sex in the metaverse

The metaverse chimera promises us a wonderful journey to a new dimension of sensations and forms of interaction at all levels, in particular, after the launch by Meta of the “Quest Pro” mixed reality glasses, which aim to popularize the metaverse. Undoubtedly, the metaverse, currently in its initial moments of evolution, will be the scene of a reality that we will end up normalizing in our lives, as happened with industrial machines in the 19th century, mechanical traction vehicles in the 20th century, and the internet. so far in the 21st century, something that very few were betting on when it appeared.

And as in any human environment, virtual or not, everything related to sex is a constant in relationships between people, but it is also an object of business and a source of conflict. In this way, the metaverse combined with virtual reality technologies (both software and specialized hardware, capable of developing the senses of touch and smell) aims to make virtual sex possible with other people through avatars or even , with artificial intelligence systems, which could recreate lovers, both fictional and based on real people who exist or existed, opening the possibility of having sexual relations with a deceased partner.

Also in the metaverse, everything related to sex is an object of business and a source of conflict

In this sense, the pornographic industry and the one dedicated to the manufacture, distribution and commercialization of sexual devices, are already focused on the “sextech” market, aware of the new possibilities that appear to operate with this new business model. (real-time hyper-reality sex experiences, NFT vibrators, sensor suits, virtual sex with celebrities, etc.). And it is that its importance in the global industrial fabric cannot be ignored, as it is the second most important in terms of business volume, only behind video games, and ahead of sectors as relevant as the cinematographic, pharmaceutical or liquor sale.

The other side of the coin is given by the problems that this can generate with the privacy and image rights of people, who, in any case, must give their express consent to be treated for these purposes, in accordance with the provisions in article 18-1 of the Constitution, Organic Law 1/1982, of May 5, on civil protection of the right to honor, personal and family privacy and one’s own image and the regulations on data protection established in the Organic Law 3/2018, of December 5, on the Protection of Personal Data and guarantee of digital rights (LOPDGDD) and Regulation (EU) 2016/679 of the European Parliament and of the Council, of April 27, 2016, regarding the protection of natural persons with regard to the processing of personal data and the free circulation of these data (GDPR).

But there is more, since the metaverse can give a new projection to some crimes, such as identity theft, sanctioned with a prison sentence of 6 months to 3 years by article 401 of the Penal Code; or “sexting” (dissemination of intimate videos without consent), which, despite the fact that it is more common than is thought, returned to the front pages with the incident suffered in June 2022 by Santi Millán, the famous presenter from the TV show “Got Talent”; and that can carry a prison sentence of 1 to 4 years and a fine of 12 to 24 months for the person who recorded the video (article 197-1 of the Penal Code), and a prison sentence of 3 months to 1 year or a fine of 6 to 12 months to whoever spread it (article 197-7 of the Criminal Code).

As for the sexual assaults, although, as reported, they would have already occurred on “Second live” and on “QuiVr” fifteen years ago, it was not until February 2022 that the first altercation of this type was made public in the metaverse, when ascertained by a 43-year-old British woman named Nina Jane Patel, that her avatar was the victim of a virtual gang rape on “Horizon Venues”, the beta version of Facebook’s metaverse (Meta). As a result of this, Meta adopted a series of measures, such as cutting the avatars from the waist down and giving them a childish appearance, or the establishment of minimum distances between avatars through the implementation of a three-dimensional bubble of 120 centimeters (“Personal Boundary” ).

Regarding the punishability of these behaviors, after the reform operated by Organic Law 10/2022, of September 6, on the comprehensive guarantee of sexual freedom in the Penal Code, the distinction between aggression and sexual abuse made by the repealed text, and in the new version of article 178-1, a prison sentence of 1 to 4 years is imposed on anyone who performs any act that violates the sexual freedom of another person without their consent. Consequently, sexual assault does not require carnal access, which is confirmed by the fact that article 179 distinguishes that, when sexual assault consists of vaginal, anal or oral carnal access, the person responsible will be punished as guilty of rape with the prison sentence of 4 to 12 years.

And for these purposes, it is important to keep in mind the recent ruling 547/2022 of the Criminal Chamber of the Supreme Court of June 2, 2022, which, resolving the question of how the penalty provided for in article 48- 1 of the penal code, consisting of the deprivation of the right to “go to the place where the crime was committed”, has considered that it is necessary to expand the traditional concept of “place” as a physical, geographical space and perfectly perceptible by the senses, so that, in the case of crimes committed in cyberspace, it will be the virtual space in which it was committed, evolving from the term “place of the crime” to “dissemination spaces”. This opens the possibility of applying this concept to the entire cyberspace: the internet, social networks, instant messaging systems, and also the metaverse.

By Javier López, partner of Écija