August 9th, 2007 by Benjamin Duranske
The Second Life Herald has an article up that beat me to some analysis I’ve been meaning to get to on the application of obscenity laws to virtual worlds. It’s been a topic of discussion recently because the recent gambling ban in Second Life raised questions about Linden Lab’s approach to the seedier side of the world. I analyze the issue a little differently than the SLH writer, ‘Jessica Holyoke,’ but we come to the same conclusion: virtual escorting appears to be 100% legal.
‘Holyoke,’ puts forth a few arguments as to why virtual sex work would probably be found to be legal, which is a reasonable approach, but one that I think takes the debate the wrong direction. It’s simpler than that. Like all criminal law questions, the act is legal if nobody has made it illegal. I’m sure there’s nothing on the books specific to this, so the question is: what current laws could prohibit virtual escort services?
Phone sex laws could cover virtual escort work, especially if voice is involved, but the only law I’ve been able to find is narrowly focused on telephone communication. What about laws against real life prostitution? Well, they typically cover only actual acts of intercourse involving real human bodies, and they’re pretty specific in their definitions. How about state obscenity laws? California (where the servers are) has a fairly typical obscenity law. You can find it here. Though it would depend on exactly what was happening between the avatars involved, I’d suspect that most acts would be just fine. The California law prohibits material that “depicts or describes sexual conduct in a patently offensive way.” So I’d argue that as long as the avatars on screen are engaged in nothing that is more “patently offensive” that what appears in videos that are sold legally in California, the avatar’s “act” isn’t prohibited in California.
This isn’t the end of the question — I suspect that Mississippi’s laws are rather more restrictive than California’s, for example, and users in other countries will want to check their local laws too, but my initial, summary take? The burden in this argument falls on those that want to say virtual sex work is illegal, and I just don’t see how the laws I’ve encountered so far could reasonably be found to prohibit it. I could well be overlooking specific state laws, and am entirely unfamiliar with obscenity laws outside of the U.S., so I invite readers who are familiar with them to comment. But so far? Nothing has convinced me there is anything illegal happening here.
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