. . . . .. . . .. . . . .. . . 1145

A. Ballooning Definitions of Child Sexual Abuse .................... 1146
1146
1. Noncontact Offenses .....................................................
1150
2. Proxim ity to the Child ...................................................
3. Ignorance of the Child's Age ........................................ 1153
B. The Difficulty with Extending Existing Crimes to Virtual
1159
Sex w ith a Child ..............................................................
IV. Challenges to Reaching Virtual Sex with a Child ....................... 1162
V . C onclusion ..................................................................................
1174
I Introduction
When children play in proximity to adults, many of us naturally worry
about less-than desirable results. This fear has existed since children began
* Professor of Law and Law Alumni Faculty Fellow, Washington and Lee University
School of Law. Many thanks to Ann Bartow, Deven Desai, Josh Fairfield, Llewellyn Gibbons,
Brian Klebba, J.D. King, Garrett Ledgerwood, Erik Luna, Pamela Melton, Joan Shaughnessy,
and the participants of this Symposium and of the World Congress on Family and Children's
Rights in Halifax, Nova Scotia, for their thoughtful comments and advice. I am indebted to
George Davis, Stephanie Hager, Joe Mercer, Anna-Katherine Moody, and Meghan Monaghan
for their diligent research assistance.
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Washington and Lee Law Review, Vol. 66 [2009], Iss. 3, Art. 9

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66 WASH. &LEE L. REV 1127 (2009)
playing stickball on urban streets or kickball on suburban playgrounds.' It now

animates discussions of children playing in virtual worlds. 2 The FBI's
"Parent's Guide to Internet Safety," for example, focuses on preventing sexual
predators from approaching children online and explains how parents can
recognize when their children have been contacted by a sexual predator.
International authorities also have focused on sexual predators. 4
These fears have precipitated concrete responses. In April 2008, a
Congressional subcommittee met with virtual world creators to discuss the risks
to children. 5 In February 2009, MySpace banned over 90,000 registered sex
1. See Robin Fretwell Wilson, Children at Risk: The Sexual Exploitation of Female
Children After Divorce, 86 CORNELL L. REV. 251, 259-62 (2001) (noting the stereotypical
image of child molesters as "strangers in trench coats" loitering near school yards despite the
fact that such men could not account for the 1 to 3 million cases of child sexual abuse that occur
each year). Two recent examples illustrate the visceral concern that arises when adults gravitate
to children's play areas. In 2007, a California court ordered Jack McClellan, a self-described
pedophile, not to come within ten yards of any place where children congregate. Robert Jablon,
Order Targets Self-DescribedPedophile,ASSOCIATED PRESS, Aug. 24,2007. McClellan raised
suspicion after authorities discovered his website discussing his interest in young girls, replete
with photos of children in public places. Id. In the second case, a twenty-nine-year-old
convicted pedophile posed as a twelve-year-old and enrolled at a local middle school. Amanda
Lee Myers, Sex Offender Pleads to 7 Criminal Charges,ASSOCIATED PREss, Sep. 11, 2008.
Authorities eventually arrested him for fraud and possession of child pornography. Id.
2. See Megan Twohey, Kirk: Second Life Dangerousto Kids, Says Online Network is
Vulnerable to Predators, CHI. TRm., May 6, 2008, at 2, available at http://archives.
chicagotribune.com/2008/may/06/news/chi-online-predator-alert-06-mayO6 (noting that the
rapidly expanding virtual world of SecondLife poses a risk for children). Before the advent of
social networking sites, concerns about the risks to children playing online focused on chat
rooms and pornography. See Sean Alfano, Study: ChildrenBombarded with Online Porn,
CBSNEWS.coM, Feb. 5,2007, http://www.cbsnews.com/stories/2007/02/05/tech/main2431433.
shtml (last visited Sept. 29, 2009) ("Forty-two percent of Internet users aged ten to seventeen
surveyed said they had seen online pornography in a recent twelve-month span.") (on file with
the Washington and Lee Law Review).
3. See FEDERAL BUREAU OF INVESTIGATION, A PARENT'S GUIDE TO INTERNET SAFETY,
available at http://www.fbi.gov/publications/pguide/parentsguide.pdf (noting that children,
especially adolescents, sometimes use the Internet to seek out sexual material or relationships, a
behavior that sex offenders often exploit).
4. For example, the United Kingdom's House of Commons Committee on Culture,
Media, and Sport published a report in 2008 regarding child safety online, which described the
UK's Child Exploitation and Online Protection Centre. HOUSE OF COMMONS, CULTURE, MEDIA
AND SPORT-TENTH REPORT, July 31, 2008, available at http://www.publications.
parliament.uk/pa/cm200708/cmselect/cmcumeds/353/35302.htm The Centre seeks "to identify,
locate, and protect children from sexual exploitation and online abuse," and to improve the
management of high risk offenders. Id. The report suggested increasing user awareness of
sexual predators, making it easier to report solicitation or harassment to sites and civil
authorities, and mandating human moderation in interactive sites, especially those designed for
children. Id.
5. See generally Online Virtual Worlds: Applications andAvatarsin a User Generated

SEX PLAY IN VIRTUAL WORLDS
1129
offenders from its site and turned over their names after receiving a subpoena
from the Attorneys General of Connecticut and North Carolina.6 MySpace
could take this protective stance because the KIDS Act of 20087 immunizes
internet service providers from suits for banning persons registered with the
national sex offender database.8
As these examples illustrate, to date, concerns for child safety in virtual
worlds and social networking sites have focused almost exclusively on the risks
posed by adults in children's spaces. 9 Little attention has been given to the
risks to children who play in adult spaces not intended for them.10 This Article
Medium, Hearing of the Subcomm. on Telecomm. and the Internet, 110th Cong. (2008)
[hereinafter Online Virtual Worlds], availableat http://energycommerce.edgeboss.netlwmedia/
energycommerce/040108.ti.hrg.virtual-worlds.wv.
6. Jenna Wortham, MySpace Turns Over 90, 000 Names of Registered Sex Offenders,
N.Y. TIMES, Feb. 4, 2009, at B4. Facebook received a similar subpoena and is still working
with officials to comply. Id. A year earlier, forty-nine state Attorneys General commissioned a
prestigious task force of experts to examine the risks posed by sex offenders. See, e.g., Brad
Stone, New Scrutiny for FacebookOver Predators,N.Y. TIMES, July 30, 2007, at Cl; Anne
Barnard, MySpace Agrees to Lead Fight to Stop Sex Predators,N.Y. TIMES, Jan. 15, 2008, at
B3. The task force was led by Harvard University's Berkman Center for Internet& Society and
included executives from Facebook, MySpace, and Linden Lab. INTERNET SAFETY TECHNICAL
TASK FORCE, ENHANCING CHILD SAFETY & ONLINE TECHNOLOGIES 2 (2008), available at
http://cyber.law.harvard.edu/pubrelease/isttfg. When that task force concluded that online
bullying and peer-to-peer harassment presented much greater threats to children than online
solicitation by sexual predators, Connecticut Attorney General Richard Blumenthal criticized it
for downplaying the threat posed by online predators and for relying on outdated research. Brad
Stone, Despite News Reports, Task Force Finds Online Threat to Children Overblown, N.Y.
TIMES, Jan. 14, 2009, at A16.
7. See 42 U.S.C. 16915a-16915b (2008) (requiring convicted sex offenders to
register all internet identifiers).
8. See id. 16915b(c)(5)(A) ("A civil claim against a social networking website,
including any director, officer, employee, parent, contractor, or agent of that social networking
website, arising from the use by such website ofthe National Sex Offender Registry, may not be
brought in any Federal or State court.").
9. See Jessica S. Groppe, Comment, A Child's Playgroundor a Predator'sHunting
Ground?-How to Protect Children on Internet Social Networking Sites, 16 CoMMLAw
CONSPECTUS 215, 216-17 (2007) (arguing that the danger posed by sexual predators on the
Internet can be combated best with a comprehensive national campaign-combining the efforts
of parents, children, site administrators, and law enforcement-to keep predators off social
networking sites and to report solicitation).
10. The exception would be a recent note, Caroline Meek-Prieto, Note, Just Age Playing
Around? How Second Life Aids andAbets ChildPornography,9 N.C. J. L. & TECH. 88 (2008),
which argues that Second Life facilitates virtual child pornography and child abuse due to the
difficulty in investigating and apprehending perpetrators in virtual worlds. While these are
interesting observations, this Article focuses on the act of virtual sex and whether, and when, it
would constitute a real-world crime against a child.
On the eve of publication of this Article, the Federal Trade Commission (FTC) issued a
Consumer Alert directed at parents, warning that some virtual worlds provide the "online

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66 WASH. &LEE L. REV. 1127 (2009)
explores those risks. In particular, it examines sex play in virtual worlds, a

burgeoning phenomenon, and asks whether adults who engage in sex play with
children may be prosecuted under state law crimes designed to protect children
from sexual exploitation.
For all its virtues outlined in this volume," Second Life is "awash in sex
and porn.' 2 In SecondLife, with the help of"pose balls,"'13 an avatar can freely
engage in sex in "private spaces and online sex clubs," selecting from among
dozens of different sexual positions.' 4 A player can equip her avatar with
genitalia, purchased for as little as $150 Lindon dollars or less than $1 US
dollar. 15 For extra pizzazz, a player can purchase provocative clothing and
even "torture devices" like those used in real-world dominatrix games.' 6
Avatars may chat during sex play via the keyboard or, if both players have the
requisite technology, talk to one another through their avatars, making it
possible to combine racy "pillow talk" with the virtual sex. 17 For purposes of
equivalent of a red-light district" and that the "anonymity that avatars provide can encourage
people to 'act out' behaviors that may be considered inappropriate, particularly for tweens and
teens." Consumer Alert, Federal Trade Commission, Virtual Worlds and Kids: Mapping Risks
(Jan. 2009), http://www.ftc.gov/bcp/edu/pubs/consumer/alerts/alt038.shtm (lat visited Aug. 31,
2009) (on file with the Washington and Lee Law Review). The FTC plans to publish a larger
report on the subject in the upcoming year. Id.
11. See Joshua A.T. Fairfield, VirtualParentalism,66 WASH.& LEEL. REv. 1215, 122 122 (2009) (listing the benefits of virtual worlds); Robert Bloomfield & Benjamin Duranske,
ProtectingChildren in Virtual Worlds Without UnderminingTheir Economic, Educational,and
Social Benefits, 66 WASH. & LEE L. REv. 1175, 1178-83 (2009) (same).
12. See Tom Rawstome, Living a Second Life, a Fantasy World Awash with Sex and
Porn,MVAre ONLINE, Nov. 13, 2008, http://www.dailymail.co.uk/news/article- 1085536/TOMRAWSTORNE-Living-Second-Life-fantasy-world-awash-sex-porn.htm (last visited Sept. 29,
2009) (on file with the Washington and Lee Law Review).
13. Pose balls permit avatars to engage in a range of activities, such as dancing and
walking. Caliandris Pendragon, AnimationsforBeginners,SECOND LIFE INSIDER, Oct. 25,2006,
http://www.secondlifeinsider.com/2006/10/25/animations-for-beginners/ (last visited Sept. 29,
2009) (on file with the Washington and Lee Law Review).
14. See Jonathan Richards, Second Life Sex Bed Spawns Virtual Copyright Action,TMEs
ONLINE, July 4, 2007, http://technology.timesonline.co.uk/tol/news/tech-and-web/article
2025713.ece (last visited Sept. 29, 2009) (on file with the Washington and Lee Law Review).
15. As one Gawker blog explains, Second Life's "cock shoppe" stocks a variety of
different penises. Chris Mohney, Genitals,Guns and MerchandiseinSecond Life, GAWKER,
Mar. 1,2007, http://gawker.com/tech/hypewatch/genitals-guns-and-merchandise-in-second-life240820.php (last visited Sept. 29, 2009) (on file with the Washington and Lee Law Review).
Options include a "solid gold penis with flames dancing around the head," to one blogger's
ultimate choice, a penis that performs "autofellatio." Id.
16. See Mitch Wagner, Sex in Second Life, INFORMATIONWEEKINFO, May 26, 2007,
http://www.informationweek.com/news/software/hosted/showArticle.jhtml?articlel)= 199701944
(last visited Sept. 29, 2009) (on file with the Washington and Lee Law Review).
17. See Second Life, http://secondlife.com (last visited Sept. 29, 2009) (advertising

SEX PLA Y IN VIRTUAL WORLDS
1131
this Article, "virtual sex" occurs when two (or more) avatars engage in a sexual
act that graphically unfolds onscreen. While virtual sex does not occur in every
virtual world, 18 it can emerge whenever the world's software enables graphic
sexual animations and users choose to create those animations. 9
In addition to SecondLife, sites providing occasions and places to engage
in virtual sex are spreading fast. RedLightCenter.com and Sociolotronare just
a few of the sites making money on virtual sex. 20 RedLightCenter.comhelps
participants meet in the real world by allowing players to state a preference to
how
do so. 2 1 This bridging of the virtual and real worlds raises
22 the question,
often will virtual sex lead to hook-ups in the real world?
Even when sex between players stays wholly "on world," the boundary
between the virtual and real worlds may be more porous than many realize.
Bloomfield and Duranske, for example, predict that players in virtual worlds
will soon be able to feel "thumps" on their torso when hit by a weapon23
industry.
compliments of a vest originally developed for the medical
Castronova reports that teledildonic devices, connected to a computer by a USB
port, now provide direct stimulation so that "many elements of the sexual
encounter are already entirely virtualized and robotized. 2 4 These "augmented
SecondLife's instant message and voice capabilities); see also Bonnie Ruberg, Getting Started
with Sex in Second Life, VILLAGE VOICE, June 19,2007, at 1 ("SecondLife sex is a combination
of the visual and the verbal.").
18. Other virtual worlds shared by adults and children, like World of Warcrafiand Lord
of the Rings Online, do not enable avatars to act out the kind of explicit sexual acts focused on
in this Article.
19. See Mallory Simon, Video Game's User Content Spawns Naughty Web "Sporn",
CNN.cOM, July 31, 2008, http://www.cnn.com/2008/TECH/07/30/spore.sporn/index.html (last
visited Sept. 29, 2009) (discussing the development in programs that allow user-generated
content, such as Spore, of sexually-themed creations, like "Spom") (on file with the Washington
and Lee Law Review).
20. While RedLightCenter.com charges nothing to sign-up and download the software,
"participating in its more lurid pleasures requires paying $20 a month." Patrick Day, RedLight?
GreenLight, L.A. TIMES, Feb. 4, 2007, at 18. Sociolotroncosts $4 for the first month and $9.95
per month after that. Sociolotron,http://www.sociolotron.com/website3/signup.htm (last visited
Sept. 29, 2009) (on file with the Washington and Lee Law Review).
21. RedLightCenter.com, http://www.redlightcenter.com (last visited Sept. 29, 2008).
22. For a discussion of the criminal and policy implications of real-world contact between
adults and children, see Part III.B.
23. Bloomfield & Duranske, supra note 11, at 1198-99.
24. Edward Castronova, Fertility and Virtual Reality, 66 WASH. & LEE L. REv. 1085,
1091 (2009); see also Llewellyn Joseph Gibbons, Law and the Emotive Avatar, 11 VAND. J.
ENT. & TECH. L. 899, 906-07 (2009) (discussing the use of haptics, or "the science of simulating
sensory perceptions like pressure ... [that] permit users to physically interact with virtual
worlds," and arguing that haptics "create a clear physical connection between the avatar and the
individual").
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reality" technologies push virtual experiences and objects down into real space,
erasing the boundary between the virtual world and the real world.
Despite the fantasy element, players do not view their avatars as separate
from their real-world identities. 25 Yee illustrates that the way users "behave
and interact with others in these environments is very close to how they behave
and interact with others in the material world.. . . In other words, most users
are simply being themselves rather than experimenting with new identities or
personalities., 2 6 Just as a player's real identity impacts her virtual one, a
player's virtual identity impacts her real one. Summarizing two empirical
studies of an actual online community, World of Wareraft, Yee and coauthors
conclude that "self-representations have a significant and instantaneous impact
on [the players'] behavior ....
While avatars are usually construed as
something of our own choosing-a one-way process-the fact is that our

avatars come to change how we behave. 2 7 Players "take these environments
very seriously."2 8 Consider just one example. In October of 2008, Japanese
authorities jailed a woman "on suspicion of illegally accessing a computer and
manipulating electronic data" because she killed her "online husband's" avatar
25. See Nicholas Yee, The Psychology of Massively Multi-User Online Role-Playing
Games: Motivations, Emotional Investment, Relationships and Problematic Usage, in
AVATARS AT WORK AND PLAY:
COLLABORATION AND INTERACTION IN SHARED VIRTUAL
ENVIRONMENTS 187,203 (R. Schroeder & A.S. Axelsson eds., 2006) ("[Olur virtual identities
and experiences are not separate from our identities and experiences in the material world.");
Gibbons, supranote 24, at 905 ("[T]he avatar's virtual experiences have an emotional effect on
the individual, and the individual's social and cultural norms affect the avatar's behavior. Thus,
the avatar is more than merely an arbitrary symbolic representation of the individual, but rather
an extension of that individual.").
26. Yee, supra note 25, at 196.
27. Nicholas Yee, The Proteus Effect: Behavioral Modification Via Transformations of
Digital Self-Representation 103-04 (June 2007) (unpublished Ph.D. dissertation, Stanford
University), availableat http://www.nickyee.com/pubs/DissertationNickYee.pdf. Using a
sample of 76,843 individual characters on World of Warcraft over a period of seven days, the
authors found that avatar height and attractiveness were significant predictors of performance,
defined as the characters' level in the game. Id. at 43. In a second study of forty undergraduates
in which participants randomly received an avatar that was shorter or taller than an oppositegender confederate, the authors found that participants who received taller avatars "negotiated
more aggressively in subsequent face-to-face interactions than participants given shorter
avatars." Id. at iv-v.
28. Yee, supra note 25, at 196; see also id. at 197 (noting that "romantic relationships
seem to occur with significant frequency" in virtual worlds, "which may be more intimate, more
intense, [and] more salient than real-world relationships"). Yee further notes that because
players may "optimize their self-presentation," form impressions "of the sender by inflating the
few pieces of information that the sender has optimized," and "reallocate cognitive resources
typically used to maintain socially acceptable nonverbal gestures in face-to-face interactions,"
this creates a "cumulative effect ... that the interaction becomes more intimate and positive."

1133
after he abruptly divorced her avatar. 29 Noting that relationships and

experiences in virtual worlds "can rival those of the physical world," Yee
argues that "[w]hatever [virtual worlds] are, or will become, one thing is clear.
They are not just games. 30 If Yee is correct, virtual sex between two players is
anything but make believe.
Virtual sex between adults happens about as often as real sex between
adults-that is to say, all the time. 31 And why wouldn't it? It's fun, it's kinky,
the players get off on it3 2 -and it's no one's business. Just as the State does,
and should, generally stay out of the sex lives of consenting adults in the real
world, the same principle applies in virtual worlds.33 But virtual sex involving
an actual child-that is, when a child controls one of the avatars engaged in a
virtual sex act-is another matter entirely. It implicates the State's interest in
preventing the exploitation and sexualization of children, just as other forms of
child sexual abuse do.
This Article asks whether an adult who engages in virtual sex with a child
may be subject to prosecution under existing laws prohibiting sexual
exploitation of children and concludes that in many states the adult would be.34
The application of existing criminal statutes to virtual sex with a child follows
the gradual expansion of the classic definition of sexual abuse-namely, sexual
intercourse with a known minor-to include noncontact offenses, offenses in
which the adult honestly did not know the child's true age, offenses perpetrated
over electronic media, like the telephone, and offenses to which the child
consented. While this application of existing crimes pushes the envelope in
29. JapaneseWoman Arrestedfor'Virtual-World' Murder,ASSOCIATED PRESS, Oct. 24,
2008, http://www.foxnews.com/story/0,2933,443767,00.htmi (last visited Sept. 29, 2009) (on
file with the Washington and Lee Law Review). Online affairs have also ended real-life
marriages. VirtualAffair Leads to Real Divorcefor UK Couple, CHINA DAILY, Nov. 15, 2008,
http://www.chinadaily.com.cn/world/2008-11/15/content_7208199.htm (last visited Sept. 29,
2009) (reporting that an English woman filed for divorce from her real-life husband after she
discovered his virtual relationship with another woman on Second Life) (on file with the
Washington and Lee Law Review).
30. Nick Yee, The Demographics, Motivations, and Derived Experiences of Users of
Massively Multi-User Online GraphicalEnvironments, 15 PRESENCE: TELEOPERATORS AND
ViRTuAL ENviRoNMENrs 309, 325 (2006).
31. See Bloomfield & Duranske, supra note 11, at 1192 (noting that virtual worlds "with
unfettered content creation.., appeal to otherwise marginalized groups, including groups of
people who use the spaces to role-play non-mainstream sexual practices with other users").
32. See, for example, the sex swing on RedLightCenter.com.
33. See infra Part IV (discussing the First Amendment implications of prosecuting adults
for engaging in virtual sex with children).
34. It is possible that children who engage in virtual sex are also committing a crime. See
infra note 197 and accompanying text (discussing the prosecution of teens for "sexting").
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66 WASH. & LEE L. REV. 1127 (2009)
new and radical ways, it is consistent with the underlying rationale of these
statutes: To protect children from premature sexual stimulation by adults for
the adults' gratification.
Part II illustrates that children sneak into sites meant for adults with
relative ease. It then teases out various scenarios in which virtual sex may
occur and describes the graphic, interactive sexual exchanges in which children
may participate. Part III then examines a number of state law offenses,
including child molestation, taking indecent liberties with a minor, statutory
rape, and other offenses against children. This Part charts how the application
of existing crimes to virtual sex with a child builds on already broadened
notions of child sexual abuse but serves the child protection rationales
underpinning these statutes. Part IV briefly considers a number of challenges
to the application of existing crimes to virtual sex with a child, including
challenges under the First Amendment of the United States Constitution. It
argues that while the First Amendment protects nonobscene virtual sex between
adults, the same may not be true of virtual sex involving an actual child. This
is so because this sex act, albeit virtual, involves an actual child, and because a
number of core questions remain unresolved-such as whether virtual sex is
conduct or mere words, whether sanctioning adults for virtual sex with people
who turn out to be children would be too chilling of speech, and whether realworld law can penetrate the "magic circle" surrounding virtual worlds. Part V
concludes that while adults cannot be prohibited from engaging in nonobscene
virtual sex with one another--even if one or both adults uses a child-like
avatar-adults playing sex games with an actual child may face prosecution
under existing criminal statutes. The take away message for adults interested in
virtual sex: Know whom you are diddling virtually.
1. Protecting Children in Virtual Worldsfrom Sexual Exploitation
An estimated 8.2 million American children spend time in virtual
worlds.35 The emergence and widespread popularity with children of virtual
worlds like Second Life have caused authorities to ask whether children could
be exploited in these spaces. On April 1,2008, members of the Congressional
House Subcommittee on Telecommunications and the Internet met with leaders
of the online community to discuss the advantages and dangers of virtual
35. See Online Virtual Worlds, supranote 5 (testimony by Congressman Engels) (citing
findings by the Subcommittee on Oversight and Investigations based on study of thirteen- to
seventeen-year-olds).

1135
worlds.36 Philip Rosedale, founder and CEO of Linden Lab, the company
behind Second Life, explained that "to date, we have had very little to no
activity of concern and in those cases we have been very proactive as a
company about bringing these things to the attention of the authorities. Again,
we view child protection as paramount.... 07
This Part first discusses the failure of mechanisms used by individual sites
to keep children out. It then sketches in bawdy detail the sex play available to
children in virtual worlds, including Second Life (despite Rosedale's rosy
portrayal). Finally, it describes the inadequacy of filters and tort liability to
screen out adult content.
A. The Failureof InternalScreens to Exclude Childrenfrom Adult Spaces
Virtual world creators have responded to the possibility of child
exploitation with a variety of approaches: segmenting players by age;
providing age restrictions on admission; and restricting sexual acts involving a
child-like avatar, known as "age play., 38 Not all virtual worlds use all or even
any of these approaches, but most use one or more. 39 For example, Linden Lab,
the creator of Second Life, responds to the risks to children by using all three
approaches. 40
A number of virtual worlds segment participants into adult-only and childonly spaces. Linden Lab offers a separate world for teens aged thirteen to
seventeen, Teen Second Life.41 The only adults given access are employees of
36. Id.
37. Id.
38. See infranotes 41-52 and accompanying text (discussing the efforts of virtual worlds
like Second Life and The Sims Online to restrict access to minors).
39. See Fairfield,supra note 11, at 1233-39 (discussing the various filtering technologies
employed by virtual world designers). Some virtual worlds screen for illicit content. For
example, Dotsoul provides a PG-rated world that prohibits anything sexual on-world, as does
their There, which minors can access if their parents register them. Dotsoul,
http://www.dotsoul.net (last visited Sept. 29, 2009); There, http://www.there.com (last visited
Sept. 29, 2009). Because this Article addresses the risks to children playing in spaces not
intended for them, it does not consider this method of protection.
40. See infra notes 41-52 and accompanying text (discussing the methods used by Linden
Lab to protect minors in Second Life).
41. In the initial sign-up process for Second Life, a user who enters a birth date that places
her age between thirteen and seventeen automatically receives a new account in Teen Second
Life. Second Life, http://join.secondlife.com (last visited Sept. 29, 2009). A warning then
appears at the bottom of the sign-up screen: "Warning to adults: Teen SecondLife is a service
offered to minors only. If you provide false date-of-birth information in order to access Teen
Second Life, Linden Lab may provide your personal information to any law enforcement
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66 WASH. & LEE L. REV 1127 (2009)
Linden Lab and educators who pass a background check.42 Virtual worlds that
cater to sexual desires also permit "adults only." RedLightCenter.com, for
instance, uses a birth date to determine a player's admission.43
Segmenting players by age would seem sufficient to shield children from
virtual sex ifage restrictions worked. But they do not. Any kid who can do
basic math can easily enter sites that facilitate virtual sex. To sign up for a
Second Life account, a person must enter their birth date. If a person gives an
age under thirteen, he or she is barred from the site. A person who gives an age
between thirteen and seventeen is admitted to Teen SecondLife.44 A birth date
equating to adulthood gets the user into Second Life.45
RedLightCenter.comalso asks for a potential user's birth date to join, but
adds the additional requirement that users "certify" that they are at least
eighteen years old to enter the site.46 By contrast, other virtual worlds
specializing in virtual sex, like Sociolotron, a virtual world that permits players
to engage in medieval warfare interspersed with virtual sex, requires not only
47
certification that a user is twenty-one-years-old or older, but also a credit card.
organization or private litigant investigating your activities." Id. Teen SecondLife is largely a
ghost town. Adults are excluded by policy and few teens care to spend time here. Personal
communication from Joshua Fairfield, June 1, 2009.
42. See Online Virtual Worlds, supranote 5 (testimony of Philip Rosedale, founder and
CEO of Linden Lab) (describing the internal security features used to keep adults out of Teen
Second Life).
44. SecondLife, http://secondlife.com (last visited Sept. 29, 2009). Fraud with respect to
age may subject the player to criminal liability. Orin S. Kerr, CriminalLawin Virtual Worlds,
2008 U. CHi. LEGAL F. 415, 422-23 (2008) (discussing the possibility that violating the
contractual terms of the website could violate criminal law).
Although this Article is concerned with children sneaking into adult spaces, unverified age
requirements work no better to bar adults from sneaking into children's spaces. In November
2008, ajury convicted Lori Drew of three misdemeanors under the Computer Fraud and Abuse
Act (CFAA) (codified at 18 U.S.C. 1030) for violating MySpace's terms of service. Jennifer
Steinhauer, Woman FoundGuilty in Web FraudTied to Suicide, N.Y. TIMES, Nov. 27,2008, at
A25. Drew, an adult woman, set up an account purporting to be a thirteen-year-old
boy. Id. She used the account to interact with a thirteen-year-old girl, who eventually
committed suicide. Id. Drew was charged with misdemeanor and felony violations of the
CFAA and conspiracy, but was convicted only of the misdemeanor violations. Id. In July 2009,
a federal judge "tentatively threw out" Drew's conviction. Tom McCarthy & Scott Michels,
Lori Drew MySpace Suicide Hoax Conviction Thrown Out, ABcNEWS, July 2, 2009,
http://abcnews.go.com/TheLaw/Story?id=7977226&page=l (last visited Sept. 29,2009) (on file
with the Washington and Lee Law Review).
45. Second Life, http://secondlife.com (last visited Sept. 29, 2009).
47. Sociolotron, http://sociolotron.amerabyte.com/website2/intro.htm (last visited Sept.
29, 2009).
10

1137
Because the credit card is charged, a child intent on fighting (virtually) in the
nude cannot simply supply a parent's or other person's credit card number
without risking discovery.
Although Second Life caters to adults, it forbids age play.48 Specifically,
Second Life forbids residents from: (1) engaging in lewd or sexual acts in
which any avatar appears to represent a minor; (2) promoting such behavior,
such as by placing child-like avatars in proximity to "sex beds" or other
sexualized graphics, objects, or scripts, or by placing in children's spaces
sexualized "pose balls" that allow Second Life characters to have sex; or
(3) graphically depicting children in a sexual or lewd manner.49 The sanction
for age play is exclusion from the world, with the attendant loss of any
investment the player may have made in Second Life.50 Second Life also
forbids nudity in public spaces,5' although nudity is not readily policed. Two
Washington and Lee students, Anna-Katherine Moody and Richard Bruno,
created Second Life avatars, Moisha and Luc, who cavorted in the nude on a
couch in a public place without disturbance. 52
In October 2008, a crime correspondent for British TV's Five News, Jason
Farrell, tested how well Second Life's policy forbidding age play works in
practice. 53 Presenting as a virtual version of himself, a middle-aged man,
Farrell visited a playground designed, presumably, to attract children. No one
approached him. He then returned to the area in the guise of a ten-year old girl
and was inundated with messages from other users. One adult male avatar told
Farrell's avatar that he had a family of girls and offered to take Farrell's avatar
somewhere. He brought her to his private virtual home and, like a child
molester in the real world, he put cartoons on the virtual TV. Later, the male
avatar took Farrell's avatar into the bedroom, where another adult female avatar
48. See Robin Linden, Accusations Regarding Child Pornography in Second Life,
http://blogs.secondlife.com/community/features/blog/2007/05/1 0/accusations-regarding-childpornography-in-second-life (last visited Sept. 29, 2009) (reporting that SecondLife has a "zero
tolerance policy" for age play and promptly removes avatars who engage in such behavior from
its site) (on file with the Washington and Lee Law Review).
49. Second Life, Community Standards, http://secondlife.com/corporate/cs.php (last
visited Sept. 29, 2009) (on file with the Washington and Lee Law Review).
50. Kend Linden, ClarificationofPolicyDisallowing "Ageplay", http://blog.secondlife.
com/2007/11/13/clarification-of-policy-disallowing-ageplay/ (last visited Sept. 29, 2009) (on
file with the Washington and Lee Law Review).
51. Second Life, Community Standards, http://secondlife.com/corporate/cs.php (last
visited Sept. 29, 2009) (on file with the Washington and Lee Law Review).
52. May 29, 2009.
53. Return to the DarkSide of Second Life, FivE NEWS, Oct. 6, 2008, http://news.five.tv/
news.php?news=176 (last visited Sept. 29, 2009) (on file with the Washington and Lee Law
Review).
11
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66 WASH. &LEE L. REV. 1127 (2009)
was present. Pose balls hovered above the bed. The male avatar asked
Farrell's avatar to undress. The man said that he liked young girls in real life,
but when Farrell
pressed him further, the man ejected Farrell's avatar from his
54
home.
virtual
The inadequacy of internal screens to keep children out of adult spaces
brings us to the central question, explored in the next subpart: What precisely
occurs in virtual worlds from which children may need protection?
B. Virtual Sex-Who's Diddling Whom?
To the extent that children play in virtual worlds like Second Life, or enter
spaces dedicated to virtual sex, like RedLightCenter.com,they may be engaging
in virtual sex.55 As the Five News expos6 illustrated, it is possible to stumble
on sexually-charged interactions in Second Life in unexpected locations or in
places a short teleport away. A 2005 study found that one
in three youth
56
internet users saw sexual material they did not want to see.
Whole sections of Second Life are devoted to sex play. Many users
become highly invested in their avatars, purchasing genitalia, sex toys, and
skimpy outfits with money that has real-world exchange rates. Avatars can
get their "freak on" in places like Club Sin, Nude Beach, and Nera Naughty,58
sometimes designated "mature areas." 5 9 One blogger reports that "the sex clubs
54. Id.
55. Children may also witness a number of kinky things. See, e.g., Mohney, supra note
15 (describing a "giant vagina" resembling a "big pink kidney bean" into which a user may
insert his virtual penis). This Article focuses on the impact on children of participating in
graphic, interactive virtual sex acts. It takes no position on whether the state should regulate the
possibility that children will merely see such bizarre sexual depictions.
56.
See JANIS WoLAK ET AL., NATIONAL CENTER FOR MISSING & EXPLOITED CHILDREN,
ONLINE VICTIMIZATION OF YOUTH:

FIvE YEARS LATER 1 (2006), available at
http://www.unh.edu/ccrc/pdf/CV138.pdf (noting the rise in online exposure of youth to
unwanted sexual material). Findings from earlier surveys indicate that "large numbers of youth
who used the Internet were encountering sexual solicitations they did not want... [and] sexual
material they did not seek.... " Id.at xi.
57. Mohney, supra note 15.
58. See Rawstorne, supra note 12 (recounting Rawstome's visit to clubs that promote
orgies, simulated rape, and pedophilia).
59. See Tateru Nino, Linden Lab Changes Coursefor Second Life's Mature Content,
Mar. 12,2009, http://www.massively.com/2009/03/12/linden-lab-changes-course-for-secondlifes-mature-content/ (last visited Sept. 29, 2009) (stating that there are two sections of Second
Life, one for G-rated content and one for "everything else," both of which are accessible to all
avatars) (on file with the Washington and Lee Law Review).
12

1139
were the most consistently populated area" he entered in SecondLife.6 While

the avatars engaging in sexual acts retain a "cartoonish" character, they are
increasingly becoming realistic and lifelike. 6'
The menu of sexual activities available to players would test even Dr.
Ruth's knowledge base. A single piece of furniture available for sale in Second
Life for $45, the SexGen bed, "enables more than 150 sex animations., 62 Any
child smart enough to slip into a virtual world with a fake birth date can enter
these spaces.
Children are not always innocent bystanders when it comes to virtual sex.
In The Sims Online (TSO), a now defunct virtual world, 63 minors ran a cyberprostitution ring for money. 64 According to a news blog by a University of
Michigan professor, an under-age user, Evangeline, acted as a cyber-madam for
several cyber-brothels in TSO. 65 Evangeline interviewed girls virtually to see
how they would behave with cyber-johns, then prostituted the girls out to male
users for roughly the real-world equivalent of $50 an encounter. TSO
ultimately bounced the whistle-blowing professor and shut down his news
blog, 66 raising questions as to whether informal restraints will suffice to
regulate virtual sex with minors.

60. Mohney, supra note 15.
61. See Castronova, supranote 24, at 1089 ("[Virtual Reality] makes visual and auditory
sensations better, both in the sense of realism and fantasy."); see also Peter Plantec, The
Promise of Digital Doubles, Nov. 13, 2008, http://www.studiodaily.com/main/
work/10208.html (last visited Sept. 29, 2009) (reporting that a computer-generated image
wrapped onto an anatomically correct female form, Image Metric's Emily Project, was so
realistic that one could be fooled into believing Emily was real) (on file with the Washington
and Lee Law Review).
62. Richards, supra note 14; see also Destiny Welles, The Ins and Outs of a Second Sex
Life, REGISTER, Jan. 9, 2007, http://www.theregister.co.uk/2007/01/09/good-sex
insecond life/ (last visited Sept. 29,2009) ("You can buy [pose balls] at many ofthe shops; in
fact, you can buy whole kits, like a bed with an entire menu of animations.") (on file with the
63. Electronic Arts, the developer of TSO, rebranded TSO as "EA Land" early in 2008,
with no success. It closed shortly thereafter. Daniel Terdiman, 'EA Land' ClosingJust Weeks
After Debut, CNET NEWS, Apr. 29, 2008, http://news.cnet.com/8301-17938_105-99317571.html (last visited Sept. 29, 2009) (on file with the Washington and Lee Law Review).
64. Dan Hunter, Evangeline: Interview with a Child Cyber-Prostitute in TSO,
ALPHAviLLE HERALD,
Dec. 8, 2003, http://www.secondlifeherald.comslhi/2003/12/
evangeline inte.html (last visited Sept. 29, 2009) (on file with the Washington and Lee Law
Review). While the brothels existed only online, cyber-johns paid in virtual world currency. Id.
Currency in virtual worlds is often converted into real-world currency by sale on eBay. Id.
Evangeline did not try to convert her virtual gains, electing instead to use it to purchase things
in TSO. Id.
65.
Id.
66.
Dan Hunter, Censorship in TSO, http://terranova.blogs.com/terranova/2003/12/
13

1140
66 WASH. &LEE L. REV. 1127 (2009)
Some virtual sex may lead to off-line conduct. Across all internet
contexts, not just virtual worlds, one in seven children report being solicited for
sex online.6 7 Some worlds specializing in virtual sex assist participants to meet
in the real world. RedLightCenter.com,
for instance, allows players to state a
68
preference to "meet in the real world.,
Even without the explicit invitation to real-world hook-ups, the boundary
between the real world and the virtual world is fading and likely to disappear
soon. Bloomfield and Duranske believe that in the near term, players will be
able to feel what their avatars experience. 69 Other technology now
70 allows
players to project a holographic image of an avatar in the real world. As Part
IH explains, the spill-over of the virtual world into the real world may be
significant for whether a crime occurs, either as a form of physical touching or
as constructive presence. This Article, however, also posits the harder case:
virtual sex with a child that stays wholly online.
Because virtual worlds permit players to engage in fantasy, it is difficult to
know who is playing sex games with whom. As Figure 1 shows, both children
and adults may play sex games (top axis showing true identity). Players can
take on avatars that may or may not be realistic representations of themselves.
Thus, as Figure 1 shows, both may present as adults or as children (vertical axis
showing virtual identity). 71 Finally, both may play with another party, who may
be either an adult or a child (bottom axis showing partner). This combination
of possibilities yields eight distinct outcomes, as shown.
censorshipin t.html (last visited Sept. 29, 2009) (on file with the Washington and Lee Law
Review).
67. WOLAKETAL.,supra note 56.
68. RedLightCenter.com,http://www.redlightcenter.com (last visited Sept. 29, 2009). By
contrast, SecondLife discourages players from talking about the player's "first" or real life and
from going "off world" or meeting in real life. Online Safety Tips for Teens,
http://teen.secondlife.com/parents/safety (last visited Sept. 29, 2009) ("Don't ever tell anyone
online your real full name, your parents' names, your home address, your school name or
location, your phone/mobile numbers, social security & credit card numbers, and anything that
shows what you look like such as a photo, video, or webcam link.") (on file with the
69. See Bloomfield & Duranske, supranote 11, at 1182 ("Integration can go both ways,
of course, allowing the synthesized physical experience of an avatar to be transmitted through a
force-feedback device to create a sensation in the real world.").
70. See id. at 1198 ("One can even surmise that the existence of holographic projection
technology will allow the father's avatar to be present in the real world, projected on to the
couch next to his children. In fact, although in rudimentary form and priced well above
consumer items, this technology does already exist.").
71. When a child-like avatar engages in sex, it is age play and banned on some worlds,
like Second Life. Linden, supra note 48.
14
1141
As Parts HI and IV will suggest, these scenarios may have very different
implications for the legality of the virtual sex and whether it will receive First
Amendment protection.
Child
hj
Adult
Child
Adult
SpIP
Child
Scenado I
Scenario 3
Scenario 5
Scenario ?
Unclear
Crime?
Crime?
No Crime
if not
obscene
Adult
,*JV
Scenario 2
Scenario 4
Scenario 6
Scenario 8
Unclear
Crime?
Crime?
No Crime
If not
obscene
Child
Adult
Child
Adult
Figure 1. Possible Participants in Virtual Sex

In Scenarios 1 through 6, an actual child participates in virtual sex,
implicating the State's interest in preventing child sexual exploitation, as Part
III will discuss. In Scenario 7, age play occurs with one adult masquerading as
a virtual child. In Scenario 8, both adult players appear as adults. As kinky
and bizarre as both Scenarios 7 and 8 are, nonobscene sex play between two
actual adults is likely beyond the reach of the government, as Part IV explains.
Virtual sex goes well beyond a stream of typed words describing sex acts,
known as emoting.72 With emoting, a player might type, "I'm now penetrating
you," but no visual depiction ever occurs of one avatar penetrating another.73
Not so with virtual sex, which combines graphic depictions of the avatar's acts
72. See World of Warcraft Online, http://www.worldofwconline.com/content/guidesemotes.php (last visited Sept. 29, 2009) ("Emotes are commands that you type in which make
your character perform certain actions depending on the emote that you typed. Emotes can be
done individually or with another character if you type the emote while another player is
selected on your screen.") (on file with the Washington and Lee Law Review).
73. Emotes can direct avatars to take actions that include elements of sex acts like laying
down, but not full-blown sex acts, like sodomy. World of Warcrafi Online, supra note 72. The
majority of emotes direct avatars to do mundane things, like burping or applauding. Id.
15

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66 WASH. &LEE L. REV 1127 (2009)
with the opportunity to guide the avatar through explicit sexual escapades. Far
from being a passive recipient of pornographic ideas and words, the players in
virtual sex games guide the nature of the exchange, which unfolds graphically
on their screens as they play. A player's avatar can seduce her partner,
undressing provocatively or pole dancing if she prefers.74 Or she can get down
to business without the foreplay, selecting a sexual position which then
continuously loops until the avatar is directed to do something further. Players
can manipulate avatars through multiple sexual exchanges, unlimited by
physical stamina or exhaustion as in the real world. By touching an avatar,
players can enhance the avatar's arousal level and even cause it to orgasm.75
The interactivity of virtual sex cannot be overstated. One player chooses a
desired sex act, which the other player must then agree to by placing her pose
ball next to the first's. 76 Players choose how to respond to the other player's
actions-by clicking out of the game, by stopping the act, by agreeing to
proposed acts or countering with another preferred sex act, and by choosing to
engage in further sex acts beyond the first. 7 Players can choose whether to
make their avatar climax or to make the other avatar climax.78 All the while,
the other player immediately responds to these choices with her own choices.
Laid over all of this is communication between the players by voice or Instant
Messenger (IM). This back and forth requires the two players to make
numerous choices, which visually unfold before them.
74. See Virtual Sex in Second Life, Early Show, http://www.youtube.com/

watch?v=ruMi3MAGkvc (last visited Sept. 29, 2009) (presenting video clips of different
cyberbrothels on SecondLife) (on file with the Washington and Lee Law Review).
75. See Ruberg, supra note 17 ("The [avatars'] nipples, clits, penises, etc. can be
'touched' just by clicking on them. Since the parts monitor the avatar's 'arousal,' avatars can
even orgasm in this way.").
76. See Caliandris Pendragon, Animations for Beginners, SECOND LIFE INSIDER,
http://www.secondlifeinsider.con/2006/1 0/25/animations-for-beginners (last visited Sept. 29,
2009) [hereinafter Pendragon, Animations] (explaining that for sex pose balls to work, they
must synchronize, meaning that when one player selects a pose ball the other must select a
corresponding pose ball) (on file with the Washington and Lee Law Review).
None of this requires resources or Linden Dollars, since many sex clubs have "beds and
pose balls all over the place." Welles, supra note 62.
77. See Pendragon, Animations, supra note 76 ("Most of the animation overriders allow
you to turn them off.... You may also find yourself stuck in an animation you can't get out of,
from any source.").
78. See Ruberg, supra note 17 (describing the ways an avatar can "stimulate" his or her
sex partner).
16

1143
C. The Inadequacy of ExternalFilters

It almost goes without saying that there is little that parents can do about
this. 79 The United States Supreme Court repeatedly has struck down on First
Amendment grounds Congressional attempts to limit provocative materials
online.80 Filters are clunky and prone to over-blocking or under-blocking sites
so that inappropriate sites may be allowed through while relatively
unobjectionable sites are blocked. 81 One free filter, We-Blocker, blocked
access to such sites as RedLightCenter.com, Sociolotron, and Facebook, 2 but
permitted access to SecondLife, where children may have sexual encounters, as
Five News demonstrated. 3
The prospect of tort liability is unlikely to motivate site creators to police
children in adult spaces. In 2007, a man sued Sexsearch.corn, an online service
permitting users to meet and engage in sexual encounters, 84 after he was
Of course, parents can restrict computers to public spaces in the home.
See Catherine J. Ross, ConstitutionalObstaclesto Regulating Violence in the Media,
in HANDBOOK OF CHILDREN, CULTURE, AND VIOLENCE 291,296-97 (Nancy E. Dowd, Dorothy
G. Singer, Robin Fretwell Wilson eds., 2006) [hereinafter CHILDREN, CULTURE, AND VIOLENCE]
(reviewing Congress's failed attempts to limit online pornography)
81. An internet filter is hardware or software that prevents access to certain areas of the
Internet. Internet Filters Frequently Asked Questions, Internet-filters.net, http://www.intemetfilters.net/info.html (last visited Sept. 29, 2009) (on file with the Washington and Lee Law
Review). Different filters function differently. Some block URLs that appear on a
predetermined list, while others scan incoming data and block undesirable keywords or file
types. Id. With some filters, parents can create the list of keywords or sites to be blocked. Id.
In addition, parentally-controlled children's browsers enable parents to create a list of known
"good" sites that can be accessed. Id. While filters can be useful to block unwanted materials, a
number of limitations reduce their effectiveness. Id. Not everyone utilizes filters. They can be
expensive and make browsing more burdensome for users, including parents. Id.
82. When a blocked web address was entered, an "Error 404: File Not Found" message
appeared in the browser.
83. See supra note 64 and accompanying text (discussing Five News expose). Some
commentators urge the commercial development of internet services that match "the real,
geographical world's decency standards." Cheryl B. Preston, Zoning the Internet: A New
Approach to ProtectingChildren Online, 2007 BYU L. REV. 1417, 1426 (2007). Similar to
blocking certain cable TV stations, this approach seeks to enable parents to shield children from
objectionable content, while respecting the First Amendment rights of those who want to access
the entire Internet. If prior experience is any guide, market-based solutions likely will require
Congressional pressure. Dale Kunkel & Lara Zwarun, How Real is the Problem of TV
Violence? Research and PolicyPerspectives, in CHILDREN, CULTURE, AND VIOLENCE, supra
note 80, at 203, 212-13. Even if this approach gets traction, it has limited utility here. A
"decency filter" shares the general problem of filters-it may block inherently obscene sites,
such as RedLightCenter.com, but leave nonobscene sites like Second Life within reach.
84. Sexsearch.com claims to have 15 million members. Sexsearch.com, http://www.sex
search.com/upgrade/p:20261341/svl:memberhome_50.htm (last visited Sept. 29,2009) (on file
with the Washington and Lee Law Review). While the initial sign-up is free, Sexsearch.com
79.
80.
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66 WASH. &LEE L. REV 1127 (2009)
sentenced to fifteen years in prison for engaging in sexual relations with a

"woman" he met on the site who turned out to be fourteen years old. 85 The girl
accessed the site by providing a birth date showing she was eighteen.8 6 The
man sued SexSearch.com for breach of contract, negligent misrepresentation,
and negligent infliction of emotional distress for allowing a minor to join.87
The court dismissed the suit on summary judgment, concluding that the
Communications Decency Act 88 (CDA) provided immunity to
SexSearch.com. 89 The CDA states that "no provider or user of an interactive
computer service shall be treated as the publisher or speaker of any information
provided by another information content provider," 90 and that "no cause of
action may be brought and no liability may be imposed under any State or local
law that is inconsistent with this section." 91
In 2006, a mother and daughter sued MySpace for negligence and gross
negligence, claiming that MySpace should have adopted procedures to verify
users' ages. 92 The claim originated when Julie Doe, thirteen at the time, lied
about her age in her MySpace profile. 93 She later began to interact with a
nineteen-year-old man, who sexually assaulted her when they met in the real
world.94 A federal district court in Texas dismissed the Does' claims with
prejudice, concluding that the CDA and Texas common law barred them. 95
The Court of Appeals agreed, concluding that the claims merely sought to hold
offers two membership upgrade options. Silver Membership costs $19.98 for three months and
allows the user to view and contact all members, reply to all emails, and engage in instant
message chats. Gold Membership costs $12.50 a month for 12 months and gives the user top
listings in all searches, features the user in all search results, and gives users access to hardcore
pornography and member webcams. Id.
85. See Doe v. Sexsearch.com, 502 F. Supp. 2d 719, 722 (N.D. Ohio 2007) (granting
defendant's motion to dismiss claim).
86. Id.
87. Id. at 723.
88. 47 U.S.C. 230 (2000).
89. Sexsearch.com, 502 F. Supp. 2d at 728.
90. 47 U.S.C. 230(c)(1) (2000).
91. Id. 230(e)(3).
92. See Doe v. MySpace, 528 F.3d 413, 416-17 (5th Cir. 2008) (describing the
procedural history of the case).
93. Id. at 416. Other girls have been fatally harmed when they met their online partners in
the real world. See GirlKilled by "Lover" She Met on Internet,CHINA DAILY, June 24, 2009,
http://www.chinadaily.com.cn/china/2009-06/24/content_8317265_2.htm (last visited Sept. 29,
2009) (describing a Chinese man who stabbed his "Internet lover" to death in a cake shop after
she broke off their relationship) (on file with the Washington and Lee Law Review).
94. MySpace, 528 F.3d at 417.
95. Id.
18

1145
MySpace liable for publishing "online third-party-generated content. 9 6 The

court refused to address the Does' claim that MySpace partially created the
content by providing a template for user profiles because the Does raised the
question for the first time on appeal. 97 Negligence actions have been barred in
other suits as well. 98
The failure of private tort suits and parental controls to police the sexual
exploitation of children by adults places a premium on the application of
criminal law.
IlI. Is VirtualSex with a Child a Crime?
If children play in spaces in which virtual sex is occurring and some take
part in these virtual acts, are adults likely to get in trouble for this? 99 Assuming
that the First Amendment does not insulate the adults from sanction, as Part IV
will explore, this Part suggests that a number of existing state law crimes would
encompass the mere act of virtual sex with a child. Subpart A examines a
number of state law crimes including crimes against children-such as indecent
liberties with a minor-as well as crimes that may be committed against any
person, such as using indecent language. Subpart B describes how the
application of existing statutes to virtual sex with a child pushes those
definitions in new and radical ways, but ultimately concludes that virtual sex
with a child implicates the child protection rationales that led society to place
sexual conduct with children off-limits.
96. Id.at 420.

97. Id.at 422. While the CDA protection is very strong, state Attorneys General have
forced settlements from MySpace and Facebook that require them to undertake substantial
policing duties to stop predators. Anne Barnard, MySpace Agrees to Lead Fight to Stop Sex
Predators,N.Y. TIMES, Jan. 15, 2008, at B3.
98. In Zeran v. America Online, Inc., 129 F.3d 327, 335 (4th Cir. 1997) the Fourth
Circuit held that the CDA barred a negligence action against a commercial interactive computer
service provider that was sued for delays in removing defamatory messages posted by a third
party. The court stated that Section 230 of the CDA "precludes courts from entertaining claims
that would place a computer service provider in a publisher's role. Thus, lawsuits seeking to
hold a service provider liable for its exercise of a publisher's traditional editorial functionssuch as deciding whether to publish, withdraw, postpone or alter content-are barred." Id at
330.
99. One implication of the application of state law crimes here is that children may be
prosecuted for their own behavior. See infra note 197 (discussing the prosecutions of children
for "sexting"); Part III.A.2 (describing certain crimes that may be committed by an individual of
any age, like indecent acts with another); cf infra notes 151-77 and accompanying text
(discussing the age requirements for statutory rape and other crimes against children).
19
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66 WASH. & LEE L. REV. 1127 (2009)

A. Ballooning Definitionsof Child Sexual Abuse
As this subpart demonstrates, understandings and definitions of child

sexual abuse have undergone a remarkable change in the last several decades.
Modem definitions of child sexual abuse already encompass conduct that does
not involve actual physical touching, such as exhibitionism and other
noncontact offenses.' Modem definitions jettison physical proximity between
the offender and victim to encompass conduct over the phone and other
electronic media.' 0' In many states, modem definitions do not require
knowledge of the victim's status as a child and provide no defense based on the
child's willingness or consent to the sexual activity.102
1. Noncontact Offenses
Widely accepted definitions of child sexual abuse encompass noncontact
03
abuse, like exhibitionism, sharing pornography with a child, and voyeurism.
The expansion of child sexual abuse to include noncontact offenses rests on
two discrete rationales. First, there is the predictive judgment that a person
generally does not show sexually explicit materials or, for that matter, his
genitals to a child and have it end there.1 4 In fact, many noncontact offenses
"groom" the child to accept physical touching, lowering the child's inhibitions
to later sexual contact. 10 5 In this way, noncontact offenses often act as a
precursor to actual physical intercourse or other sexual contact.
100. See infra Part III.A. 1 (discussing the expanding definitions of child sexual abuse).
101. See infra Part III.A.2 (discussing criminal prohibitions against indecent exposure).
102. See infra Part III.A.3 (discussing prohibitions against statutory rape).
103. See, e.g., 43 C.J.S. Infants 121 ("A statute may provide punishment for... being
involved in various sexual activities with, or in the presence of, infants.... Indecent exposure
to children may constitute molesting within the statute, and a physical act of touching the child
is not required."); Robin Fretwell Wilson, The CradleofAbuse: Evaluatingthe DangerPosed
by a Sexually PredatoryParentto the Victim's Siblings, 51 EMORY L.J. 241, 256 n.56 (2002)
(noting that most researchers now agree that the definition of incest includes noncontact
interactions between the parent and child); ROBERT D. GOLDSTEIN, CHILD ABUSE AND NEGLECT:
CASES AND MATERIALS 178 (1999) (noting that many jurisdictions retain the power to prosecute
noncontact acts by means of such provisions as "taking indecent liberties with a minor").
104. Diana E.H. Russell & Natalie J. Purcell, Exposure to Pornographyas a Cause of
ChildSexual Victimization, in CHILDREN, CULTURE, AND VIOLENCE, supra note 80, at 59,78-79;
Robin Fretwell Wilson, Undeserved Trust: Reflections on the American Law Institute's
Treatment ofDe Facto Parents, in RECONCEWING THE FAMILY: CRmQuE ON THE AMERICAN
LAW INSTrrUTE'S PRINCIPLES OF THE LAW OF FAMILY DISSOLUTnON 90,95 (Robin Fretwell Wilson
ed., 2006).
105. Russell & Purcell, supra note 104, at 78.
20

1147
Second, noncontact offenses directly harm the child.l16 They corrupt the
minor's innocence, change her own mental views of sex and sexual
relationships, and often change the range of sexual activities she is likely to
engage in, even if nonabusive.10 7 A child's own sexual identity may also be
affected. As one recent report noted, "exposure to sexual material could
negatively impact [a child's] sexual development and [cause] some people [to]
develop compulsions about looking at sexual material."108 Noncontact sexual
encounters also often leave a child disillusioned and distressed. 9
Consequently, it is no surprise that many sexual abuse offenses against a
child require no physical touching. Jurisdictions reach "non-touching acts
(along with touching acts) by means of such provisions as 'taking indecent
liberties with a minor,' 'corrupting the morals of a minor,' 'molesting or
annoying' a minor, and the like.10 These laws cover a wide range of conduct.
Indecent liberties, for example, encompass any act that the "common sense of
society would regard as indecent and improper."' l Examples include taking
lewd photographs of a child, "voyeurism or being a peeping tom," and sharing
pornography with a child. 112 Sexually charged exchanges between an adult and
106. Sexual abuse involving touching also causes harm. GOLDSTEIN, supra note 103, at
144. Other harms caused by child sexual abuse include the following: (a) "depriv[ing] minors
of needed dependence on trusted adults" and "undermin[ing] the family's role in the protection
and education of the child"; (b) violating the sense of self and autonomy of children, who lack
"sufficient cognitive and emotional capacity to understand the nature of a sexual act or to
withstand the influence of older persons, and thus cannot consent to sex"; and (c) "prematurely
exciting a child's sexuality before he or she can tolerate, control, or integrate it," harming the
child "because of its overwhelming nature." Id. Further, child sexual abuse, when combined
with secrecy and threats, "lead[ing] to substantial inner splits, trauma and dissociation" can
cause "violent bodily injury, constitut[ing] an assault and battery, and inflict[ing] trauma by
virtue of the threat of physical safety, integrity and well-being." Id.
107. See id. at 144-45 (listing other harms including breach of trust, violation of personal
autonomy, and family disruption).
108. WOLAK ET AL., supra note 56, at 60.
109. See, e.g., Roland Summit & JoAnn Kryso, Sexual Abuse of Children: A Clinical
Spectrum, in
SEX AND CHILDREN: NEW FINDINGS, NEW PERSPECTIVES 111,
115 (Larry L.
Constantine & Floyd Mansfield Martinson eds., 1987) (reporting that girls who discovered that
their fathers watched them undress through slightly open doors or mirrors usually experienced
"a strong sense of disillusionment and distress").
110.
GOLDSTEIN,
supra note 103, at 178.
111. State v. McClees, 424 S.E.2d 687, 690 (N.C. Ct. App. 1993); see also Wormley v.
State, 565 S.E.2d 530, 531 (Ga. App. Ct. 2002) (defining an immoral or indecent act as an act
that is "generally viewed as morally indelicate or improper or offensive, ... [and] which
offend[s] against the public's sense of propriety"); 43 C.J.S. Infants 113 (2008) ("The
indecent liberties referred to by the statute are such as the common sense of society would
regard as indecent and improper.").
112. See U.S. v. Obren, 28 M.J. 172, 174-75 (A.F. Ct. Crim. App. 1989) (upholding the
21
1148
66 WASH. &LEE L. REV. 1127 (2009)
a child also count. Thus, asking vulgar and sexually explicit questions of a
child while driving in a car next to her is indecent behavior, despite the lack of
touching.11 3 A person who masturbates in front of a child takes an indecent
liberty with her, even if the child is sixty feet away," 4 as does a person who
masturbates behind a glass window in his home in sight of children thirty-five
feet away." 5 The defining characteristic of the behavior under many statutes is
that one intends to 1arouse
one's sexual passions or those of the child, not that a
16
touching occurred.
Some child molestation statutes also dispense with touching as an
element. In Georgia, for example, physical contact between the victim and the
perpetrator is not an element of the offense."17 Thus, a couple could be
convicted of child molestation for having sexual intercourse in the presence
of five children." 8 In New Jersey, sexual assault requires the touching of an
conviction of a man for taking indecent liberties with a minor after he shared a Playboy
magazine and other materials with four boys since the defendant's actions demonstrated his
intent to "arouse his sexual passions and those of the children").
113. State v. Smith, 27 So.2d 359, 364 (La. 1946) (overturning the conviction of a man,
based on reasonable doubt as to the perpetrator's identity, for taking indecent liberties with a
child where he was alleged to have driven beside a child in a car and asked vulgar questions of
her).
114. See State v. Strickland, 335 S.E.2d 74, 75 (N.C. Ct. App. 1985) (upholding the
conviction of a man for taking an indecent liberty with a child under N.C. GEN. STAT. 14202.1 (2008) for masturbating in front of children approximately 60 feet away, and refusing "to
hold that a defendant must be within a certain distance of or in close proximity to the child").
115. See State v. Nesbitt, 515 S.E.2d 503, 507 (N.C. Ct. App. 1999) (upholding the
conviction of a man for taking indecent liberties with a minor under N.C. GEN. STAT. 14-202.1
(2008) when he masturbated behind a glass window in front of children, despite his claim that
he had no way of knowing that his conduct would place him "with" a child standing thirty-five
feet away in his yard). As the court observed, "it is clear what conduct the statute seeks to
prohibit and thus gives sufficient guidance to our citizens, our police, our prosecutors, our
judges, and our juries." Id.
116. See 43 C.J.S. Infants 113 ("Under particular statutes, the constituent elements ofthe
offense include the taking of immoral, improper, or indecent liberties, with an infant under a
specified age, with the intent of arousing, appealing to, or gratifying, the lust, passions, or
sexual desires of the infant or the accused."); see also United States v. Cook, 61 M.J. 757, 759
(A.F. Ct. Crim. App. 2005) (noting that the crime of attempted indecent liberties with a minor
requires that the accused act with the intent to arouse the sexual desires of the accused, the
victim, or both).
117. See GA. CODE ANN. 16-6-4 (West 2009) ("A person commits the offense of child
molestation when such person does any immoral or indecent act to or in the presence of... [a
minor].").
118. See Grimsley v. State, 505 S.E.2d 522, 527 (Ga. Ct. App. 1998) ("It is sufficient if a
person utilizes or capitalizes on a child's mere presence as a witness to the person's intentional
immoral or indecent act....").
22

SEX PLAYIN VIRTUAL WORLDS
1149
intimate part.... [T]he actor may touch himself or herself, the actor may
touch the victim, or the victim may touch the actor. Each such intentional
touching must be for at least one of four purposes: either degrading or
humiliating the victim, or sexually arousing or sexually gratifying the
defendant-actor. Finally, if the touching is by the actor of himself or
herself, the sexual touching
must be in view of the victim whom the actor
9
knows to be present.' 1
Thus, an adult's masturbation in front of eight- and ten-year-old children from
assault even though the
seventy-five feet away satisfied the elements of12sexual
0
victim.
the
touch
physically
not
did
defendant
Like these examples, sex play in virtual worlds exposes the childparticipant to sexual materials and sexual exchanges. The fact that the virtual
sex act (absent an augmented reality device) 121 does not involve a touching does
not negate the impact such activity can have on a child's sexual identity and
sexual practices later in life-just as when a child sees an adult masturbating,
she is not being touched or directly stimulated sexually but is being exposed to
a sexual experience. In both instances, a child is engaging in a sexual
experience that may warp her own understanding or perception of sex. 122 A
growing body of empirical research shows that players experience these
exchanges as real. 123 Moreover, in both instances, the adult presumably
119. State v. Zeidell, 713 A.2d 401,407 (N.J. 1998).
120. Id.at410.
121. The use by the child of an augmented reality device, like the vest described by
Bloomfield and Duranske, makes this analysis even easier. It would satisfy the more rigorous
requirement under some statutes of physical presence or contact with the child. See GA. CODE
ANN. 16-6-4(a) (West 2009) ("A person commits the offense of child molestation when he or
she does any immoral or indecent act to or inthe presence of or with any child under the age of
sixteen years with the intent to arouse or satisfy the sexual desires of either the child or the
person."); Vines v. State, 499 S.E.2d 630, 631-32 (Ga. 1998) (concluding that talking over the
phone did not constitute physical presence). In the real world, the penetration ofa child with an
object, as opposed to directly with one's genitals or fingers, counts as a touching even though it
is moderated by an inanimate object. See, e.g., R.I. GEN. LAWS 11-37-1(8) (2009) ("'Sexual
penetration' means sexual intercourse, cunnilingus, fellatio, and anal intercourse, or any other
intrusion, however slight, by any part of a person's body or by any object into the genital or anal
openings of another person's body .... "). To the extent that the augmented reality device
stimulates an "intimate part" of the child's body, the child would be sexually stimulated in the
real world-an outcome that criminal prohibitions clearly seek to prevent. Such devices
dispense with the need to decide how noncontact offenses should be treated. See State v.
Zeidell, 713 A.2d 401,407 (N.J. 1998) (discussing touching of an intimate part); Cf Gibbons,
supra note 24, at 907 ("If an avatar hits another and the individual behind the assaulted avatar
'feels' the effect through a mechanical device, then that blow should be treated as if the
individual had struck the other individual in the real world.").
122. See GOLDSTEIN, supranote 103, at 144 (listing the detrimental impacts of child sexual
abuse).
123. See Yee, supranote 27, at 104 ("While avatars are usually construed as something of
23

1150
66 WASH. &LEE L. REV. 1127 (2009)
engages in virtual sex because it sexually excites the adult, the other player (the
child), or both.
2. Proximity to the Child
Just as some sexual crimes against children do not require physical
touching, some do not require presence either. For instance, under the Manual
for Courts-Martial, indecent acts with another requires neither physical
touching nor presence. 24 In United States v. Miller,125 the defendant sent
pictures of his exposed genitals by web camera to a detective whom he believed
to be a fourteen-year-old girl, and subsequently was convicted of attempting to
take indecent liberties with a child. 126 The defendant successfully rebuffed that
charge, which requires physical presence, but not the lesser included offense of
indecent acts with another.' 27 The court remanded
for consideration of the
28
sufficiency of the evidence for that crime.
The crime of communicating an indecent message also does not require
presence in some jurisdictions. Thus, a man who calls a woman, posing as
another woman in order to induce her to talk about breastfeeding, may be
convicted of communicating129an indecent message, even if he does not act with
the intent to excite himself.
Many state indecent liberty and solicitation statutes also dispense with
physical presence. For instance, an individual who talks dirty with a child over
the phone while masturbating may be convicted of taking indecent liberties
with the minor if the conduct was intended to arouse the adult, the child, or
our own choosing-a one-way process-the fact is that our avatars come to change how we
behave.").
124. See MANUAL FOR COuRTS-MARTAL UNrrED STATES 45 Article 120(k) (2008) (defining
the crime of an indecent act).
125. United States v. Miller, 67 M.J. 87 (A. Ct. Crim. App. 2008).
126. Id. at 91.
127. The government argued for the first time on appeal that Miller should be convicted of
the lesser included offense of indecent acts with another. Id.
128. Id.
129. See United States v. Webb, 39 M.J. 575,578 (N-M. Ct. Crim. App. 1993) (upholding
the conviction of a defendant for using indecent language over the phone in violation of 10
U.S.C. 934, which punishes "conduct of a nature to bring discredit upon the armed forces").
The 1984 Manual for Courts-Martial defines "indecent" language as "that which is grossly
offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar,
filthy, or disgusting nature, or its tendency to incite lustful thought"; it must also "violate
community standards." MANUAL FOR COURTS-MARTIAL UNTED STATES, 1984 (M.C.M.) 89c.
24

1151
both. 130 Conduct over instant messaging systems, with webcams, and in chat
rooms also satisfies the statutory requirements for a crime without involving
actual physical presence.131
A number of sexual crimes against children do require physical
presence. 132 Nonetheless, constructive presence may sometimes substitute for
actual presence in satisfying the elements. In Rabuck v. State,'33 the defendant
was charged with taking indecent liberties with a minor for secretly planting a
video camera in a girl's bedroom. 134 In rejecting the defendant's argument that
actual presence must be shown for a conviction, the court noted that through
modem technology, such as the video camcorder, the defendant placed himself
in the "constructive" presence of the victims. 35 Thus, under many state laws, if
130. See State v. Every, 578 S.E.2d 642, 647 (N.C. Ct. App. 2003) (upholding the
defendant's conviction for taking indecent liberties with a minor for engaging in sexually
explicit phone conversations with a twelve-year-old under a statute requiring that the defendant
willfully took an indecent liberty with the victim "for the purpose of arousing or gratifying
sexual desire").
131. See, e.g., Podracky v. Commonwealth, 662 S.E.2d 81, 88 (Va. Ct. App. 2008)
(upholding the conviction of a defendant accused of soliciting a minor for sex over an internet
instant messaging system under a statute that makes it unlawful for anyone over eighteen to use
a communications system to solicit sexually any person he knows or has reason to believe is a
minor); Brooker v. Commonwealth, 587 S.E.2d 732, 736 (Va. Ct. App. 2003) (upholding the
conviction of a defendant accused of exposing himself to a minor via a webcam under the
indecent liberty and solicitation statutes at issue in Podracky); Hix v. Commonwealth, 619
S.E.2d 80, 88 (Va. 2005) (affirming the conviction of a man for attempted indecent liberties
with a minor and use of a computer to solicit a minor, the same statutes used in Podracky, for
using an internet chat room to arrange a meeting with a person he believed to be a thirteen-yearold girl).
132. See infra notes 151-77 (discussing the crime of statutory rape).
133. See Rabuck v. State, 129 P.3d 861, 868 (Wyo. 2006) (upholding conviction for taking
indecent liberties with a minor).
134. Id. at 863.
135. See id. at 867 (finding that constructive presence can place a defendant "with" a minor
for the purposes of taking indecent liberties). Similarly, courts have found that constructive
presence suffices for the crime of attempted indecent liberties. In United States v. Cook, 61 M.J.
757, 760 (A.F. Ct. Crim. App. 2005), the defendant sent nude photos of himself to minors via
the Internet, resulting in a charge of attempted indecent liberties with a minor under Part IV,
87b of the Manual for Courts-Martial. This offense requires, among other things, that the
accused commit an act amounting to the taking of indecent liberties in the presence of a person
under sixteen years of age and not one's spouse. Id. at 759. The court concluded that had the
trial judge made "an explicit finding that physical presence could be constructive or virtual for
indecent liberties purposes.. . [this] would not have been plain error because the exact nature
of the presence is not germane to the charge of attempted indecent liberties." Id. at 760. The
court ultimately found that "the appellant's guilty pleas to the four attempted indecent liberty
specifications were provident and conclude[d] [that] the findings of guilty to those
specifications are factually and legally sufficient." Id.
25
1152
66 WASH. &LEE L. REV. 1127 (2009)
the conduct would be illegal if it occurs in same room, it is illegal over the
phone, webcam, or computer.
Of course, to the extent that the elements of a given crime requireactual
physical presence, constructive presence has not sufficed. For example, the
Georgia Supreme Court held in 1998 that the crime of child molestation36
requires that the perpetrator be in the victim's actual physical presence.
Some military jurisdictions also require actual137physical presence for the crime
of attempted indecent liberties with a minor.
Virtual worlds, like a number of modem technologies, are likely to chip
away at the need for actual physical presence when the actions would constitute
a crime if physically present. Dirty talk over the phone or sending photos of
one's genitals to a child virtually from a distance exposes children to sexual
content that society has chosen to shield them from. Like these experiences, a
child engaging in virtual sex takes part in a sexual exchange when she sees and
participates in the graphic sexual acts of two avatars, one manipulated by her
and the other by an unwitting adult. Despite the lack of close physical
proximity, for some players, virtual relationships are more real than real-world
ones. 138
Here, again, augmented reality devices simplify the analysis. Like video
cameras placed in changing rooms, an adult whose actions are transmitted by
an augmented reality device to the child's body "constructively place[s]
136. See Vines v. State, 499 S.E.2d 630,631-32 (Ga. 1998) (overturning the conviction of
a man accused of child molestation after engaging in a sexually explicit telephone conversation
with a child on the grounds that the statute required actual presence). As the court observed,
state law "'must be construed strictly against criminal liability and, if it is susceptible to more
than one reasonable interpretation, the interpretation most favorable to the party facing criminal
liability must be adopted."' Id. (quoting Fleet Finance v. Jones, 430 S.E.2d 352, 355 (Ga.
1993)).
137. See United States v. Miller, 67 M.J. 87,91 (A. Ct. Crim. App. 2008) (concluding that
"no reasonable fact-finder could conclude that the... [defendant] committed ...[an attempted
indecent liberty with a child] in the physical presence" of the undercover detective to whom he
sent sexually explicit images of himself via a webcam, believing the detective to be a child,
because of the act's online nature).
In jurisdictions that require intent to sexually gratify oneself to convict, acquittals and
appellate reversals have occurred when the defendant's motivation was unclear. See, e.g., State
v. Brown, 590 S.E.2d 433, 437 (N.C. Ct. App. 2004) (holding that there was insufficient
evidence to satisfy the requirement that the defendant's conversations were intended to gratify
or arouse sexual desire). Courts have also overturned convictions where the communication
was not indecent. See, e.g., U.S. v. Hullett, 40 M.J. 189, 192 (C.M.A. 1994) ("In sum, there is
no evidence that the remark was 'calculated to corrupt morals or excite libidinous thoughts."').
138. See Yee, supranote 25, at 196-97 (noting that many virtual world users feel closer to
their virtual acquaintances than their real-world friends).
26

1153
himself' in the child's presence.' 39 Directing his avatar to stroke the child's
avatar accomplishes what the adult could do in the real world if he were in the
same room as the child. The ease with which physical proximity may be shown
in some scenarios raises what is arguably the strongest ground for resisting the
application of criminal prohibitions to virtual sex with a child: The difficulty of
knowing who is on the other end of that sexual contact, to which this Article
now turns.
3. Ignoranceof the Child's Age
Putting aside masturbation, virtual sex-like real sex-generally requires
at least two people. 40 As Figure 1 illustrated, 141 players can cloak their real
identity and, therefore, their age. A child can present as an adult, and many
adults like to present as children. 42 Should it matter that adults playing sex
games do not know that their virtual partner is a child?
Like many questions of substantive criminal law, for acts in the real world,
the answer depends on where the act occurs. Consider the crime of taking
indecent liberties with a minor. In some jurisdictions, the perpetrator's
knowledge of the victim's age-or lack thereof--can be the difference between
guilt and innocence; 43 in others, it is not. 144 Georgia and North Carolina, for
45
example, do not require any knowledge of age on the part of the perpetrator.
139. See State v. McClees, 424 S.E.2d 687, 690 (N.C. Ct. App. 1993) ("Through the forces
of modem electronic technology, namely the video camcorder, one can constructively place
himself in the 'presence' of another.").
140. See Mohney, supra note 15 (discussing a conversation with a male figure who sat
alone masturbating).
141. See supra Figure 1 (describing the identity of the real-world participants to virtual
sex).
142. See Return to the DarkSide of Second Life, supranote 53 (reporting a news expose
on adults who prey on "children" in Second Life).
143. See infra notes 145-48 and accompanying text (listing states where knowledge of the
victim's age is immaterial). Virtual sex with a child may also constitute a federal crime under
18 U.S.C. 2422(b) (2006), but only if the adult-player believes the other player is a child.
Personal communication from Brian Klebba, Assistant United States Attorney for the Eastern
District of Louisiana, Aug. 6, 2009. Under 18 U.S.C.A. 2422(b) (2006), anyone who
"knowingly persuades, induces, entices, or coerces any individual who has not attained the age
of eighteen years, to engage in prostitution or any sexual activity for which any person can be
charged with a criminal offense, or attempts to do so, shall be fined under this title and
imprisoned not less than ten years or for life."
144. See infra note 149 and accompanying text (noting that in Wyoming, the defendant's
knowledge of the victim's age matters).
145. See GA. CODE ANN. 16-6-4 (West 2009) ("A person commits the offense of child
27
1154
66 WASH. &LEE L. REV. 1127 (2009)
As with the crime of statutory rape, the defendant's knowledge is immaterial.'4

Thus, in Georgia, the State convicted a man of child molestation after he
pushed his genitalia through a hole in the wall between two adjoining bathroom
stalls, one of which was occupied by a child.147 He claimed, to no avail, that he
did not know the occupant was in fact a minor. 48 A different result would
obtain in Wyoming where a person is prohibited from "knowingly" taking
indecent liberties with a minor. 49 If a man in Wyoming pushed his genitalia
into the next bathroom stall, not knowing a child occupied it, he presumably
would go scot-free.
The appropriate treatment of virtual sex with children is further
complicated by the fact that the child player may want to get it on virtually,
raising the age-old question of consent. A majority of states today retain the
crime of statutory rape,150 which in many jurisdictions imposes strict liability 5 '
on adults who engage in sexual relations with children, usually intercourse,
under the age of (depending on the jurisdiction) fourteen, sixteen, or in one
minor]."); Schultz v. State, 599 S.E.2d 247, 248 (Ga. Ct. App. 2004) ("The legislature has
carefully worded the child molestation statute so that the defendant's knowledge of the age of
the victim is not an element of the crime.... ."); N.C. GEN. STAT. 14-202.1 (2008) (prohibiting
a person from "willfully" taking an indecent liberty with a child under 16). The statute requires
that the State must prove the following five elements: (1) the defendant was at least sixteen
years of age, and (2) five years older than his victim, (3) he willfully took or attempted to take
an indecent liberty with the victim, who was (4) under sixteen years of age at the time, and
(5) the defendant's action was for the purposes of arousing or gratifying sexual desire. State v.
Rhodes, 361 S.E.2d 578, 580 (N.C. 1987).
146. See GOLDSTEiN, supra note 103, at 170 (noting that the defense of mistake "is not
usually relevant to issues of child abuse").
147. See Bennett v. State, 631 S.E.2d 402, 405 (Ga. Ct. App. 2006) (upholding the
conviction of a man who was charged with child molestation after pushing his genitalia through
a hole in a bathroom stall occupied by a child).
148. See id.at 404 (rejecting defendant's claim that knowledge of age is an element of the
offense of child molestation).
149. Wyo. STAT. ANN. 6-2-316 (2007). In defining the term "immodest, immoral or
indecent liberties," Wyoming courts have noted that the words "are accompanied in the statute
by the words 'liberties' and 'child' which narrow down and designate with reasonable certainty
the acts and conduct required or forbidden. 'Liberties' are such as common sense of society
would regard as indecent or improper." Sorenson v. State, 604 P.2d 1031, 1034 (Wyo. 1979);
see also VA. CODE ANN. 18.2-370 (2009) (prohibiting a person from "knowingly and
intentionally" exposing himself to a minor under the age of fourteen).
150. Ross E. Cheit & Laura Braslow, Statutory Rape: An Empirical Examination of
Claimsof"Overreaction",in CHILDREN, CULTURE, AND VIOLENCE, supra note 80, at 85, 87-88
(reporting that "a total of 29 states used 16 as the age of consent, and only 3 states had ages of
consent lower than 16").
151. MODEL PENAL CODE 213.6(1) (2001) (rejecting any defense of mistake as to age
when the criminality of the conduct depends on the child being younger than ten).
28

1155
state, eighteen. 152 For example, in Rhode Island, where the age of consent is
16, an adult can be charged with statutory rape if he has sex with a fifteen-yearold, regardless of whether the teenager consented. 153 In Idaho, the age of
consent is eighteen. 54 The Model Penal Code adopts an age of consent of
sixteen. 55 Most of these statutes reach only sexual conduct involving
intercourse, but some jurisdictions' statutes reach other acts, like fellatio and
cunnilingus. 5 6 The "special treatment of intercourse with children is warranted
both to protect immature females from older males who would take advantage
57
of them and to prevent outrage to parental and community sentiment."'
While strict liability prevails in many jurisdictions, other jurisdictions
recognize the potential unfairness of such a rule. As of 1980, "sixteen state
legislatures and four state supreme courts ha[d] adopted mistake as to age as a
complete or partial defense to statutory rape."'158 Of the sixteen states, ten retain
this defense today. 159 This defense operates when criminality of conduct
"depends on the child's being below a critical age other than 10.0'160 It does not
152. Cheit & Braslow, supra note 150, at 87-88.

153. See id.
at 86 (describing Rhode Island's statutory rape laws).
154. See IDAHO CODE ANN. 18-6101 (1997) (adopting age of consent of eighteen).
155. See MODEL PENAL CODE 213.3 (2001) (defining the crime of statutory rape).
156. See CHARLES E. TORCiA, WHARTON'S CRMINAL LAW 285 (15th ed. 1995) (noting
that early on, "the 'abuse' of a female child was deemed the equivalent of carnal knowledge,
[which] occurred where the defendant injured the child's genital organs in an attempt to have
intercourse with her"). Today "in some jurisdictions, the term 'sexual intercourse' means not
only intercourse in the ordinary sense but also intercourse with the mouth or anus; it thereby
encompasses the crimes 'commonly known as rape and sodomy.' Any penetration, however
slight, is sufficient, and emission is not required. However, in the case of cunnilingus or
fellatio, neither penetration nor emission is required." Id. 277.
157. MODEL PENAL CODE 213.1 cmt. 6, at 327-29.
158. See GOLDSTEIN, supra note 103, at 170; cf MODEL PENAL CODE 213.6(1) (reporting
that sixteen state legislatures have statutes allowing defense of age).
159. Arizona, Indiana, Kentucky, Maine, Missouri, Montana, North Dakota, Oregon,
Pennsylvania, and West Virginia have retained the mistake of age defense. See ARIz. REV.
STAT. ANN. 13-1407(B) (2009) (providing mistake of age defense if defendant thought victim
was 16 or older); IND. CODE 35-42-4-9(c) (2004) (same); KY REV. STAT. ANN. 510.030
(West 2008) (same); ME REv. STAT. ANN. tit. 17-A, 254(2) (2006) (same); Mo. REV. STAT.
566.020(3) (1999) (providing mistake of age defense if defendant thought victim was 17 or
older); MONT. CODE ANN. 45-5-511(1) (2007) (providing mistake of age defense ifdefendant
thought victim was 16 or older); N.D. CENT. CODE 12.1-20-01(2) (2009) (providing mistake of
age defense if defendant thought victim was 18 or older); OR. REv. STAT. 163.325(2) (2003)
(mistake of age defense if defendant thought victim was 16 or older); 18 PA. CONS. STAT.
3102 (2000) (same); W. VA. CODE 61-8B-12(a) (2008) (same). Alabama, Arkansas,
Colorado, Delaware, Illinois, and Minnesota have repealed their laws.
160. MODEL PENAL CODE Commentary to 213.6(1).
29
1156
66 WASH. & LEE L. REV. 1127 (2009)
shield adults from criminal wrongdoing when a child is very young, below
the "magic age" described next.
In addition to statutory rape laws, every state in the United States
prohibits sexual contact with a child, variously defined as anyone under the
"magic age" often, 161 thirteen, 162 or fourteen.' 63 Thus, for example, in State
v. Ridgeway,' 64 the court upheld the conviction for sexual assault of an adult
male for masturbating in front of an eleven-year-old under a New Jersey
statute that defines sexual assault as sexual contact with a person who is less
than thirteen-years-old. 165 Like other child molestation statutes, 166 New
Jersey law did not permit the defendant to argue that the child consented or
that he reasonably believed the child to be an adult. 67 As subpart III.A
noted, some child molestation statutes encompass noncontact sexual abuse.
Statutory rape and child molestation laws have been justified variously
as protecting against seduction, youthful poor judgment, teen pregnancy, the
transmission of sexually transmitted diseases, and as preventing actions that
permanently alter the life chances of a child. 68 Many statutory rape laws69
include age differentials to deter older men from exploiting young girls.
The Model Penal Code, for example, requires that the perpetrator be at least
four years older than the victim.
70
States use a variety of differences in age,
both for statutory rape and child molestation, ranging from two to six
161. MODEL PENAL CODE 213.1(1)(d).

162. See N.J. STAT ANN. 2C:14-2(b) (2005) ("An actor is guilty of sexual assault if he
commits an act of sexual contact with a victim who is less than 13 years old and the actor is at
least four years older than the victim.").

163.
164.
Cheit & Braslow, supra note 150, at 86.

See State v. Ridgeway, 606 A.2d 873, 875 (N.J. Super. Ct. App. Div. 1992) (noting
that conviction for sexual assault does not require physical contact between perpetrator and
victim).
165. Id.
166.
See, e.g., Bennett v. State, 631 S.E.2d 402, 405 (Ga. Ct. App. 2006) (rejecting a
mistake of age defense in a prosecution for child molestation).

167. Id.
168. See Sherry F. Colb, The Pros and Cons of Statutory Rape Laws: A Ten-Year
Sentence for Marcus Dwayne Dixon, CNN.CoM, Feb. 13, 2004, http://www.cnn.
com/2004/LAW/02/13/findlaw.analysis.colb.statutory.rape/index.html (last visited Sept. 29,
2009) (noting also that these laws help protect young girls against sexual abuse) (on file with the
169. See GOLDSTEIN, supranote 103, at 156 (quoting the comments to Model Penal Code
213.3); Cheit & Braslow, supra note 150, at 87-92 (reviewing the competing narratives about
statutory rape: to protect young girls from "dirty old men" or to prevent consensual sex between
teen lovers).
170. See MODEL PENAL CODE 213.3 (2001) (defining the crime of statutory rape).
30

1157
a child is under the "magic age," the child's consent

years. 171 But again, when
72
1
irrelevant.
is wholly
These laws long have been controversial and continue to be for a number
of reasons. Statutes that lack an age differential permit the State to criminalize
consensual sex between teen lovers, although at least one study suggests that
prosecutors go after the "dirty old men" cases, rather than the "young love"
cases involving peers. 73 More problematic is the potential for inequitable
enforcement, a specter raised recently by the prosecution of black males
accused of sex with white girls. 174 Others worry about the harshness of the
penalties for statutory rape, which, like the underlying sexual conduct, can
permanently alter the life chances of convicted teens and young adults.'7
Despite persistent concerns about crimes to which a child consented, a
majority of U.S. jurisdictions retain these laws on the books. 176 More
importantly, every jurisdiction in the United States makes sexual conduct with
small children a crime regardless of consent. The import of these statutes for
virtual sex with a child seems to be this: It really will not matter whether the
child cheerfully played along-to the extent that other elements of the crime,
especially the nature of the sexual contact, are satisfied. Thus, if a man in
North Carolina uses his Second Life avatar to engage in virtual sex with a
child's avatar, he theoretically could be prosecuted for taking indecent liberties
171. See Cheit & Braslow, supra note 150, at 87 ("According to the American Bar
Association, 16 states have specified a minimum age difference of greater than 2 years in their
statutes: 6 use three years, 8 use four years, 1 uses five years, and 1 uses six.").
172. See supra notes 161-63 and accompanying text (comparing different jurisdictional
definitions of the "magic age").
173. See Cheit & Braslow, supra note 150, at 107-08 (reviewing studies showing that the
greater the age difference between the victim and the perpetrator, the more likely the case would
be prosecuted).
174. See Colb, supra note 168 (suggesting that a black defendant's acquittal on rape
charges was based partly on testimony that the white victim fabricated the rape claim because
she was afraid of her "racist" father).
175. See id. (noting the harsh penalties for statutory rape and criticizing statutory rape as
permitting "unscrupulous prosecutors and complainants to bring charges on the basis of what is
truly victimless behavior"). One high-profile example involved Genarlow Wilson, a seventeenyear-old high school senior from Georgia who was convicted of aggravated child molestation
after being caught on tape having consensual oral sex with a fifteen-year-old African-American
girl. Brenda Goodman, Man Convicted as a Teenager in Sex Case is OrderedFreed by
Georgia Court, N.Y. TIMEs, Oct. 27, 2007, at A9. Wilson received a ten-year sentence, which
was eventually overturned by the Georgia Supreme Court. See Humphrey v. Wilson, 652
S.E.2d 501,509 (Ga. 2007) ("[Wilson's] crime does not rise to the level of culpability of adults
who prey on children and that, for the law to punish Wilson as it would an adult... [would] be
grossly disproportionate to his crime.").
176. See Cheit & Braslow, supra note 150, at 87-88 (listingjurisdictions that set the age of
consent at 16).
31
1158
66 WASH. & LEE L. REV. 1127 (2009)
with a minor even if he had no idea that a minor controlled the other avatar. 177
By contrast, if he did the same thing in Wyoming, his ignorance of the other
actor's age insulates him from prosecution under that statute. 178 Obviously,
very difficult jurisdictional questions arise as to where the act occurs and what
jurisdictions may reach it, as they do with other technology that uses the
Internet. 7 9 As Part IV notes, some commentators urge that because rules in
one jurisdiction will dictate or "define down" all conduct in virtual worlds,
which have no physical boundaries, real-world law should not penetrate virtual
80
worlds.'
It certainly seems unfair to penalize the North Carolina man for
unwittingly playing virtual sex games with a child. Yet, in the real world,
ignorance of the age of one's sexual partner often provides no defense. For
example, if a woman walks into a bar and buys a guy drinks and at some point
strokes his crotch until he climaxes-all along believing he is twenty-one when
in reality he is thirteen-it is a crime in many jurisdictions. It is likely to be
child molestation, sexual assault, or rape because of his age. Even if no
touching occurs, but rather she engages in graphic talk with him, the woman
may be subject to prosecution for using, indecent language, taking indecent
liberties with a minor, corrupting the morals of minor, or other crimes. In other
words, it does not matter whether she knew he was a child, she is charged with
the responsibility to avoid any sexual interaction with a child.
In some jurisdictions, the woman can shield herself from criminal
wrongdoing (if the child is sufficiently old) by asking for the "man's" driver's
license; if he produces a fake ID showing that he is an adult, she could claim
reasonable mistake.' 8' Prosecutors may take the same stance when it comes to
virtual sex with a child. In virtual worlds, players can always ask for age
182
verification, which may be burdensome although not impossible.
177. See N.C. GEN. STAT. 14-202.1 (2008) (prohibiting a person from "willfully" taking
an indecent liberty with a child under sixteen).
178. See Wyo. STAT. ANN. 6-2-316 (2007) (prohibiting a person from "knowingly"
taking an indecent liberty with a minor).
179. See infra notes 248-57 and accompanying text (discussing jurisdictional hurdles
posed by internet crimes).
180. See infra Part IV (discussing potential challenges to enforcing real-world laws in the
virtual context).
181. See, e.g., ARiz. REv. STAT. ANN. 13-1407(B) (2009) (providing mistake of age
defense if defendant thought victim was sixteen or older); IND.CODE 35-42-4-9(c) (2004)
(same).
182. Commercial enterprises like PayPal have emerged in response to the difficulty of
ensuring the security of one's financial information. For a fee, PayPal provides a secure
financial "lock box." A similar market-based solution may emerge to verify ages for players
who prefer not to gamble on a criminal prosecution. Paul Gil, PayPal101: How Paypal
32
1159
Alternatively, players can limit their virtual sexual hijinks to partners with
whose pedigrees they are familiar. As with real-world sex, players who take no
steps to limit their virtual sexual encounters to other adults may run the risk of
criminal prosecution.
B. The Difficulty with Extending Existing Crimes to VirtualSex
with a Child
As subpart ILI.A demonstrates, broadened definitions of child sexual abuse
permit the prosecution of conduct that extends well beyond the classic case of
child sexual abuse-namely, vaginal or anal intercourse with a known minor.
As Figure 2 illustrates, sexual conduct in a virtual world pushes the envelope of
child sexual abuse in every direction. No physical contact occurs. The players
come nowhere near each other physically. An adult may play with a person she
does not know to be a child, and the child is perfectly happy to play her part.
Dirty
....................
Talk
......
with a Known Minor
iCn
~Statuoy
....... .... ..... .x
Py
iiins
Rape
lChild Molestation*
Figure 2. Expanding Definitions of Child Sexual Abuse
Works, AOuTr.coM, http://netforbeginners.about.com/od/ebaylOl/ss/paypall0l .htm (last visited
Sept. 29, 2009) (on file with the Washington and Lee Law Review). The recent settlements
between state Attorneys General and MySpace and Facebook obligate the sites to develop better
age verification. Barnard, supra note 97.
33

1160
66 WASH. & LEE L. REV. 1127 (2009)
Certainly, not every justification for expanding the definitions of child

sexual abuse applies to virtual sex between an adult and a child. For example,
one justification for child molestation and statutory rape laws is the prevention
of teen pregnancy, 183 an impossible outcome of any virtual encounter that stays
online.
This brings us back once more to whether virtual sex will act as a prelude
to real-world encounters. Certainly, the possibility that virtual sex may lead to
off-line conduct gives many parents and policymakers pause. The potential for
this is great.' 84 Indeed, some worlds like RedLightCenter.com assist
participants to meet in the real world. 8' As the Doe v. SexSearch18 6 and Doe v.
MySpace 187 cases show, 187
these segues can have serious consequences. 188 To the
extent that virtual sex acts as a prelude to real-world sex, even anti-pregnancy
rationales for criminalizing sex with a child are relevant.
When virtual sex remains only a virtual encounter, justifying the extension
of existing state criminal statutes becomes more difficult. Nonetheless, many
of the child protection rationales for such statutes still apply. Clearly, if an
adult and child in the real world used real sex dolls to simulate graphic sexual
acts, like fellatio, it would be a crime in many jurisdictions if the adult intended
to excite himself or the child. 189 If the adult coached the child over an intercom
from another location to use the doll to mimic fellatio, it would still be a crime
if the adult acted with the necessary intent.190 Just as these sex games with realworld dolls involve targeted, one-on-one encounters of a sexual nature between
183. See GOLDSTEIN, supranote 103, at 158 (analyzing research suggesting that many teen
pregnancies involve adult male partners).
184. See supra note 68 and accompanying text (discussing the differing virtual world
policies on encouraging real-world meetings).
186. See Doe v. Sexsearch.com, 502 F. Supp. 2d 719, 722 (N.D. Ohio 2007) (granting
defendant's motion to dismiss plaintiffs claim of negligent misrepresentation after plaintiff was
prosecuted for having sex with a fourteen-year-old he met on defendant's website).
187. See Doe v. MySpace, 528 F.3d 413, 416-17 (5th Cir. 2008) (dismissing plaintiff's
negligence claim after plaintiff was sexually assaulted by a man she met through defendant's
social networking service).
188. See WOLAK ET AL., supra note 56, at 59 (noting that "adults who use the Internet to
meet and form sexual relationships with young teens are often committing crimes and likely to
get themselves and their partners in serious trouble").
189. See, e.g., State v. Every, 578 S.E.2d 642, 647 (N.C. Ct. App. 2003) (upholding the
defendant's conviction for taking indecent liberties with a minor for engaging in sexually
explicit phone conversations with a twelve-year-old under a statute requiring that the defendant
willfully took an indecent liberty with the victim "for the purpose of arousing or gratifying
sexual desire").
190. Id.
34

1161
an adult and child, so does sex play in virtual worlds. When the child
manipulates an avatar through explicit sexual positions and acts, responding to
the adult's choices, she engages in an explicit sexual act, albeit one that is
simulated-just as she does when she simulates sex acts with real-world dolls.
To the extent that the child is aroused, the virtual sex act becomes a form of
masturbation at the adult's invitation.
A hard line stance that treats sex play in virtual worlds like real-world
instances of child sexual abuse is complicated by the nature of the sexual
contact. Is virtual sex simply a game played online that just does not matter?
Even if we would not want our child to play those games, should we care if
someone else's child does? In other contexts, the fact that an action occurred in
the virtual world has not negated the possibility of harm in the here and now.
A Dutch court recently convicted two Dutch boys of "theft of virtual property
after they threatened a classmate with violence" on the rationale that the crime
"was accomplished through physical violence in the real world, and against a
real person, not an avatar."'19' Like virtual sex, sex play in virtual worlds affects
children in the here and now. Virtual or real, games or not, sex play at
premature ages imprints on
the child's psyche certain understandings of sex
92
relationships.
and sexual
Policymakers could choose to wait until an adult attempts to arrange a
real-world meeting with his virtual sex partner-a child-and prosecute that
physical contact. 193 Or authorities could take a more cautious stance and say
that children should not be exposed to virtual sex play because it is sexually
charged, will sexualize them, and will change their understanding of sex and
sexual relationships. Just as children are sexualized when an adult exposes his
genitals to them, minors in the present are being sexualized in the course of this
play. Further, the increasingly realistic, graphic representations of sex by
avatars in virtual worlds' 94 make it more probable that children will be sexually
stimulated by this play.
191. Joshua A.T. Fairfield, The Magic Circle, 11 VAND. J. ENT. & TECH. L. 823, 824
(2009).
192. See GOLDSTEIN, supra note 103, at 144 (listing the harms to children of premature
sexual exposure).
193. See, e.g., Karwoski v. State, 867 So.2d 486, 489 (Fl. Ct. App. 2004) (upholding
conviction for child pornography and attempted exploitation of a minor); State v. Bouse, 150
S.W.3d 326, 336 (Mo. Ct. App. 2004) (upholding conviction for attempted sexual misconduct
with a minor); Hix v. Commonwealth, 619 S.E.2d 80, 88 (Va. 2005) (upholding conviction for
attempted indecent liberties with a minor); Podracky v. Commonwealth, 662 S.E.2d 81, 88 (Va.
Ct. App. 2008) (same); Brooker v. Commonwealth, 587 S.E.2d 732, 736 (Va. Ct. App. 2003)
(same).
194. See Plantec, supranote 61 (discussing Image Metric's highly realistic Emily Project).
35

1162
66 WASH. & LEE L. REV. 1127 (2009)
Just as crucially, an adult's actions contribute to the child's sexualization.

Criminal statutes prohibiting sex with children seek both to protect children
and to prevent adults from overreaching. The adult who engages in virtual sex
with a child also engages in his own sex act, albeit simulated. He manipulates
one of the two avatars and makes choices about the nature of the graphic sexual
acts the avatars engage in or reciprocates the child's choices-presumably for
his own sexual excitement. The classic crimes of child molestation and
indecent liberties with a minor are designed to prevent adults from engaging in
experiences for their own gratification at the expense of others.
Whether the First Amendment requires it or not,' 95 policymakers certainly
will care about the prerogatives of adults in these spaces if they cannot easily
verify the age or identity of their partner. Yet, as this Part has documented,
ignorance of age does not always bar the application of criminal sanctions in
the real world. If it did, the State could not effectively prevent the sexual
exploitation of children. Arguably, ignorance of age also should not preclude
sanctions here. Many states already provide a defense of mistake when the
adult acts with due care, creating in effect a duty to inquire. 196 This duty could
easily carry over to the virtual world, enabling adults to engage in sex play with
one another while leaving children out of it.
IV. Challenges to Reaching VirtualSex with a Child
Any attempts to regulate sex play in virtual worlds inevitably will have to
address what the government can proscribe without trampling on
constitutionally-protected expression. Whole treatises and books examine the
thicket of issues raised by the interplay of speech and conduct on questions of
child protection. It is not possible here to do justice to these questions. This
Part simply identifies, without resolving, four specific questions that would
have to be answered before prosecuting adults for state law crimes against a
child. While other questions may also arise, 197 at least these four questions
195. See infra Part IV (examining the First Amendment issues involved in prosecuting
virtual sex with a minor).
196. See, e.g., ARIZ. REV. STAT. ANN. 13-1407(B) (2009) (providing mistake of age
defense if defendant thought victim was sixteen or older); IND. CODE 35-42-4-9(c) (2004)
(same).
197. For instance, some may argue that children have their own rights under the First
Amendment to be turned on virtually. Compare, e.g., Am. Amusement Machine Ass'n v.

Kendrick, 244 F.3d 572, 576-77 (7th Cir. 2001) (noting that children "have First Amendment
rights" and that they "must be allowed the freedom to form their political views on the basis of
uncensored speech before they turn eighteen, so that their minds are not a blank when they first
exercise the franchise"), andMARioRrn HEINs, NOT INFRONT OF THE CHILDREN: "INDECENCY,"
36

1163
deserve consideration: Is virtual sex speech or conduct? Does the fact that
virtual sex play occurs between avatars online place it beyond the
government's ability to regulate? Will criminal liability for virtual sex play
with a person one does not know to be a child impermissibly burden adults'
access to protected speech? Can virtual worlds even be regulated at all?
The first question that would have to be resolved, perhaps the thorniest in
First Amendment jurisprudence, is whether virtual sex is speech or conduct.
When an activity combines conduct with speech, it sometimes receives less
protection.1 98 As Smolla explains, "when the government promulgates a rule
for reasons unrelated to the content of expression, and the governmental
interests at stake are 'substantial,' the regulation will normally be upheld even
though it may have the incidental effect of interfering with speech." 199 In
United States v. O'Brien,2" the United States Supreme Court considered an
action at the intersection of speech and conduct-the burning of draft cards in
CENSORSHIP, AND THE INNOCENCE OF YOUTH 258 (2001) ("If a First Amendment difference is to
be maintained between minors and adults, there ought at least to be more thoughtful and finely
calibrated judgments about it."), with KEVIN W. SAUNDERS, SAVING OUR CHILDREN FROM THE
FIRST AMENDMENT 2 (2003) (arguing that "[w]hen the recipient of the speech is a child still
developing psychologically, the costs of unrestrained speech may be too high").
Whether children have these rights may matter not only to whether an adult commits a
crime but to whether children do, as well. Part II noted that children actively participate in
virtual sex. As the recent spate of prosecutions of teenagers for "sexting" nude photographs to
each other on their cell phones suggests, it is possible that children engaging in virtual sex may
also be committing a crime. Samantha Anderson, Teens Using Cell Phonesfor 'Sexting' Face
Serious Charges,Mar. 16, 2009, http://www.krdo.com/Global/Story.asp?S=1001 5780&nav=
menu552_l (last visited Sept. 29, 2009) (on file with the Washington and Lee Law Review). In
Alabama, several middle school students were arrested for exchanging nude photographs. Id.
The head of the Special Victims Unit of the Colorado Springs' District Attorney's Office,
Donna Billek, says "[I]t's a criminal charge under sexual exploitation of a child," adding that,
"[tihe person who sent the photo is distributing child pornography." Id. Judges have been more
circumspect about whether sexting should be treated as a crime. In Ohio, eight male and female
teens between fourteen and seventeen received community service and were directed to survey
their classmates about sexting after sending nude photographs over their cell phones. Wendy
Koch, Teens Caught Sexting Face Porn Charges, USA TODAY, Mar. 11, 2009,
http://www.usatoday.com/tech/wireless/2009-03-1 1-sexting_N.htm (last visited Sept. 29,2009)
(on file with the Washington and Lee Law Review). The Juvenile Court judge assigned to the
case struggled with how to handle the situation because, as he said, "If the 17-year-old who sent
the nude photos to an ex-boyfriend were convicted of a child-porn charge, she would be a
registered sex offender for 20 years." Id.
198. See RODNEY A. SMOLLA, LAW OF DEFAMATION 4.63 (2d ed. 2008) (noting that hate
speech may be prosecuted if it is on the brink of inciting violence).
199. Id.
200. See United States v. O'Brien, 391 U.S. 367,386 (1968) (upholding the conviction of
a man for burning his draft card during an anti-war demonstration).
37
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66 WASH. & LEE L. REV. 1127 (2009)
protest of the Vietnam War.2 ' In upholding O'Brien's conviction, the Court
held that the government may regulate an activity that combines speech and
conduct if the governmental regulation is: (1) "within the constitutional power
of the Government," (2) furthers an important or substantial governmental
interest, (3) is unrelated to the suppression of free expression, and (4) "if the
incidental restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest. ' ,20 2 The third prong acts as a
"gatekeeper," determining whether a particular regulation receives the benefit
of O'Brien's"lower standard 20 3 of review. Distilling the essence of O'Brien,
Smolla notes that, "when governmental intent is truly 'clean' and genuinely
unrelated to the suppression of free expression, then a standard of judicial
review less stringent than strict scrutiny is warranted for the incident 'spillover'
'2 4
effect that the law has on free speech.
A number of contexts blur speech and conduct. Consider, for example,
sexual harassment. MacKinnon urges that "if ever words have been understood
as acts, it has been when they are sexual harassment." 205 Although, as she
notes, "sexual harassment might be characterized as 'sexual expression,' it has
never been suggested that its regulation must meet obscenity standards....
Harassment that is sexual is a sexual act ....106
Like sexual harassment, virtual sex also has elements of both speech and
conduct. As Balkin notes, "virtual worlds greatly raise the stakes in the conflict
20 7
between freedom of speech and association and antidiscrimination norms.
Balkin argues that in the real world, social conventions "distinguish
governmental purposes for regulation as being directed at speech or at conduct.
The line between 'speech' and 'conduct' is a legal fiction that does not
represent a natural division of the social world, but is rather largely
201.
202.
203.
204.
Id.at 377.
Id.
SMOLLA, supra note 198, 4:63 n.2.
Id. 4:63 n.l.
205. CATHERINE MACKINNON, ONLY WoRDs 45 (1993). MacKinnon argues that
"[c]onstruing these [acts] as 'speech'-in terms of their form as expression and their content as
ideas-apparently looks like what it is: a transparent ploy to continue bigoted abuse and avoid
liability." Id.at 47-48.
206. Id.at 49-56.
207. Jack M. Balkin, Virtual Liberty: Freedom to Design and Freedom to Play in Virtual
Worlds, 90 VA. L. REV. 2043, 2089-90 (2004) (arguing that the most important distinction in
virtual worlds between speech and conduct "may be whether the virtual space is acting like a
marketplace" and secondarily whether the virtual world is "offered as a space for the free
exchange of ideas, or is created to realize the artistic or ideological vision of the platform
owner").
38

1165
conventional. Even so, in a wide variety of settings, the categorization of

certain activities as speech or conduct, or of government purposes as attempts
to regulate speech rather than conduct, can become widely accepted. '20 8 By
contrast:
[C]onventional agreements about what is speech and what is conduct [in
virtual worlds] quickly break down, because we have not yet developed
understandings about what counts as "acting" versus "speaking" in a virtual
environment.... [T]orts that are actionable in virtual environments are, by
and large, communications torts. They are activities where one person
harms another through speaking or communicating. Virtual worlds blur the
conventional boundaries between speech and conduct as we currently
understand them precisely because all conduct in virtual worlds must begin
as a form of speech.20 9
Here, the application of existing crimes to virtual sex with a child, rather
than the creation of new crimes, may evidence a "clean" intent unrelated to "the
suppressing of free speech."2 10 As Part III illustrated, the State can reach dirty
talk over the phone, notwithstanding First Amendment protection of speech,
because it impacts an actual child or other person. In other words, dialogue
alone is actionable when it occurs over the phone if it is intended to gratify the
adult. This is so because sexual dialogue constitutes one kind of sexual
interaction with an actual child. Criminal bans are intended to protect actual
children from actualharm flowing from sexual exploitation. 211 Further, virtual
sex involves a lot more than mere sexual dialogue.2 12 Virtual sex combines sex
chat via voice or IM with a graphic interactive sexual performance in which
both the adult and child participate through their avatars.
Speech proponents also may argue that virtual sex is no different than
publishing, frame by frame, successive images of an avatar engaged in, for
example, intercourse-first with engorged genitalia, then inserting it into an
orifice of the other avatar, ejaculating, and withdrawing. The publication by
adults of such "snapshots" should be permitted, this argument goes, despite the
risk that some child might happen upon them. Again, the characterization of
virtual sex as mere publication of lawful pornography discounts the
involvement of a specific, actual child in an interactive sexual exchange.
208. Id.
209. Id.
210. SMOLLA, supra note 198, 4:63.
211. Some crimes are intended to protect all people, not just children, such as the
prohibition against indecent acts with another. See supraPart HI.A. 1 (discussing the crime of
indecent acts with another).
212. See World of Warcraft Online, supra note 72 (describing emoting).
39
66 WASH. & LEE L. REV 1127 (2009)
1166
Unlike still or moving images of sexual acts, these "images" are created in part
by the child's actions and responses. Children who play along are not passive
observers of a pornographic movie created and distributed by an adult for other
adults-they are participants in it. Moreover, the involvement of an actual
the State to encroach more significantly on the liberties of
child authorizes
3
21
adults.
A second question also will require evaluation: Does the fact that virtual
sex play occurs between avatars online place it beyond the government's
ability to regulate? As a general matter, the First Amendment protects
depictions of "virtual child pornography"--defined as pornographic images that
appear to depict actual children but that do not use an actual child in the
production 214-so
long as those depictions are not obscene. 215 Thus, adults
engaged in virtual sex with one another presumably cannot be prohibited from
if it is not obscene--even if one or both adults use a child-like
doing so
216
avatar.
213. See, e.g., New York v. Ferber, 458 U.S. 747, 761 (1982) (noting that the
government's interest in protecting children was substantially weightier than the interest in
protecting free speech).
214. Some images of virtual child pornography are computer generated while others use
adults who appear to be children. See United States v. Williams, 128 S. Ct. 1830, 1838 (2008)
(upholding the PROTECT Act of 2003, which bans the distribution of certain child
pornography involving the use of actual children); id. at 1850 (Souter, J., dissenting) (noting
that Ashcroft v. Free Speech Coalition "held that pictures without real minors (but only
simulations, or young-looking adults) may not be the subject of a non-obscenity pornography
crime"); Ashcroft v. Free Speech Coal., 535 U.S. 234, 258 (2002) (striking down as overbroad
and unconstitutional a section of the Child Pornography Prevention Act of 1996 (CPPA)). The
CPPA banned "a range of sexually explicit images, sometimes called 'virtual child
pornography,' that appear to depict minors but were produced by means other than using real
children, such as through the use of youthful-looking adults or computer-imaging technology."
Id. at 234.
215. See Williams, 128 S. Ct. at 1839 (noting that constitutionally proscribable material
under Ferber and Miller includes "obscene material depicting (actual or virtual) children
engaged in sexually explicit conduct, and any other material depicting actual children engaged
in sexually explicit conduct"); Ashcrofi, 535 U.S. at 258 (finding that the CPPA impermissibly
chilled speech because it reached speech that was not obscene under the Miller test, nor the
product of sexual abuse, as in New York v. Ferber).
216. See Bloomfield & Duranske, supra note 11, at 1192 (arguing that "in light of the
Miller test, it would be inappropriate to ask whether a reasonable person would find that Second
Life, taken as a whole, lacks serious literary, artistic, political, or scientific value, just as it
would be inappropriate to ask the question about a museum"). The authors go on to note the
following:
Some activities in SecondLife clearly possess such value, just as some exhibits in a
museum do. However, certain user-created works may be offensive and lack
redeeming value. In such cases, accusations of obscenity would need to be leveled
against the particular content, not against Second Life itself, or a museum.
40

1167
A different result may obtain when a child controls one of the two avatars.
Certainly, the State's interest in protecting children from exploitation can
sometimes outweigh even the need to protect speech under the First
Amendment.2 17 In New York v. Ferber, Is the Supreme Court upheld a New
York state law banning the sale or promotion of child pornography. 219 The
Court held that the banned material need not meet the obscenity standard set
forth in Miller220 because the State's interest in protecting children was
substantially weightier than its interest in regulating obscene speech. 221 As the
Court explained, "[t]he prevention of sexual exploitation and abuse
of children
222
constitutes a government objective of surpassing importance. ,
In its 2008 decision in UnitedStates v. Williams,223 the Court reiterated the
significance of an actual child's involvement In Williams, the Court
considered the PROTECT Act's 224 anti-pandering provision. 225 This provision,
as the Court explained:
Id.
217. See Ann Bartow, Why HollywoodDoes Not Require "Saving"from the Recordkeeping
Requirements Imposed by 18 U.S.C. Section 2257, 118 YALE L.J. POCKET PART 43, 47 (2008)
("[I]t is children for whom the protections of [the law] are clearly intended. Some twelve-yearolds can be made up to look as though they were twenty-five. If a twelve-year-old is one of the
performers, the work is 'child' pornography."). Bartow notes that "[s]urely that is a contentbased distinction that the First Amendment can tolerate." Id.
218. See New York v. Ferber, 458 U.S. 747, 765 (1982) (holding that material that is the
product of child sexual abuse is not protected by the First Amendment).
219. Id. at 774.
220. For material to be declared obscene, the government must satisfy a three-part test:
"(a) whether [the work] ... taken as a whole, appeals to the prudent interest ....
;(b) whether
the work depicts or describes, in a patently offensive way, sexual conduct specifically defined
by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value." Miller v. California, 413 U.S. 15, 24 (1973) (holding that
obscene material is not protected by the First Amendment).
221. See Ferber,458 U.S. at 761 ("The Miller standard, like all general definitions of what
may be banned as obscene, does not reflect the State's particular and more compelling interest
in prosecuting those who promote the sexual exploitation of children.").
222. Id. at 757. According to the National Center for Missing & Exploited Children,
between 2002 and 2005, the Center reviewed 4,264 child pornography cases and identified
nearly 600 child victims. WOLAK ET AL., supra note 56, at 60.
223. See United States v. Williams, 128 S. Ct. 1830, 1847 (2008) (upholding the
PROTECT Act).
224. 18 U.S.C. 2252A (2006).
225. See id. 2252A(a)(3)(B) (prohibiting certain activities related to the online
transmission of child pornography). The PROTECT Act contained the following provision
providing for the imprisonment of:
(a) Any person who--... (3) knowingly-...
(B) advertises, promotes, presents, distributes, or solicits through the mails, or
41
66 WASH. & LEE L. REV. 1127 (2009)
1168
[B]ans the collateral speech that introduces [child pornography] into the
child-pornography distribution network. Thus, an Internet user who solicits
child pornography from an undercover agent violates the statute, even if the
officer possesses no child pornography. Likewise, a person who advertises
virtual child pornography as depicting actual children also falls within the
reach of the statute.
The Court acknowledged that while the State could not ban virtual child
pornography, the State could restrict the pandering of a visual depiction of an
actual minor because this requirement "makes clear that, although the sexual
intercourse may be simulated, it must involve actual children (unless it is
obscene).,227 Congress may proscribe such conduct because the "definition of
the material or purported material that may not be pandered or solicited
precisely tracks the material held constitutionally proscribable in Ferber and
Miller: Obscene material depicting (actual or virtual) children engaged in
sexually explicit conduct, and any other material depicting actual children
engaged in sexually explicit conduct. 228 Virtual sex with a child by definition
involves an actual child.22 9
The Court long has held that speech connected to the commission of a
crime receives far less protection than other speech: "Many long established
criminal proscriptions-such as laws against conspiracy, incitement, and
solicitation--criminalize speech (commercial or not) that is intended to induce
or commence illegal activities. 2 30 Such speech receives less protection
because offers to give or receive what is unlawful have no social value,
using any means or facility of interstate or foreign commerce or in or affecting

interstate or foreign commerce by any means, including by computer, any material
or purported material in a manner that reflects the belief, or that is intended to cause
another to believe, that the material or purported material is, or contains-(i) an obscene visual depiction of a minor engaging in sexually explicit conduct; or
(ii) a visual depiction of an actual minor engaging in sexually explicit conduct;
Id.
226.
227.
Williams, 128 S. Ct. at 1838-39.

Id. at 1841; see also Ashcroft v. Free Speech Coal., 535 U.S. 234, 245-46 (2006)
(stating that the First Amendment does not protect obscenity or pornography produced with
at 256 (holding invalid the challenged provision of the CPPA because it
actual children); id.
"cover[ed] materials beyond the categories recognized in Ferberand Miller").
228. Williams, 128 S. Ct. at 1839. The Supreme Court upheld the anti-pandering
prohibition in part because it required a knowing violation of each element, including the fact
that the image traded contained an obscene visual depiction of a minor or an explicit sexual
depiction of an actual minor. Id.
229. See supra Figure 1, scenarios 3-6.
230. United States v. Williams, 128 S.Ct. 1830, 1841-42 (2008).
42

1169
affording the purveyor no First Amendment protection.2 Thus, in Williams,

the Court concluded against a First Amendment challenge that "[o]ffers to
provide or requests to obtain unlawful material [namely, child pornography]...
are similarly undeserving of First Amendment protection." 232 As Part III
suggested, virtual sex with a child may well constitute a real-world crime. As a
consequence, courts may be inclined to give it much less protection under the
First Amendment, although this too is an open question.
This brings us to a third question that must be resolved: Even if an actual
child participates, will criminal liability for virtual sex play with a person one
does not know to be a child violate the First Amendment by burdening adults'
access to protected speech? Virtual worlds, by their very nature, frustrate the
ability to know with certainty the identity or age of the person on the other end
of a virtual sexual interaction. Players lack the opportunity, available in the real
world, to evaluate physical cues suggesting youth-inordinate acne, peach fuzz,
a cracking voice, immature social skills-all things that might alert one to the
possibility of statutory rape charges for real sex.233 Certainly, plenty of adults
in the real world misjudge a partner's true age, as the SexSearch.com case and
the cases in Part III illustrate. In the real world, an adult who engages in sexual
conduct with a minor is not saved (in many jurisdictions) by her ignorance of
234
the child's minority.
Moreover, other technology, like the telephone, also frustrates the ability
to know with certainty the identity, or age, of the person on the other end. As
Part III demonstrated, if a conversation over the phone is intended to arouse the
speaker or the listener, it may be a crime in many states, despite the fact that the
231. See id. at 1841 (noting that "offers to give or receive what is illegal to possess have no
social value").
232. Id.at 1842.
233. See Steven Dowshen, Understanding Puberty, Kids Health, http://kidshealth.org/
parent/growth/growing/understanding-pubertyhtml# (last visited Sept. 29, 2009) (describing
common physical changes that occur in adolescents during puberty) (on file with the
234. See, e.g., GA. CODE ANN. 16-6-4 (2009) ("A person commits the offense of child
minor]."); Schultz v. State, 599 S.E.2d 247, 248 (Ga. Ct. App. 2004) ("The legislature has
carefully worded the child molestation statute so that the defendant's knowledge of the age of
the victim is not an element of the crime ....
");
N.C. GEN. STAT. 14-202.1 (2008) (prohibiting
a person from "willfully" taking an indecent liberty with a child under sixteen). North
Carolina's statute requires that the State must prove five elements: (1) the defendant was at
least sixteen years of age, and (2) five years older than his victim, (3) he willfully took or
attempted to take an indecent liberty with the victim, who was (4) under sixteen-years of age at
the time, and (5) the defendant's action was for the purposes of arousing or gratifying sexual
desire. State v. Rhodes, 361 S.E.2d 578, 580 (N.C. 1987).
43
1170
66 WASH. &LEE L. REV. 1127 (2009)
speaker did not and could not know the listener was a child. 235 To the extent
that statutes criminalizing dirty talk over the phone with a specific child do not
chill speech in violation of the Constitution, their application to virtual sex
would seem to pose no more problems.
Activities on the Internet always have posed special challenges for the
State's ability to regulate, however.2 36 Fairfield notes, for example, that the
Supreme Court thrice struck down Congressional attempts to protect children
can only
online.2 37 He distills from these decisions the fact that "Congress
238
burden speech if it uses the least restrictive means available to it."
Fairfield notes that "the United States Supreme Court has long maintained
that where users of a service are anonymous, criminal liability cannot ride on
the un-knowing communication of harmful material to users who turn out to be
children.
2 39
Indeed, in Reno v. ACLU,24 the Supreme Court concluded the
permissibility of nonobscene expression by adults cannot turn on the remote

possibility of a child viewing it 24 1 There, the Court struck as overbroad
Section 223 of the Communications Decency Act (CDA),242 which prohibited
the online transmission of "indecent" or "patently offensive" material to a
known minor.243 Under that construction of the CDA, the Court observed,
constitutionally protected communications between adults would be curtailed
because some minor somewhere might view them electronically. 244 The Court
235. See supraPart III.A.3 (discussing statutory schemes where ignorance ofa victim's age
is no defense).
236. Fairfield and Bloomfield more than adequately depict the struggle between Congress
and the U.S. Supreme Court to define the limits of the First Amendment as it relates to the
transmission of pornographic materials. Fairfield, supra note 11, at 1225-31; Bloomfield &
Duranske, supra note 11, at 1186-9 1.
237. See Fairfield,supra note 11, at 1229 (noting that "Congress has had three bites at this
apple").
238. Id. at 1230.
239. Id. at 1228.
240. See Reno v. ACLU, 521 U.S. 844, 885 (1997) (invalidating portions of the
Communications Decency Act).
241. See id.at 876 ("Knowledge that, for instance, one or more members of a 100-person
chat group will be a minor-and therefore that it would be a crime to send the group an indecent
message-would surely burden communication among adults.").
242. See 47 U.S.C. 223 (2006) (prohibiting the transmission of material that is obscene
or contains child pornography).
243. See Reno, 521 U.S. at 859-61 (listing the applicable provisions of the CDA).
244. See id.at 876 ("Given the size of the potential audience for most messages, in the
absence of a viable age verification process, the sender must be charged with knowing that one
or more minors will likely view it."). Congress re-enacted 223 of the CDA to prohibit the
transmission of material that is obscene or child pornography. 47 U.S.C. 223(a)(1)(B)(ii)
(2006).
44

1171
explained -that "[t]he general, undefined terms 'indecent' and 'patently

offensive' cover large amounts of nonpornographic material with serious
educational or other value. 24 5 As Part I illustrated, criminal prohibitions
against sex with a child require the involvement of an identifiablechild,not the
mere possibility of one, in a sexual exchange with an adult. 246 This-together
with the interactive nature of virtual sex, which requires child-players to make
independent choices to take actions or reciprocate the adult's actions-also
makes it difficult to know how this question would be resolved. Moreover, it is
probable that prosecutors will choose to prosecute only the most compelling
cases--e.g., those in which the adult player knew or had reason to believe that
they were playing sex games with a child-making concerns about ability of
adults to avoid prosecution when playing sex games a more academic problem,
than a real one.247
A fourth question also merits consideration: Should real-world law
penetrate virtual worlds at all? Commentators have only recently explored
whether actions in virtual worlds might someday provide a basis for real
criminal prosecutions.248 Some argue that a "magic circle" surrounds virtual
245. Reno, 521 U.S. at 877.
246. See supra Part III (discussing various statutory schemes that criminalize sexual
conduct with a minor).
247. Personal communication with Brian Klebba, Assistant United States Attorney for the
Eastern District of Louisiana, Aug. 6, 2009.
248. See Greg Lastowka & Dan Hunter, Virtual Crimes, 49 N.Y.L. ScH. L. REv. 293,315
(2004) (exploring the possibility of prosecuting virtual world harms under criminal trespassing
statutes). The application of laws to virtual worlds raises very difficult jurisdictional questions
about where the conduct occurs and what jurisdictions may reach it, although these questions
are not unique to virtual worlds. See Terrence Berg, www.wildwest.gov: The Impact of the
Internet on State Power to Enforce the Law, 2000 BYU L. REv. 1305, 1305-06 (2000) ("For
those charged with enforcing state law, whether civil or criminal, this new world of cyberspace
has sometimes been compared to the 'wild, wild west' without a sheriff."). Furthermore, "the
Internet also offers criminals a huge and easy-to-reach pool of potential victims; so state law
enforcement authorities will increasingly need to respond to cybercrimes that are perpetrated
and located outside the boundaries of territorial jurisdiction." Id. at 1307; see also Henry H.
Perritt, Jr., Jurisdictionin Cyberspace, 41 VILL. L. REv. 1,2 (1996) ("The Global Information
Infrastructure ...links suppliers and users of electronic resources around the world, making it
more difficult to localize wrongdoing for purposes of criminal or civil litigation."). Perritt poses
the following problem:
Similar questions, addressed by different rules, arise in the criminal context.
Suppose the message is criminal instead of defamatory, involving child
pornography or indecency, or representing some sort of financial fraud, forgery or
terrorism. Must the wrongdoer be tried only where he or she is physically found?
If the answer is yes, how should the wrongdoer be apprehended and moved to the
place of trial? Whose substantive criminal law should apply?
Id. at 3.
45
1172

66 WASH. & LEE L. REV. 1127 (2009)
worlds, making them immune from real-world law. 249 Proponents advance
three arguments for the exclusion of real-world law. First, the application of
one jurisdiction's laws to borderless virtual worlds would allow the most
restrictive jurisdiction to dictate virtual world practices.
Second, players in
249. See Fairfield, supra note 191, at 823 (debunking the notion of a magic circle and
concluding that real-world law "cannot reasonably be excluded from virtual worlds" but that
players and site operators "can control the interface between law and virtual worlds through
their agreements, customs, and practices").
250. See Andrew E. Jankowich, Propertyand Democracy in Virtual Worlds, 11 B.U. J.
ScL & TECH. L. 173, 199 (2005) (noting that this multi-jurisdictional approach could create a
race to the bottom). The Dormant Commerce Clause may also be marshaled to preclude the
application of real-world law to the virtual world. In American LibrariesAssociation v. Pataki,
a federal district court in New York preliminarily enjoined a statute criminalizing the knowing
communication of materials containing sexual content to minors by computer. Am. Libraries
Ass'n v. Pataki, 969 F. Supp. 160, 183 (S.D.N.Y. 1997). New York's statute violated the
Dormant Commerce Clause because it "concem[ed] interstate commerce," and sought "to
regulate conduct occurring outside its borders." Id. at 169, 173. The burdens imposed on
interstate commerce were "excessive in relation to the local benefits it confer[red]." Id. at 177.
Describing the Dormant Commerce Clause as a "'nuclear bomb of a legal theory' against state
Internet regulation," Goldsmith notes that a number of courts have followed Patakito strike
down statutes regulating pornography and spam. Jack L. Goldsmith, The Internet and the
DormantCommerce Clause, 110 YALEL.J. 785,786 (2001) (quoting Declan McCullagh, Brick
by Brick, TIME DIGITAL DAILY, Jan. 31, 1997, available at http://www.time.com/time/digital/
daily/0,2822,11738,00.html). See also ACLU v. Johnson, 194 F.3d 1149, 1161 (10th Cir.
1999) (affirming a lower court's injunction based on a Commerce Clause analysis of a statute
criminalizing "the dissemination by computer of material that is harmful to minors"); Psinet,
Inc. v. Chapman, 108 F. Supp. 2d 611,627 (W.D. Va. 2000) (preliminarily enjoining a Virginia
statute that criminalized using the Internet to "sell, rent or loan to a juvenile or to knowingly
display for commercial purpose" certain sexual materials that are "harmful to juveniles" because
it "attempt[ed] to regulate commerce wholly outside of Virginia's borders" in violation of the
Commerce Clause and "potentially subjects citizens to inconsistent state regulations");
Cyberspace Commc'ns, Inc. v. Engler, 55 F. Supp. 2d. 737,751 (E.D. Mich. 1999) (enjoining a
statute criminalizing the use of computers or the Internet to disseminate sexually explicit
materials to minors "for the reasons explained in [Pataki]").
In the wake of Pataki, a number of courts have upheld state law convictions despite
Commerce Clause challenges. Some courts have held that luring minors with materials
transmitted by computer to engage in sex cannot be a form of "legitimate commerce." See
People v. Foley, 692 N.Y.S.2d 248,253 (N.Y. Sup. Ct. 1999) (upholding New York Penal Law
235.22(2), which added a "luring" prong to the statute struck down in Pataki); State v.
Backlund, 672 N.W.2d 431,437 (N.D. 2003) (upholding a statute prohibiting adults from luring
minors by computer to "engage in sexual acts with [the] adult or ...sexual performance... for
[the] adult's benefit"); People v. Hsu, 99 Cal. Rptr. 2d 184, 198 (Cal. Ct. App. 2000) (enforcing
a statute criminalizing the knowing distribution of"harmful matter" to known minors "with the
intent of arousing" either the sender or the minor and "for the purpose of seducing a minor");
Hatch v. Superior Court, 94 Cal. Rptr. 2d 453, 479 (Cal. Ct. App. 2000) (convicting the
defendant of attempted seduction of a minor and quoting Peoplev. Foley). Some courts have
found in addition, that any incidental effect on interstate commerce is outweighed by the state's
"compelling interest in protecting minors from ...being seduced to engage in sexual activities."
Hsu, 99 Cal. Rptr. 2d at 190; see also Foley, 692 N.Y.S.2d at 256 ("[A]ny incidental effects that
46

1173
virtual worlds consent to the exclusion of real-world law through agreements

with site operators. 251 Third, "actions that occur within virtual worlds are not
real, and thus cannot be sanctioned using real-world law., 2 52 Kerr, for
example, argues that the State's considerable power to sanction conduct
"should be reserved for harms that other mechanisms cannot remedy. '253 But
harms in the virtual world, like virtual murder, "should trigger internal virtual
remedies.
, 254
Other commentators reject the idea of a magic circle. As Fairfield flatly

notes, "[t]here is no 'real' world as distinguished from 'virtual' worlds. Rather,
all supposedly 'virtual' actions originate with real people, and impact real
people, albeit through a computer-mediated environment. ' 255 Even the
proponents of a magic circle leave room for the application of real-world law in
some cases. Kerr would permit criminal law to redress harms that "go outside
the game., 256 For example, if a player steals virtual furniture by using an
unauthorized password, this action resembles "traditional theft, [and is] closely
analogous to often-prosecuted thefts involving unauthorized use of credit cards
and ATM cards." 257 The connection to a real-world harm is especially relevant
to virtual sex with children who experience harms that continue beyond the
boundaries of the virtual world. 8 Unlike adults, children legally cannot
consent to contracts that expose them to such harms.259
[state law] may have on commerce are not unduly burdensome in relation to the compelling
interest of the State in protecting children."). Other courts reason that state law reaches only
crimes committed within the state, thus precluding any extraterritorial enforcement of state law.
Hatch, 94 Cal. Rptr. 2d at 473 ("Contrary to Pataki's conclusion the New York statute
'projected its law into other states' ... here there is no reason to suppose California would
attempt to impose its policies on other states in light of the relevant California penal statutes
[that] ... generally bar punishment for wholly extraterritorial offenses.. .. "); Hsu, 99 Cal.
Rptr. 2d at 191-92 (same). Finally, courts have refused to "insulate pedophiles from
prosecution simply by reason of their usage of modem technology." Hatch, 94 Cal. Rptr. 2d at
471 (arguing that Pataki makes "a sort of preemption argument: that simply logging on the
Internet automatically places one beyond the reach of state criminal prosecution").
251. Kerr sees a limited role for criminal law, which "tends to follow the physical rather
than the virtual: it looks to what a person does rather than what the victim virtually perceives."
Kerr, supra note 44, at 416.
252. Fairfield, supra note 191, at 825.
253. Kerr, supra note 44, at 417.
254. Id.
255. Fairfield, supra note 191, at 825.
256. Kerr, supra note 44, at 417.
257. Id. at 423.
258. See supra Part III.A. 1 (discussing the harms that children experience due to sexual
interactions with adults).
259. See 17A AM. JuR. 2D Contracts 28 (2009) ("A natural person who manifests assent
47

1174
66 WASH. & LEE L. REV. 1127 (2009)
In short, with so many thorny questions, it is anyone's guess whether

states constitutionally may proscribe the sexual hij inks of adults with children
in virtual worlds. To the extent that the First Amendment or the "magic circle"
does not immunize adults who play sex games with children, plenty of existing
crimes permit states to reach this behavior.
V Conclusion
This Article examines a phenomenon that largely has escaped the notice of
regulators: The corruption of a child's innocence as a result of virtual sex play.
Although children are not supposed to be in these spaces, any kid can sneak in
by giving a fake birth date. Once inside, a child may take part in virtual hookups that are explicit, raunchy, and increasingly life-like.
A number of real-world crimes provide ready vehicles for sanctioning
adults who, wittingly or unwittingly, engage in virtual hook-ups with children.
These crimes encompass sexual contact with willing persons whom the adult
believed to be of age, and which involve neither physical touching nor close
proximity to the child. While the application of these crimes to virtual sex with
a child stretches even the ballooning definition of child sexual abuse, it
advances the dual child protection rationales underpinning these laws: To
avoid the premature initiation of children into sexual activities that may warp
their sexual identities and practices, and to prohibit adults from satisfying
sexual urges with children who cannot protect themselves adequately. While
speech proponents may recoil at the prospect of criminal sanctions for virtual
sex with children, arguing that it would unfairly trample on the prerogatives of
adults and chill all virtual sex, it is unclear whether First Amendment
arguments will save adults from prosecution. Until this question is resolved,
adults who engage in virtual sex with children do so at their own peril.
to a transaction has full legal capacity to incur contractual duties unless he or she is: (1)under
guardianship; (2) an infant; (3) mentally ill or defective; or (4) intoxicated.").
48

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Washington and Lee Law Review

Sex Play in Virtual Worlds

Wilson: Sex Play in Virtual Worlds

Sex Play in Virtual Worlds

III. Is Virtual Sex with a Child a Crime? ....................... . .. . . . .. . . .. . . . .. . . 1145

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66 WASH. &LEE L. REV 1127 (2009)

playing stickball on urban streets or kickball on suburban playgrounds.' It now

Wilson: Sex Play in Virtual Worlds

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Washington and Lee Law Review, Vol. 66 [2009], Iss. 3, Art. 9

66 WASH. &LEE L. REV. 1127 (2009)

explores those risks. In particular, it examines sex play in virtual worlds, a

Wilson: Sex Play in Virtual Worlds

Produced by The Berkeley Electronic Press, 2009

Washington and Lee Law Review, Vol. 66 [2009], Iss. 3, Art. 9

66 WASH. &LEE L. REV 1127 (2009)

While avatars are usually construed as

something of our own choosing-a one-way process-the fact is that our

COLLABORATION AND INTERACTION IN SHARED VIRTUAL

Wilson: Sex Play in Virtual Worlds

after he abruptly divorced her avatar. 29 Noting that relationships and

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Washington and Lee Law Review, Vol. 66 [2009], Iss. 3, Art. 9

66 WASH. & LEE L. REV. 1127 (2009)

Wilson: Sex Play in Virtual Worlds

Produced by The Berkeley Electronic Press, 2009

Washington and Lee Law Review, Vol. 66 [2009], Iss. 3, Art. 9

66 WASH. & LEE L. REV 1127 (2009)

Wilson: Sex Play in Virtual Worlds

Produced by The Berkeley Electronic Press, 2009

Washington and Lee Law Review, Vol. 66 [2009], Iss. 3, Art. 9

66 WASH. &LEE L. REV. 1127 (2009)

ONLINE VICTIMIZATION OF YOUTH:

Wilson: Sex Play in Virtual Worlds

were the most consistently populated area" he entered in SecondLife.6 While

regulate virtual sex with minors.

Dan Hunter, Censorship in TSO, http://terranova.blogs.com/terranova/2003/12/

Produced by The Berkeley Electronic Press, 2009

Washington and Lee Law Review, Vol. 66 [2009], Iss. 3, Art. 9

66 WASH. &LEE L. REV. 1127 (2009)

Wilson: Sex Play in Virtual Worlds

SEX PLAY IN VIRTUAL WORLDS

Figure 1. Possible Participants in Virtual Sex

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Washington and Lee Law Review, Vol. 66 [2009], Iss. 3, Art. 9

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74. See Virtual Sex in Second Life, Early Show, http://www.youtube.com/

Wilson: Sex Play in Virtual Worlds

C. The Inadequacy of ExternalFilters

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sentenced to fifteen years in prison for engaging in sexual relations with a

Wilson: Sex Play in Virtual Worlds

MySpace liable for publishing "online third-party-generated content. 9 6 The

96. Id.at 420.

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