The following article contains a discussion of topics that some may find upsetting.
There is no universal definition of rape. In the US, the law varies from state to state, but the FBI and Title 10 of the United States Uniform Code of Military Justice both reflect a common standard. For rape to occur, there needs to be penetration of a person's anus or genitals (the FBI includes "mouth" in its definition). This penetration can either be with the attacker's body or with an object.
It's crucial to prove that the act took place without the consent of the victims. That can be because they did not consent, their consent was obtained under duress or they were incapable of giving consent. In addition, it's not legal to "trick" a person into consenting by withholding information or actively deceiving them.
We are slowly approaching a world in which people can be intimate without being physically close to one another. The internet allows us to have sex with people situated on the opposite side of the world. To bridge that distance, we use web-connected devices like masturbation sleeves and vibrators.
What would the legal implications be if, say, skilled and malicious hackers were able to hijack one of these devices? On one hand, they will have gained control of an object that is used to penetrate, and therefore are potentially responsible for it. On the other, the device's owner is likely to have overall control of the hardware and, we assume, consents to its use.
"That would, I suppose, be sexual assault," says robot ethicist Dr. Kate Devlin, a senior lecturer at Goldsmiths, University of London. Writer and broadcaster Girl on the Net agrees, saying that "controlling someone's sex toy without their consent is sexual assault." She adds that "you're doing something that someone has not fully consented to, at least by not knowing who you are."
But it may be the case that US law, as of right now, doesn't support these assertions about what constitutes online sexual assault. Much like the definition of rape, the country has a patchwork of laws that cover the crime, many of which require unwanted sexual touching. For instance, Title 18 of the US Code states that "sexual contact" must be made -- but where is it in our example?
Think about the hacking of a sex toy: The offense is electronic, but the harm it causes is human.
A functional criminal justice system creates a series of boxes into which you can categorize offenses and their punishments. We do this in order to avoid individuals being punished differently for committing a materially similar crime. But when these laws were written, there was no idea of what the future would hold. Think about the hacking of a sex toy: The offense is electronic, but the harm it causes is human. There are other crimes that, as of right now, are enabled and magnified by the internet yet aren't yet codified in statute.
Another example: In 2011, a Los Angeles court sentenced California resident Luis Mijangos to six years in federal prison. Mijangos was found to have hacked into dozens of computers, many of which were owned by underage girls. Mijangos appropriated nude images and recorded their keystrokes, webcam feeds and intimate voice conversations. He then threatened to publish those files to the girls' close friends and family unless they provided more images to him.
Those threats weren't idle. When one of his victims attempted to raise the alarm through a friend, Mijangos knew. In revenge, he posted nude images of her to her MySpace page for all to see. In court, District Judge George H. King said that Mijangos had engaged in "psychological warfare" and "cyberterrorism." His victims say they have been traumatized and terrorized, with many exhibiting signs of severe stress.
But the crime that Mijangos committed -- covered under the umbrella of "online sextortion" -- doesn't exist in either federal or state law. It's an issue that was highlighted by the think tank the Brookings Institution. It published a paper early last year explaining how digital sextortion was not anticipated by the law.
Like online sexual assault, digital sextortion is a sexual crime, and as such, getting accurate data on the issue is a problem. Brookings researchers admitted that they struggled to find cases for analysis, thanks to issues with underreporting. America's largest anti-sexual-violence organization, RAINN, believes that two out of every three instances of sexual violence are not reported.
"These cases ... produce wild, and in in our judgment indefensible, disparities in sentencing."
It should be noted that in instances involving crimes against minors, stringent child-pornography laws are in place. But, as the Brookings paper outlines, adult sextortion crimes are prosecuted under a "hodgepodge of state and federal laws," a Wild West of lawmaking that results in "indefensible disparities in sentencing." Mijangos, for instance, was given a "dramatically lighter sentence" than he would have received for a physical attack on a "fraction of the people" he victimized. Another perpetrator, Joseph Simone, was sentenced to just three years in jail despite "victimizing up to 22 young boys."
The Brookings paper points out that predators can take advantage of this inconsistency to target their attacks. Because there is such a wide disparity in sentencing, it's possible to seek out victims who are based in states with weaker laws. A well-read criminal could direct attention toward victims in Rhode Island, where punishments are soft, and avoid Maryland, where penalties are far harsher.
More generally, states don't seem to be able to join up their thinking on how to sentence connected crimes -- yet. In New York state, for instance, hacking someone else's computer is a Class E nonviolent felony that carries a sentence between 16 months and four years on probation. Sexual assault, meanwhile, is a Class B violent felony that carries a custodial sentence of anything up to 25 years.
If we are to avoid similar controversies in the future, it is likely that we will need to create a law that covers this type of crime. The Brookings paper asserts that there needs to be a federal sextortion law that will cover threats of online sexual exploitation. Similarly, it seems clear that we need legislation that will cover instances of online sexual assault. Thankfully, we may be able to draw inspiration from a good example on the opposite side of the pond.
Neil Brown is an English lawyer and co-founder of decoded:Legal, a law firm with a specific interest in technology law. He says a clause in the Sexual Offenses Act 2003 could be the magic bullet. "When you look at the act," he says, "you've got this quite interesting provision at Section 62." In it, people are guilty of a sexual offense if they commit any offense with the intent to commit a sexual offense.
"There is a lack of current legislation to deal with online sexual issues."
"Let's say that it was an internet-connected vibrator," says Brown, and someone hacked the device "with the intent of committing either sexual assault or assault by penetration." The crime is likely to fall "both under the computer-misuse framework and the provisions of Section 62." This hybrid offense would also aid sentencing; Brown says that a computer-misuse crime has a maximum "of up to two years in prison. "But," Brown adds, "if you commit a computer-misuse offense with an intent to commit a sexual offense, then that can go up to 10 years."
California attorney Michael Fattorosi, who has expertise in adult law, agrees about the need for new laws to cover such a crime. "There is a lack of current legislation to deal with online sexual issues," he said, "whether it be rape, revenge porn or sexual assault." The issue will continue to exist "until more legislators around the US wake up and understand current technology," he said.