Social and Legal Aspects on the Topic of Virtual Rape
Social and Legal Aspects on the Topic of Virtual Rape
In this research, I will seek to examine the full range of social and legal aspects in the topics of virtual rape – the social influences as a result of the difference between physical rape and virtual rape and consequently whether it is more correct to include the topic of “virtual rape” in the framework of the Sexual Harassment Prevention Law or whether it was correct to amend article 345 of the Penal Law.
In addition, I will examine the following questions.
1. What is the definition of the term virtual rape?
2. What are the difference between offenses that should be included in the framework of sexual harassment in the Internet space and offenses that should be included in the framework of the offense of rape in the Penal Law?
3. What is the correct way of integrating the term virtual rape in frameworks of common law, and what is the correct category for crimes of this type?
4. What is the issue of regulation and arrangement in practice under criminal law, assuming that the existing protections are not enough?
5. What are the issues in the framework of virtual rape that occurs in the setting of a game, including the obligation to report, and does the obligation fall on the users and if not who?
6. What laws or regulations exist and/or can be amended so as to enforce the issues of virtual rape?
The term “virtual rape” describes a wide range of scenarios and events, which are different from the act of rape in which the attacker and the victim are physically adjacent to one other.
Although rape that occurs in the manner known since forever cannot be, under any circumstances, taken lightly, the law must encompass all the events that maintain the hard core of the offense of rape and its fundamental elements. Therefore, in this article I will examine the full range of the issues that address the topic, as well as the question of whether it is more correct to include the topic of “virtual rape” in the framework of the Penal Law (article 345, which defines what rape is) and not in the framework of the Sexual Harassment Prevention Law.
In the year 2014 Amendment Number 10 of the Sexual Harassment Prevention Law was legislated, at the initiative of Knesset Member Yifat Kariv from the Yesh Atid Party. The amendment to the law determines that the dissemination of a photograph, film, or recording of a person, which focuses on his sexuality, under circumstances in which the publicization may humiliate or abase the person and the publicization is carried out without the person’s consent, will be considered sexual harassment, for which there is up to five years of imprisonment.
In this article, as aforementioned, I will review the main reasons for which this act, the dissemination or publicization of sexual pictures of a person, should be considered virtual rape and not sexual harassment. These acts, therefore, need to be come under article 345 of the Penal Law.
In chapter 8 of my book Digital Evidence, in Practice, between Law and Technology, which was published in an updated edition in the year 2015, I wrote that the Internet is indeed a global network of computers, which connects many different networks of computers and links between billions of computers around the world. The tremendous amount of information stored in it through Internet pages and commercial and content websites, alongside the accessibility of the information from anywhere in the world and at any hour, creates another “state” that does not have territorial borders.
In addition, the Internet space provides new opportunities in the business and social dimension for many companies and people. Alongside these opportunities, the Internet brings with it also different types of threats, for instance, electronic fraud, computer crimes, crimes in cyberspace, and so on.
Some maintain that in its present form the Internet realizes the vision of the global village. However, conversely there is the approach that maintains that the Internet is still far from this, because of the material and technological gaps between the countries in the world that prevent the development of globalization.
These are technological threats, alongside complex legal issues that inspire concern on topics of the defense of privacy, fair trade, protection of copyrights, property and ownership issues, jurisdiction, and cross-border transactions, alongside issues of computer crime, sovereignty, and others.
In actuality, our world is a technology-driven world, a world of machines, computers, computer systems, and different types of communication networks. The uniqueness of this world is the connection between hardware and software, which communicates with the person in his language.
This world is a melting pot of social worlds, alongside diverse cultures, found in a state of constant development, acting “around the clock”. This is a world called the virtual world, a world without geographic borders, which is created by people.
Very quickly the criminal world identified the potential innate in the Internet. Already in the year 1984 William Gibson in his novel Neuromancer defined the term “cyberspace” and referred to the cyberspace of crime. In his book, he presented the story of a hacker who would break into databases and steal data for payment. Gibson described the cyberspace environment as a three-dimensional virtual environment that is created by the computer network, through the use of many active applications at one point in time. In his words, “cyberspace” is a virtual structure derived from the physical environment, which is created by the computer that presents an abstract data structure as input for the actions that the operator carries out. While Gibson in his book analyzed the environment of the hacker who broke into these computer networks so as to steal information, in actuality what is written in his book holds for many legal issues in our time as well, such as the issue of anonymity on the Internet, harm to privacy, and harm to the person’s good name.
On the issue of the first use in English of the word “cyber”, which was taken from the Greek word kubernetes, it is in essence the science of automatic communication, machine control systems that create virtual “life”. This term was first presented by the American mathematician Norbert Wiener in his book Cybernetics, which was published in the year 1948.
Already at that time Wiener understood that the “cyber” is a virtual medium, without geographic borders, without mass and/or gravity. In this environment, the laws of Newton and Einstein do not apply; cyberspace represents connected areas that are created by computers, in combination with other computer systems and/or different types of communication networks.
Returning to our issue, for more than two decades we have witnessed as a society the technological development of the Internet, which enables the transfer of information and communication from a distance. The Internet constitutes a platform for interaction among people. In it communities in the form of social networks are created, and multi-participant computer games are created in which characters meet, exchange messages, and in essence hold almost every type of virtual interaction. However, as a part of the extensive use of the social networks and the development of the virtual space, the users are more exposed to virtual sexual injuries – which are called virtual rape.
Rape in its traditional definition is a physical action of sex under coercion and against the victim’s will. This is one of the most severe offenses in the book of laws, in social perception, and from a moral view. With the development of the Internet, many human interactions have shifted to the online space, and unfortunately this offense also occurs in the virtual space at a steadily increasing frequency. Virtual rape can be expressed in a variety of ways and forms and at different intensities, such as undesired exposure to sexual contents, propositions, and indecent conversation, serial “online harassment” in the form of sending unwanted messages or mails, virtual conversations with a sexual tone, sending sexual pictures, video conversations, filming of the sex act and dissemination of photographs or films with the sexual content of another person around the net without his permission. The most severe cases are cases in which the virtual attacker holds sexual photographs or films of the victim, threatens to disseminate them, and thus blackmails the victim sexually over time.
The offense of virtual rape on the Internet and the social networks has recently been accorded considerable attention in the public discourse, primarily with regard to young people who, lacking the awareness of privacy and risks in the high self-exposure, have increasing vulnerability to sexual injury.
As I understand, the legislature must fight against this harmful phenomenon. But the attempt to fight against the phenomenon brings up a number of main difficulties, because of the occurrence of the offense in the virtual space.
The constellation of crimes that occur in the virtual space includes crimes of violence such as greed, revenge, curiosity, publicity and fame in society, adventurousness, power, and as aforementioned sex offenses. In the issue of sexual offenses, this is online violence that is today on the rise – controversial antisocial behavior called largely “virtual rape”, namely an act of sexual attack against another in a virtual community and/or directly, through the use of technological means, in a distant manner that does not allow physical contact of the victim.
The in-depth study of the issue indicates that victims of online rape experience emotional distress, including harm, and a feeling of infinite persecution, since this is an ongoing offense that accompanies the rape victim for many years, a fact that significantly to entirely postpones the possibility of self-rehabilitation the day after the offense was committed.
I will seek to clarify that the use of the term “virtual rape” emphasizes the rapist’s coercion of the rape victim in ways of threats, intimidation, imposition of authority, and as aforementioned coercion that force the rape victim to perform herself these and other sexual acts, including the ongoing offense of the dissemination of films and photographs, as derived from the carrying out of the offense in general. In other words, the term “virtual rape” does not necessarily note the action (act) but the Internet violence that is exerted against the rape victim – online activities with the potential to harm another through the use of a communication device and/or online Internet technology or not online technology.
I will add that such activities by definition are violence experienced on the physical level and on the non-physical level and that the dimensions of the difficult feeling often cause the other person’s distress in the physical sense, a fact that links between the two.
“After the case of rape, the level of emotions that flood the victim is tremendous. It moves among confusion, fear, powerlessness, guilt, shame, anger, humiliation, and depression. The distress that is caused as a result of rape is not temporary distress that vanishes in a certain period of time. The case of the rape itself produces high immediate stress, which steadily decreases after a number of months. But fears, anxieties, low self-esteem, and problems with sexual functioning continue also for years after the rape … the assessment is that one-quarter of all the women who were raped continue to display negative mental indications even many years later, including depression, suicide attempts, tendency to use alcohol and drugs, over-eating, obsessive compulsive disorder, post-traumatic disorder, different anxiety disorders, memory problems, and problems with the creation of systems of social, romantic, or sexual relationships. The influence of the case of rape is a difficult and painful mental influence, which does not leave the victim for a long period of time, and even if it “declines”, it never is forgotten.
… Paradoxically, most women who have experienced rape blame themselves for the incident. An inner voice tells them that they are stupid, they acted recklessly, perhaps they did not broadcast the right things, they did not stand firm enough on their “no”, and so on. The issue of the “guilt” for the purpose of this discussion does not address the legal aspect (according to estimates only about 10% of the cases of sexual attack in general reach the court) but psychological processes.” (Friedman, 2008).
From another angle, from the search on the social networks and dating sites, we see another line of thinking that links to the issue of virtual rape – namely, events that by nature are more than online sexual harassment and therefore should be addressed in terms of rape for all purposes. From another angle, it is possible to assert that the fact that these incidents occur in the virtual environment reduce significantly the intensity of the feeling for the victim and therefore the victims can separate themselves from the very fact of the violence.
On this matter, and in light of the feeling of endless persecution, and in light of the fact that the victim’s intimate pictures are disseminated on the “darknet”, namely networks where it is doubtful that it is possible to prevent the continuation of the dissemination, the sense of injury is intensified sevenfold, alongside the fact that this is ongoing rape derived from the virtual rape.
The following paragraphs present a short review of networks of this type. The networks known in Israel for this issue are the Tellgrass network and its “heir” the Gatewide network. In essence this is an abstract term, the result of the manner of use of the Internet that itself has no evil and/or basis for the carrying out of an offense. To put it simply, the Darknet is the technological infrastructure that allows certain groups to carry out different types of offenses, through the use of encryption technologies and a heavy cover of anonymity.
This is the use of information security technologies for the purpose of the commission of serious crimes of different types, such as pedophilia, organ trafficking, drug trafficking, trafficking in abducted women, and information transfer for terrorist purposes and even the carrying out of terrorist attacks, which we will address in the continuation, in the subchapter “cybernetic terrorism”.
The Darknet serves as a focus of communication between underground political groups and as a focus of illegal activity of different types. In recent years, the wrongdoers have learned that the various law enforcement agencies are pursuing them and therefore and in light of the manifest technological development there is a consistent rise in the number of networks on the Darknet; today there are many thousands of such networks, and I will talk about this more in the continuation.
In actuality, the Darknet is a term from the field of computer communication, with the use of the Internet to the cybernetic space, which enables the sharing of fields for “closed groups of friends”. In other words, the transfer of data is undertaken only among the friends in the group, through the use of nonstandard data communication protocols.
The Darknet is not a social network in the sense known by the public at large. The networks on the Darknet are completely anonymous. The users’ IP addresses are replaced randomly, and therefore they are not exposed. In other words, the users on these networks are aware of government surveillance and hence do everything to blur their location and identity.
In essence, this is a communication protocol in which the traffic is private, encrypted; in other words, it is difficult to trace the transfer of the data. The receiving server or computer makes certain to thoroughly erase the sender’s details, through the use of a random IP address from one of the countries in the world.
I will further note that the transferred data is not accessible by or exposed to the search engines. In other words, it is not possible to find this data in search engines such as Google, Yahoo, and the like. To put it in simple words, the transferred information is not accessible to “outside” users.
The main components that enable the absolute secrecy of the Darknet, in which the user can remain safely anonymous, are as follows.
The encryption of the communication protocol means that the only way to enter the network of friends is through a unique, monovalent key or through a dedicated software program, available for the friends, which self-destructs immediately at the end of the use. I will further note, as aforementioned, that the network is not exposed to all, namely, it is invisible for the innocent person searching on the Internet.
For example, when one of the group members is interested in trafficking in human organs or in drugs, in encrypted ways, the seller informs, through the Internet, a number of known and identified traffickers, and they and only they receive the possibility of access to the data server. To state it simply, only they receive the password that enables the viewing of the merchandise offered for sale.
I will further note that the members in the group preserve a heavy shroud of anonymity and that it is not possible to locate them. The traffic itself is impossible to monitor, namely, it is not possible to know who the Internet Service Provider is, it is difficult and even possible to carry out wiretaps, and the pieces of information are conveyed on the Internet in small parts so that only a system of servers on the other side can put together the “puzzle”. If this is not enough, then the pieces of information conveyed on the Internet are encrypted under a “heavy” cover of obscuration and in a unique way, which is saved each time anew.
I will note that this is not a negligible number of cases of pedophilia or drug trafficking, but rather difficult cases of films that document incidents of rape, sodomy, rape of minors, even youngsters two years old, and other atrocities that the human mind has difficulty comprehending.
At the end of the process, on the part of these crime groups, the most important thing is the payment. The client orders a service, whether drugs, viewing a pedophilia film, or any other horrific act of those mentioned above, and is obliged to pay. The means of payment are similar to cash payment; in other words, the transaction is undocumented.
The ways in which the payment occurs are as follows: the crime groups created a virtual digital currency, which the user buys for cash, whether by sending money or transferring it in some manner. In return for the payment, the client receives a voucher, with a code that enables entrance to the designated server (Darknet) on which the client can view or download the films he has purchased.
Another means of payment is the virtual currency called Bitcoin, which can be purchased online at a virtual bank, which coins and offers the anonymous currency to any person in cyberspace. Another possibility of payment is to purchase a PayPal account of a normative person and through it to carry out bank transfers comparable to regular normative behavior. Another way is to hack an account for a user, namely the user receives the identity of the innocent citizen. In this way, the wrongdoer has an account with a positive balance and can use it, including using credit cards.
Darknet users tend to also make use of Internet websites with a normative look, for instance the global sales site eBay. The network members direct the attention of the group members to a certain product on the sales website that serves as a codename for a drug or another product they are interested in selling. The user views the product, pays for it using virtual currency, Bitcoin, and the delivery comes to his home using UPS or DHL. In this way, weapons, information on assembling explosive devices, plans for terrorist attacks, and so on are sold.
Consequently, and returning to the issue of virtual rape, as known, the dispute over the definition between “virtual rape” and the definition of the offense as sexual harassment online has recently been a subject of international attention. Already in the year 2005, some people argued that the lack of clear legal boundaries, active authorities and means of enforcement, alongside the lack of significant sanctions encourage people with criminal intent to commit offenses.
In actuality, the analysis of the article examines the legal meanings as derived from the sexual anti-social and social behavior alongside the examination of the lack of the duty to report in the Internet space and as a part of the exposure to these pictures and films. Needless to say that on the issue of the question of the awareness of the user who is exposed to these films and pictures, I will note that in most cases the use of these networks displays ahead of time the awareness that it is possible that this is an offense and therefore this question in most cases is fundamentally void.
Despite what was said, I will note that the obligation of the judicial authority, like the enforcement authority, is to examine this question thoroughly, in every incident, and subjectively according to the user’s behavior. In actuality and in light of the fact that the virtual rape is not anchored in law and lacking the duty to report that derives from this, the real concern is that incidents of this type will spread in the virtual space, until they become a real trend in some of the virtual communities in which the individual’s experience may be more important than the collective experience.
Another angle of the issue of anonymity online that is not possible in the real world is anonymous/fictive profiles, in which there are changes in characteristics such as the color of the eyes, the color of the skin, height, and weight, and/or a fictive picture. This fact causes considerable difficulty in the exposure of the attacker’s identity. In other words, as known, in the virtual space a person can achieve perfect anonymity or perfect imagined anonymity; the meaning is that a man can be a woman, a child can be an adult, and a foreigner can be a native, and the reverse is also true.
Needless to say that, as known, using appropriate technological expertise, the attacker can blur his tracks and thus it is doubtful that he can be caught for the actions attributed to him.
To focus the question, the offense of rape is defined in article 345(a)(1) of the Penal Law as the sexual relations with a woman without her free consent. Needless to say, there are additional definitions of the offense of rape, such as sexual relations with her consent that was achieved fraudulently and/or consensual sexual relations with a minor who is not yet fourteen.
This is an active deed of the offender, namely, the sexual relations: the extension of the definition to causing rape appears in article 350 of the law that essentially seeks to broaden the scope for this offense – as well as other sex offenses. The article determines that it does not matter if the “doer” “did the action or caused the action to be done to him or to another person” and that the explanatory statements for the law – amendment 2003, the article extends the criminal liability, as well as enables the prosecution of a person who in actuality “did not do an act to another but caused it to be done … the act of the offense.”
The goal of the legislature was to extend the scope of the sex offenses also to a complicated environment, in which the offender does not physically carry out the deed on the victim of the offense but causes the victim to do the sexual act on the offender himself or another person.
Another essential change arrived in the year 2014, in Criminal Appeal Case 14/7577 John Doe v. the State of Israel, which discussed an act of sodomy committed on another person. The High Court interpreted the issue and determined that it is possible to convict the accused for sexual acts that he “caused the victim to perform on his own body”.
The turning point in the understanding of this issue first came in the Yosef Sabach Incident (Serious Criminal Case (Central District) 11-12-40230 the State of Israel v. Yosef Sabach) in which the State Attorney's Office first filed charges of rape offenses and indecent acts on the Internet.
This case was widely publicized and has invaluable legal significance. In this case, a man in his fifties pretended to be a fifteen year old youth and using different emotional manipulations forced tens of minor girls to send him photographs and films of a sexual nature.
The uniqueness of this case derives from the way in which the accuser decided to deal with the manner of harm, namely a way that had nothing like it in the book of laws, as well as in criminal law in Israel. The indictment charged Mr. Sabah with rape for crimes committed in the virtual space.
In October 2016 Dr. Asaf Harduf published a critical article in the academic journal Alei Mishpat, titled “Rape from a Distance or Distance from Rape? On an Indifferent Legislature, on a Creative Prosecution, and on the Laws of Rape, Their Goals and Their Limitations”. In the article Dr. Harduf discussed sex offenses in the virtual space and the interpretation that the prosecutor’s office gives to article 350 of the law and the fact that for a number of years the prosecutor’s office has created hybridization between article 350 and offenses of rape and indecent acts and convicts accused people for these offenses on the basis of plea bargains and without bringing the issue to the test in the court – in full depth.
As I understand it, I will note that the fact that the courts convict the accused without examining the foundations of the offense is very troubling, and this is in light of the fact that these are offenses of the type of a continuous offense, alongside the intensity of the harm, and the difference between the psychological pressure exerted on the rape victim and that the rape causes her to commit his acts through the exploitation of the manipulative strengths against the rape victim.
From the amendment to the Sexual Harassment Prevention Law, in article 3(a), after paragraph 5 there is 5(a), which states: “The publicization of a photograph, film, or recording of a person, which focuses on his sexuality, under circumstances in which the publicization may humiliate or shame the person and his consent to the publicization was not given and however in criminal or civil law according to this paragraph this will be a good defense if in the publicization there is a public interest that justifies it in the circumstances and as long as it is not false or if the publicization is done randomly or innocently.” On this issue, a photograph, including the editing or integration of each one of them in a way that it is possible to identify in it, is a film or recording of the person. As I understand it, this is a failed attempt of the legislature that apparently sought to rapidly pass a law proposal and without examining in-depth the implications and the depth of the harm as a result of this offense.
Virtual rape is rape of another type, which in essence is a crime that many factors refuse to acknowledge, namely, the change of the structure of history unavoidably that will “pull” the entire human race into the social dimension exactly as it did following the throwing of the first stone that caused the death of another person.
To understand these statements, it is necessary to learn also from the events that are held as a part of the computer games and the Internet in which offenses of violence of the type of rape are documented, including the examination of the social implications, as well as the legitimization of the commission of the offense in a seemingly intangible environment.
One more sentence remains in the framework of “virtual games”: namely because virtual rape cases, like offline rape, are kept secret, the goal is to bring this issue into the awareness, and thus to cause the awareness of the existence of the phenomenon of virtual assault.
Before we examine the issue of virtual rape in-depth, we will address the distinction between the cyberspace and our physical world. In other words, and from an overall perspective, in-depth thinking is required – “out of the box” – so as to cope with the entirety of the issues arising from virtual rape.
Cyberspace is an abstract digital medium, namely it is not a part of our physical world. It is an unlimited world, changing constantly in its traits and characteristics. It is an interactive world that cannot be addressed as a photographed version of a geographic space, like the version that exists in films such as “The Matrix”.
Unlike our static physical world, the cybernetic space is dynamic, undefined, and constantly changing, connecting millions of computers that are in part anonymous. In our human mind, it is comparable to a ghost; the “ghost” creates a virtual digital life environment that connects our material world through the use of a virtual continuum to the infinite world.
In essence, the virtual space is an extension of our physical world, a world that is controlled by legal entities subordinate to laws, rules, and regulations. Consequently, the following question is asked. Does this environment need to be arranged in the framework of laws and regulations?
In my opinion, the answer is of course yes. Since this environment does not exist “in isolation”, namely it is connected in a complicated manner to the material world found under the law, rules, and regulations, the virtual space also must be regulated.
This issue raises another question. How should rules and regulations that are territorial by nature be implemented for the virtual environment, which by nature is not such an environment but is an environment where the variables are dynamic, infinite, and intangible?
The legal arrangement of the cybernetic space means the regulation of the interests of modern society alongside the preservation of rules and regulations, through their adjustment and implementation on the basis of environmental variables of the virtual environment. My statements are based on the understanding that in the end the wrongdoer is the person and not the machine, namely the computers in particular and the Internet in general are as aforementioned the means and not the end. From a different perspective, the victim can be both the person and the machine, which are harmed by the same hack and/or sabotage. Hence, it is necessary to differentiate among the types of harm: moral, financial, and human harm, when the three need to be examined through both the property and the criminal reflections.
In other words, the computer can be both victim and attacker. Namely, the computer can be the intruder and at the same time, the same computer can be hacked. This is different from our material world, in which a knife or a gun will be considered an instrument that is used for attacking but will never be thought to be a victim.
This fact makes the virtual space an interesting and very complex environment in the eyes of the legislatures around the world. According to the legislatures, it is possible to enact a law for legal entities in the virtual environment and it is not possible to enact a law for the machine, namely, it is possible to regulate the person but not the machine.
Hence, the following question is asked. Is it possible to implement a law for the machine, that is, for the world of computing and the Internet as a whole, based on the assumption that if the law is based on legal entities then it is possible also to implement it on the machine as a part of our material world? This issue will be examined in-depth in the continuation.
Research Methods and General Background
The analysis of the data focused on the elements of the problem of virtual rape and the definitions, outlooks, philosophical perceptions that explain the meaning of things, including the separation between the physical space and the virtual space, and the inferences from it. Needless to say, in the framework of my research, as well as in the writing of this article, I was exposed to a large number of other offenses, such as other types of violence on the Internet, and the offense of virtual rape, under the existing circumstances to my understanding is included as a phenomenon that is among the most worrisome phenomena.
The objective of this chapter, as well as of my research as a whole, is to detail the methods used in the research, which included hundreds of hours of learning, legal analysis of past events, and questions I asked attorneys and jurists in Israel, to understand and examine their view of the topic, alongside the look at documented events and in-depth understanding of the structure of the Internet as a whole.
The first part of the legal research examined, as aforementioned, past events, including the analysis of the structure of the Internet as a whole, and described how cases were revealed. In addition, in the framework of the research I engaged in the issues of virtual rape in the framework of online games, and the technology that under certain circumstances enables the occurrence of events of this type – in the framework of the game.
From this point, I entered the intricacies of legal research, analysis of existing law, including the explanatory words, while learning about what is done in the United States, in light of the fact that the structure of the law in the United States is different from the common law in England, Europe, and Israel.
In addition, I engaged a bit in the framework of the issue of private arrangement, the evaluation of the game agreement, social conventions, regulations and procedures, including different documents that were on my table.
Research and Legal Analysis of the Data
In the framework of the legal research, I made use of central legal sources in Israel and in the United States, the law, the ruling, and articles and legal literature. As a part of the achievement of the legal sources documented in the chapter of the sources, use was made of directing literature, Israeli legal rulings, including material literature, and articles that are on the Internet. As a part of the research, use was made of the search for expressions from combinations of terms “sexual”, “assault”, “rape”, “computerized space”, “simulated reality”, “simulated community”, “harassment”, and “sexual harassment”, “virtual rape”, and so on, with combination of searches in Hebrew and in English, and these constituted the definition for the keywords of the research.
Needless to say that in light of the fact that there is no disputing that this is an offense – hence, the identification of the law that is behind the decisions of the court is considered frequently a task that is difficult to perform. In my research study, I will attempt to instill content and interpret for those who engage in the work and to bring new look on the topic to the world of law as a whole.
On this matter, more than once it was written that the doctrines of precedent prevail and guide the implementation of the law and rulings, through mutual reciprocity, and thus provide uniformity and consistency in the judicial system, namely academics, judges, and attorneys learn from this and on the basis of what was written and according to human advancement in general use is made so as to provide an analogous interpretation of legal issues that are not decided and/or not interpreted in law and ruling.
As known, legal precedents, with emphasis on the issues decided before the High Court are defined as guidelines for additional legal proceedings. But unfortunately, these are issues I did not find – certainly not in the framework of Israeli law.
On the issue of virtual rape in the framework of computer games, in addition to carrying out an analysis of legal data, including analysis of law, rulings, and provisions and so as to examine the issue of the likelihood of the events that occur in general, with emphasis on the issue of virtual rape in virtual communities, this thesis will take into account also the virtual rape that occurs in virtual communities, in light of the fact that the game is designed according to real life and/or events that under certain circumstances can occur also without the offense of rape. This is with the analysis of the understanding that the human protections are weakened in light of the fact that this is a virtual environment, and thus the personal fear, as well as the alertness, declines, a fact that can create a situation in which the intensity of the harm is sevenfold.
What Is Virtual Rape and Why in My Opinion It Is Necessary to Understand that Virtual Rape Is Real Rape and not Sexual Harassment
According to the proposal for the Sexual Harassment Prevention Law (Amendment 9, 10 respectively) (publicization of a photograph, film, or recording focusing on the person’s sexuality), namely “The publicization of a photograph, film, or recording of a person, which focuses on his sexuality, under circumstances in which the publicization may humiliate or shame the person and his consent to the publicization was not given and however in criminal or civil law according to this paragraph this will be a good defense if in the publicization there is a public interest that justifies it in the circumstances and as long as it is not false …”
According to this and as I understand it, virtual rape occurs in two types of cases. The first case is when a person forces his victim from a distance to perform on himself sexual acts that reach the point of rape had they been performed physically on another person. The attacker does this through the deployment of psychological force, including threats and/or blackmail, when he is not physically present near to the victim but observes the actions through the Internet, “live” or by recording a film or sending photographs, for the purpose of sexual gratification. In this case, the sexual intercourse in actuality occurs, and there is no doubt that it meets the definition of the offense of rape already today. In addition, there may occur under this type of event acts of sodomy and other indecent acts.
Another possibility is like the law proposal, when the attacker has obtained (whether through the hacking into the victim’s computer or telephone or another way), pictures or films of a sexual nature, in which the victim appears, and disseminates the contents publicly, with or without a preliminary threat or blackmail.
Needless to say that this offense is a continuous offense, since this action can humiliate and shame the victim and exploit the victim’s weakness against the power the attacker has, which is built into this type of situation. This action can force upon the victim sexual interaction with other people, without the victim choosing this and without the victim having the fair ability to object.
In actuality, the victim is denied the natural right to privacy of her body and sexuality. In addition, the freedom of choice, which is so basic according to laws and norms of her partners in sexual relations, is taken from the victim. Moreover, in many cases the victim does not know who watched her or who will watch her in the future in the contents and like any other virtual content this is not individuals and not a group but large communities. Regarding all these viewers, the victim does not have any control of the way in which each one of them will make personal use of the photographs of her. The victim becomes unwillingly a sexual object for unlimited mass use.
Difficulties in the Enforcement of Offenses in the Virtual Space
Before the examination of the normative frameworks and ways of legislation suitable for dealing with the phenomenon, we must examine the question in a broader legal-social perspective. Is it possible at all to deal with this phenomenon and to enforce it under the existing normative framework?
The existing laws present the foundations of the offense and legal proceedings intended for coping in the world of reality, and their application to the virtual space raises many difficulties that encompass the world of law and are not unique only to sexual offenses and rape.
The era of virtual communication is foreign to the traditional legal system, and it obligates the legal system to undergo a re-examination of perceptions and concepts. This has examples in almost every area of the law. In the field of penal law and tort law, new issues arise pertaining to unlawful activity through the computer. The computer era creates the invasion of the person’s privacy that is not addressed adequately by existing legislation, and it is necessary to change legal concepts such as “asset”, “contract”, “publicization”, “store”, and so on, so that they will also be commensurate with the virtual world. Furthermore, it is difficult to maintain copyright and protect it on the Internet.
Hence, questions arise about the territorial application of the law and jurisdiction regarding offenses that are carried out in the Internet space. Even in the field of contract law there are questions such as ‘when exactly is the date’ and ‘what is exactly the place where the electronic contract is made’.
In our time, there is a lively legal discussion regarding the relationship between the existing law and the rapid technological changes in society – and as a part of this discussion the following question arises: how can the central law that is built on a completely different world deal with the virtual space?
The topic of the application of the existing law on the virtual space is a topic that is discussed in rulings in different contexts. Despite the difficulties, the trend of the Court is that the Internet is never disconnected from the real world on the level of the applicability of the law but is related to it closely.
Therefore, offenses carried out on the Internet should not be addressed as if their enforcement requires special and different legislation, but this is a situation in which the existing legislation is enforced and tailored to the innovating world despite the existing gaps. The Court noted in the case of Livni, which discussed threatening harassment on the social networks (Different Civil Requests 03/185147 Livni Einat v. Barak Naama and others, 2003): “The Internet users must obey the rules of the real world, some of which also apply to the content of the Internet use, as law. It is clear that the law extends its wings over such cases, in which it is not the virtual characters conversing with one another in a purely imaginary virtual world … and when there would seem to be the concern that there is slippage into the real world even more so it is not possible to hold that the law for the prevention of threatening harassment does not apply to such a case.”
The Court clarified the central point regarding the use of the existing law against virtual rape, and it is that the education and legal system must adjust itself and the existing laws to cope appropriately with the problem. This space is not ex-territorial, a place where the existing law does not apply and there is no supervision of it. This is a space where real people deal with real crimes, and there too the law is supposed to apply and handle every crime.
Another example is the Opening Motion Case 04/3137 Ahava USA Inc v. Dablin G Ltd: laws from the physical world apply also to the world of the Internet. Justice (retired) Boaz Okon: “But the Internet does make the law virtual law, as if the rules of gravity of the law have stopped applying to this instrument, in a way that pulls us to a twilight state of the existence of an act or an omissions for which there is no appropriate legal response … the correct prescription is found in the logic of the regular rules of the law …”
In actuality, the virtual/cybernetic space is a developing digital medium, which by nature requires arrangement and laws that will outline rules of human behavior in this sphere. In my opinion, since this is a global issue, which entails behavioral norms from different places in the world, it is necessary to apply laws and regulations that will regulate global uniformity, in the way of legislation, alongside technological solutions and arrangement, so as to create global uniformity.
To put it simply, this is a “new country”, the country of the Internet. The real states, as a part of their laws will be obligated to the global arrangement on this issue. Further on this issue I will note that the basic goal of the laws of the virtual world (the cyber environment) is to arrange human behaviors and not technological behavior. As aforementioned, the cyber laws by nature are technology-intensive laws, when their nature is to preach use but not abuse.
The thought at the basis of my statement intends to express the nature of the government through the existence of law in cyberspace, or in other words, the application of the social norms from our real world, so that every action that is defined as a deviation from the normative rules of behavior, which are based in the frameworks of common law, will be considered a violation in cyberspace, as a part of the law in the virtual space.
We must not forget that this is a technological platform and that its application is what separates between cyberspace and physical space. Therefore, for example, a person who has a criminal thought to use the computer network and the Internet to defraud another person will be punished by the global cyber law, without a territorial consideration. In simple words, his real actions will be enforced under the cybernetic law of the virtual space.
Essentially, the expression “Internet laws” or “cyber law” entails a long list of cases in civil and criminal dimensions. These are laws, directives, and regulations that influence private people and organizations and institutions that control in actuality the interfaces of connection to the Internet (ISP), including the manufacturers of hardware and software that produce the computers and software programs that enable the user to connect to cyberspace.
To simplify things, I will define my statement on the issue of the basic perception of Internet laws and/or cyber law. The key is the expression, “access to the Internet” and hence the requirements from the user’s perspective are a computer system of any kind, with a modem and/or physical or wireless network card, along with a telephone line and connection to the Internet that includes a satisfactory Internet use package.
To remove all doubt, without these basic software and hardware instruments, the user does not have the possibility to connect to cyberspace. In our physical world, the public institutions, government bodies, and private companies that create the same hardware components and software applications constitute the guardians of the cyberspace.
Many will differ with my opinion on the issue of the fact that I delegate authority to the private companies and/or the role of guardian. To illustrate these statements and since in my opinion more than once these are capital offense laws, property laws, and so on, I will take examples from our physical world.
As known, the manufacturers of airplanes are obligated to meet stringent safety standards alongside repeated tests, in the attempt to identify future failures, and the aviation companies are committed both to the ongoing maintenance of the airplanes and to the strict tests on the issue of the flight safety and fear of terrorist attacks, so as to prevent an attack similar to the one that was inflicted on the US in general and the Twin Towers in Manhattan in particular.
This is compared also to the manufacturers of cars, the same cars that we all drive on a daily basis. The same is true of manufacturers of toys for young children, and the different food manufacturers that examine the quality of the components and materials subject to meeting the strict standards of quality and safety.
In this analogy, the hardware and software companies that produce the components with which they connect to cyberspace, through the network hardware, are supposed to meet the standards and procedures that will ensure that the Internet environment we all go to will be far more secure.
Without going into the secrets of technology I can say that this is certainly possible and does not necessitate far-reaching systemic change so as to meet the requirements that will avert and/or reduce significantly the scope of the wrongs caused to people. In actuality, every illegal action in the cyberspace will be under the open eyes of the global cyber law and will be automatically reported to the factors in charge of the enforcement of the law in this state.
I will illustrate this situation: as aforementioned, the access to the Internet is given to those who have the aforementioned instruments. Using the hardware component – a mouse and/or keyboard – the “gates” are opened for the user. Namely, the access to cyberspace is made possible.
A person who is found physically in one of the countries of Africa (for the purposes of illustration) connects to cyberspace. After the single presses on the keyboard and/or clicks on the mouse, he “enters” into an Internet website when its physical location is unknown, and I will note that the place of the company that owns the Internet website is the state of New York, and makes purchases.
Again, through the press on the keyboard and mouse, the person moves to another Internet website, when the company that operates this commercial website is in the city of Hong Kong, and purchases merchandise. Our “friend” again repeats this action, and this time the company is located in Paris.
Let’s assume that our “friend” uses a fake global credit card to make these purchases in New York, Hong Kong, and Paris. This is indeed one of the categories of crime in cyberspace, under the definition of “cyber fraud”, but with the lack of a global law, alongside the integration between hardware and software, it is possible we will not at all know the wrongdoer’s identity. Moreover, even if we will know the wrongdoer’s identity, in light of the fact that there is no uniform global law I will ask the following question. In what country should the wrongdoer be judged?
Before us there are profound and global issues, which engage in matters of jurisdiction, property laws, harm to the person’s good name and/or society’s good name, under the cover of anonymity, privacy laws, and so on.
Remember that this is not the era of print journalism in which it was possible to know clearly who is behind this statement. Moreover, and on the issue of the right to be forgotten, a topic that I will address at-length in the continuation, unlike in the era of print journalism, in which statements would disappear when the next day of news appeared, in the global Internet era written statements are forever.
The following is another example that proves that with the lack of a global cyber law, the judicial authorities and law enforcement in many countries from coping with different issues. It is known to all of them that harmful pictures and films are disseminated in cyberspace and through the cellular network, through WhatsApp, Instagram, Twitter, and Facebook. Even if the identity of the original wrongdoer is known, and he is punished, given the lack of a global cyber law that knows to deal with the phenomenon of viral dissemination, the chance of removing this harmful film or photograph from cyberspace is negligible.
More than once, different companies in Israel, England, and the United States have told me that they received an email message from a known supplier who reports to them that the bank account information has been changed and the new bank account information is presented. After the money has been transferred to the “new” account and the supplier is requested to send the merchandise after the transfer of funds, the supplier informs the company that they never sent an email message about the change of bank account information and that no payment for the merchandise was received. This is a “sting”, a “Trojan horse” that monitors the daily email messages; after the identification of the message that addresses the topic of the transfer of funds and bank accounts, the pretender assumes the supplier’s identity and sends an email message that announces the change of the funds transfer path.
To remove all doubt, I will note that these are financial crime organizations that know how to do their work very well. Namely, the chance of reaching these wrongdoers without a global cyber law that entails hardware and software components, alongside the administrative arrangement that engages in this issue, is very slim, and there is not much that can be done.
In most cases, my recommendation to these victims is to examine the loss caused to them versus the investment in the attempt to reach the culprits. This statement is based on the fact that there is a reasonable basis to assume that even if the law authorities will reach this group it is doubtful that the money will be restored to its owners.
On this matter, I will ask whether this is how things should be. Is the solution to throw up the hands in defeat when dealing with these wrongdoers who are taking advantage of us?
To put it simply, the effectiveness of cyber law derives from the fact that in the legal aspect the activity of the computer unit is linked with the local network system and the global internet system, in the example above, in the form of a collection of commands given from the computer by clicking the mouse and/or typing on the keyboard.
From a legal perspective, this is cyber fraud that is documented on the computer, which was performed by these users. Regarding my statement, I will note that in our era at this point in time the “cat and mouse” race begins. Namely, will the law authorities recognize who the user who did wrong is and will the law authorities reach these computers?
To resolve this issue, alongside the significant savings in the operational costs of the law enforcement system as a whole, it is necessary to establish cyber law that will define the information sent from the wrongdoer’s computer directly to the law enforcement factors. Thus, there will be correlation between the wrongdoer’s identity and the convicting evidence. This is comparable to the identity card number, in combination with DNA testing data. In other words, the integration between the two determines with complete certainty whether this is the same person that the legal authorities are looking for.
On the issue of the harm to the privacy, I will note that beyond the fact that there is no fear and it is possible to define the meaning of the harm in lesser ways, I will further note that the cybernetic space can be compared to streets of London or New York, namely just like the individual does not expect privacy in these spaces, he does not expect privacy in cyberspace.
To put it simply, the jurisdiction and law will apply both to the person and to the computer. The implications of the law obligate the individual and the machine that connects to the cybernetic space.
Establishment of the Offense of Virtual Rape in the Framework of the Penal Law
At the beginning of my statements for this chapter, I said that in actuality there is no “tool” that enables today the effective dealing with offenses of this type, and therefore we will examine the topic a second time.
As I understand it, and as a basis for the proposed law, it is possible to base upon the language of the Sexual Harassment Prevention Law in the framework of the offense of virtual rape, despite the difficulties entailed by the transition from the physical world to the virtual world.
The offense of rape is a behavioral offense that is established in section 345 of the Penal Law, 1977, which defines clearly what the offense is and what are the factual components required for conviction. The legislature in Israel determined for this offense a severe punishment of up to 16 years or 20 years under aggravating circumstances, punishment that is similar to the charge of manslaughter.
The factual basis required for rape is defined in article 345(c) of the Penal Law as sexual intercourse, which is “the penetration of an organ of the body organs or an object into the woman’s sex organ.” In other words, to convict a person of rape, it is necessary to have a physical sexual act – and this does not exist in virtual rape.
Given this obstacle, how is it possible to deal with the offense of virtual rape through existing law?
One of the possibilities is to establish the indictment on the basis of 350 of the Penal Law, the definition of which is the cause of the action. Here it is possible to convict for rape also if the person who is accused by law did not commit an act of rape physically but caused another to do this, as the law says, “One is if the person did the act or caused the act to be done to him or another person.” Accordingly, a person who causes the other to perform a sexual act on himself, even if through the virtual medium, can be convicted by rape.
In addition, the main component in the offense of the rape is the component of free consent, and under the law rape is an act that is performed without the woman’s free consent. In the case of virtual rape, frequently the victims give their agreement and they are those who photograph themselves and act sexually at the requests of the other side. However, in the many cases in which their agreement is given through deceit, it is possible to establish the component of lack of consent on the basis of article 345 (a)(2) of the Penal Law – impersonation is a situation in which a person provides a misrepresentation about himself and his personal nature, when because of the presentation the woman consents to an action with a sexual nature.
In a controversial ruling, the Kashor Case (Serious Criminal Case (Jerusalem) 08/561 State of Israel v. Kashor, 2010) the Court determined that a misrepresentation constitutes an offense of rape since it harms the woman’s free consent. The ruling determined that the creation of a fictive character and a whole story behind it, which includes also the pretense about the character’s details, is impersonation, and this is the consent that was obtained deceitfully and therefore is legally invalid. The ruling is that the article of the law on fraud holds, and thus it obtained legal validation.
The most famous case in Israel was in the year 2011 – the Sabach Case (Serious Criminal Case (Tel Aviv District) 11-12-40230 State of Israel v. Sabach, 2011). In this case, an indictment was filed against a person who pretended to be a cancer patient, held conversations with a sexual nature, and convinced young girls to send him intimate pictures when they are touching themselves.
The Prosecutor's Office filed an indictment for rape, but the prosecution dropped this section in the indictment. The Court in Israel saw additional cases in which indictments were filed for virtual rape, such as the Melamed Case (Serious Criminal Case (Tel Aviv District) 11-12-34267 State of Israel v. Melamed, 2011) in which the accused was convicted in a plea bargain.
In the Cohen Case (Criminal Appeal 13/6703 Cohen v. State of Israel, 2014), an indictment was filed for rape and eventually dismissed. The indictment under the article of rape to fight against virtual rape were filed in a number of other cases, but in all of them the trial ended with the reduction of the charge or conviction based on a plea bargain, without any in-depth legal discussion on the matter.
Despite the desire to establish the aggravated virtual rape under the offense of rape determined in the book of laws, it is important to emphasize the transition from the real arena to the virtual arena with the accusation of rape, also regarding the social-moral attitude towards the phenomenon and the factual requirements of the offense. On the factual level, the application of the article of rape that was intended to deal with real sexual offenses of rape in the virtual sphere raises difficulties and it is necessary to have the courts hold a meaningful discussion to carry out the desired adjustment in the established law. On the moral social level, while physical rape is morally condemned nearly completely and therefore the legislature has determined a severe punishment for this offense, virtual rape still remains a controversial issue that is not appropriately addressed in society. Therefore, other legal alternatives for the prevention of and struggle against this phenomenon can and should be examined.
Sexual Harassment Including the Relationship and Difference between Rape in the Physical Space and Virtual Rape
To understand the difference regarding what I have written to this point, sexual harassment is defined in real life as unwanted sexual gestures, exposure, or touches, and these actions are considered frequent on the Internet to the same degree as in real life, and even more. As I understand, there are three types of sexual harassment that constitute the foundation of the definition: gender harassment, undesired sexual attention, and sexual coercion, which is not included in the definition of rape.
On the metaphorical level, it is possible to define sexual harassment in responses and verbal comments, alongside visual actions, which by nature are insulting and/or cross intimate boundaries and/or discuss the nature of their gender, including the use of stimuli to awaken negative emotions and/or undesired behaviors that clearly are harassing to the victim and/or sexual intentions or statements towards another individual, without exerting physical pressure on a person, with the goal of extracting from her sexual cooperation.
The Israeli legislature wrote that:
“In the State of Israel, like in other places around the world, sexual harassment is a widespread social phenomenon that harms many people and especially women. Sexual harassment is harm to the person’s dignity, liberty, privacy, and right to equality. Sexual harassment harms the victim’s self-respect and social respect. It humiliates and shames the victim, including through the reference to the person as a sexual object for the harasser’s use. Sexual harassment negates the victim’s autonomy and control over her body and sexuality, harms her right to self-definition, and invaders her privacy, and thus discriminates against her, in comparison to other people.
Sexual harassment towards women causes their humiliation regarding their sex or sexuality and makes it difficult for them to integrate as equal members in the work world and in other areas of life, and therefore it harms their equality. The topic of sexual harassment has been handled until now by the Equality of Opportunities at Work Law, 1988. However, the law addresses only work relationships and refers to the negative outcomes of sexual harassment that are related only to the job framework and not to the harassment itself and ways of preventing it.
The proposed law is intended to denounce sexual harassment in any context and regarding any person. This proposed law is intended to increase the public awareness of the severity of the phenomenon, with the education of the public at large to respect others. The law does not purport to enforce morals or intervene in voluntary social relations; rather, it seeks to prevent a person from forcing himself on somebody who is not interested in this, and especially when this is done through the abuse of a position of power.
The proposed law forbids sexual harassment according to tort law, penal law, and labor law. The proposed law includes a broad and detailed definition of the prohibited behaviors. The proposed law determines that each one of these behaviors constitutes an action of torts.
The indirect amendment of the Penal Law, 1977 determines that these behaviors, which do not constitute today an offense, will be determined as a criminal offense. It is proposed to include an indirect amendment of the Equality of Opportunities at Work Law, 1988, so as to implement the general principles proposed in the law amendment also in the framework of the labor laws.”
On the change of the basic formula, what was written is commensurate with the bird’s eye view of the virtual environment as a whole; in other words, it is possible to replicate the initial statements of the above law proposal into the initial statements on the issue of virtual rape. Namely, this is a behavioral offense determined fundamentally in article 345 of the Penal Law, 1977, which clearly defines what an offense is and what the factual elements required for conviction are.
The legislature in Israel already determined for this offense a severe punishment of up to sixteen years or up to twenty years in aggravating circumstances, punishment similar to the charge of manslaughter.
The factual basis required in rape is defined in article 345 (C) of the Penal Law as sexual intercourse, which “the penetration of an organ of the body organs or an object into the sex organ of the woman”. In other words, to convict a man of rape, and referring to what is written in the words of explanation on the issue of sexual harassment and in analogy to the offense of virtual rape, there is the physical sexual act, and thus it is possible to complete the "missing link" that connects the virtual environment to the physical environment.
From another angle, it is possible to say that for the Internet, in light of the geographic distance, it is possible to include the offense of virtual rape only in the framework of the Sexual Harassment Prevention Law, since the geographic distance does not allow the carrying out of actions physically by the attacker, namely a situation that is impossible to achieve as a result of the distance existing on the Internet.
In actuality, and despite the absence of the ability of use of physical force as a result of the geographic distance, victims may interpret threats and imposition of authority as real physical force – exactly like in face-to-face situations.
As known, physical force is conveyed through the Internet and cellular network in a number of ways, for instance, sending frightening email messages, threats of the use of intimate films and photographs, viruses for the purpose of the collection of personal information, hacking into the victim’s computer system, flooding the victim’s email inbox, and dissemination of threats on the mobile phone through the use of applications like WhatsApp, Facebook, and others. In addition, cases of bribery and temptation may also constitute a main role on the way to harm of the virtual rape victim.
To understand the depth of this matter, I was recently exposed to an article titled “The Rape Incident in Cyprus: Don’t Blame Just the Tourist” which was written by Rabbi Yoni Levi on July 28, 2019 on the Serugim Website. There it said:
“… True, it is possible to now assign all the blame to the British tourist who fabricated the charge of rape since she was angry that they had filmed her during the act and to thus close the discussion. However, this would be a serious mistake and an evasion of the truth.
Dear friends, the data do not lie! 94% of the children up to ninth grade have watched pornography (the research of Dr. Efrat and Shlomit Habron), which is a laundered word for ‘virtual rape”. There are an infinite number of WhatsApp groups of children and youths who with an easy click can join and be a part of a dark world where Sodom and Gomorrah pale in comparison – films of beheading, hard core pornography, rape of children, pressure to upload intimate contents and harassment by pedophiles.
And you know what, forget about Aya Napa. The incident there made the main headlines, but here is another story that was published on the same day and was pushed aside: a 12 year old girl from Ramlah who twice suffered gang rape at knifepoint by a group of boys in seventh and eighth grades from her school who filmed and disseminated the films in the school. The girl has been hospitalized for already four months in a closed institution with a terrible mental situation and her family has received threats to her life if she files a complaint … and this is one of many examples … let’s not close our eyes and not cover this up. Leave these youths alone. They are really not the point. Since Cyprus is here. Really here.”
In actuality, sexual harm through the use of the Internet occurs every day. About 35% of the youths noted that during the past year they were sent materials of a sexual character through the social networks. About 40% reported that they receive verbal requests of a significantly sexual character on the Internet.
This same sexual harassment, which fundamentally is the factual and legal basis for the instilment of content for the establishment of the offense of virtual rape, can be expressed in sending photographs and films and texts of a sexual character, including the carrying out of a sexual act in the framework of a conversation and/or the presentation of a sexual act through a camera and live, including virtual surveillance, threats, hacking into the computer, and so on.
Further sexual harm that occurs on the Internet is virtual rape in multi-user computer games with figures of high quality animation that distort the perception of the difference between the virtual sphere and the physical sphere and has created more than once a feeling of legitimacy even after the departure from the game. In these games it is possible to view especially violent virtual rape. Players who have experienced this type of rape have reported symptoms of post-trauma, which require more than once medicinal treatment over time.
As known, many relationships begin through the use of the Internet and the normative relationship leads more than once to friendship, business relationships, romantic relationships, and so on. However, also as known, some relationships lead to the harm to another, to sexual exploitation, and to rape in the virtual space.
To better understand, it is necessary to perform a comparison on the differences and similarities between sexual assault and virtual rape, in the attempt to identify themes of similarities and differences between the two. To illustrate these themes of similarities and differences, the following table (not comprehensive) was built.
Table Number 1: Comparison between Rape and Virtual Rape
Why this happens
Sexual satisfaction, including power and control
Sexual satisfaction, including power and control
How this happens
Random or planned
Through the use of physical force that leads to the undesired penetration, abuse, contact, etc.
Can be the result of surveillance, sexual harassment, rape at a meeting, etc.
Random or planned
Through the use of psychological force, including the use of technological means that cause the rape victim to perform on themselves penetration and/or other sexual acts, abuse, etc.
Can be the result of surveillance, sexual harassment, naiveté, lack of experience
Who this happens to
Naïve and/or trusting people and/or distracted people, exploitation of an opportunity by the attacker
Naïve and/or trusting people and/or distracted people, exploitation of an opportunity by the attacker and/or lack of experience in the virtual space
In addition to the differences described above, there are main differences between rape in the physical sphere and virtual rape. In real rape, the victim may have the ability to escape or flee, to call for help, or to file a complaint with the Police, unlike in the virtual world, where the victims of virtual rape may not have the ability to flee and/or may not know how to escape and to obtain physical help from others who are present (after all, the world of the Internet does not have physical materiality).
Furthermore, real rape has a tendency to occur in the private spaces, since the attacker is not interested in being seen or caught (rape drugs even prevent the victim from remembering the attacker). However, virtual rape can occur publicly or privately since there are very few outcomes, if any, in a case where the attacker is seen or caught.
To understand the depth of the influence of acts of virtual rape on the victims, both in the computerized space and in reality, and to understand about the relationship the concepts described above, the following is an example of a virtual rape in the Internet space, during a computer game.
The Bungle Affair
This is the first documentation of a virtual rape, in the year 1993. The Bungle Affair exposed the most intimate details of virtual rape, as well as the responses of the victims and the online community towards the attacker. The publications about the case were addressed by professionals and scholars in the United States, for an important basis on the topic of virtual rape. The Bungle Affair occurred in the Internet space called LambdaMOO, a type of multi-user dimension in which they can create room and objects, including the creation of interaction with others.
In actuality, this is a structure compared to a mansion that consists of hundreds of rooms connected to one another. The person who carried out the crime was called Mr. Bungle, an avatar controlled by a student at New York University and described as “a fat, smooth clown, with the face of a cookie, dressed in a stained clown costume and with a belt twirled with mistletoe with a buckle that said “kiss me under this, bitch!” The virtual rape occurred on March 2, 1993, in the living room of LambdaMOO where many other avatars had gathered. Mr. Bungle, without provocation, went into the living room around 10PM and by using a Voodoo doll forced Legba (unclear gender), controlled by a woman from Seattle, WA to provide him with sexual services. Legba’s shouts forced the rapist to leave the virtual living room. From there, he went to unfamiliar places in the mansion but continued to use his voodoo doll to attack, this time a number of avatars: Starsinger, a female character controlled by a woman in Haverford, PA, Legba, Bakunin (unknown gender), and Juniper (a squirrel).
Mr. Bungle forced Legba to eat his/her pubic hair, Starsinger to hurt herself using a butcher knife, and all to undertake violent sexual acts on one another. Last, the difficult experience ended when Iggy, a trusted figure, used a magic gun to close Mr. Bungle into a cage that prevented the doll and the avatar to cause further chaos.
This example is one of many that document virtual rape in the game space, where rapists make use of fictive characters, which give them a sense of omnipotence, and under this “cloak”, they commit acts of virtual rape as derived from a type of violence online and at a distance. It is important to recognize that until now most acts of virtual rape have evaded legal implications, at least in Israel and in the United States, whether this situation derives from the lack of existence of laws that deal with violence on the Internet or virtual rape or is a failure in the amendment of the accepted existing law, so that it will include components of violence online as derived from the offense of rape.
These testimonies indicate how a game that can be interpreted as innocent can assume the form of a nightmare physically, including difficult mental implications that last time. Needless to say, this online environment gives sex offenders and pedophiles a free space to act, under a seeming cloak of legitimacy of a computer game.
Questions of How and Who on the Matter of Virtual Rape
Many questions can be asked on this issue, and the main ones are how does this happen and who may become a victim? What makes virtual rape so real and true for the victims? Is this the embodiment of the user into the avatar or the vitality of the environment? Is virtual rape only a non-harmful type of sexual harassment or does it require real enforcement – far more than the Sexual Harassment Prevention Law provides?
To answer these questions, it is necessary to understand about the interaction between avatars (the fictive character created by the user for the purpose of the game) and the virtual environments as a whole.
According to common law, the components of the offense of rape include the characteristic of the physical harm or sexual penetration, so as to be considered this type of offense. Indeed, the Internet and the virtual environments lack of the ability to provide a sense of physical contact, but nevertheless with emphasis on the space in computer games, including three dimensional glasses, these means bridge the dimension of virtuality and through them the participants achieve a sense of reality.
For many years, in the United States the difficulty in the definition of the term virtual rape derived from the fact that this is an unclear or vague idea, since in the real life the definition of the offense of rape was not agreed upon in a way that is undeniable. I will note that definitions and laws associated with rape differ from one state to another, and therefore I will attempt to learn from the article authored by Kilpatrick already in the year 2000 for the National Violence against Women Prevention Research Center, which analyzed the issue of sexual assault, including the offense of rape. I learned from his statements that the abstract definition was significantly changed in comparison to the common definition according to law (and before the 1960s) to a more detailed and comprehensive definition in the year 1962 which was based on the model of punishment in the United States and that today the federal definition is detailed and comprehensive.
According to the federal definition, the offense of rape fundamentally addresses the issue of sexual contact of any time that was carried out without consent and unwillingly, out of clear awareness. I will note that the definition does not differentiate between the attacker’s sex and does not differentiate between sexual assault achieved through threat or by force or any other means. Given this fact and on the basis of the social structure that makes great use of the internet, computer games, and other instruments at its disposal in the technological environment, the same environment that enables any other type of attack, the violent nonconsensual sexual attack of the individual by definition is virtual rape.
As quoted and referenced in the article of McKinnon (1997a, p. 228) and Williams (2000, p. 101), “virtual rape” is defined as:
“A sexually-related act of a violent or acutely debasing or profoundly humiliating nature against a character who has not explicitly consented to the interaction. Any act which explicitly references the non-consensual, involuntary exposure, manipulation, or touching of sexual organs of or by a character is considered an act of this nature. (Nancy [#587980] 1994)
(For the full account, see Dibbell (1998)).
Two weeks later, after the above definition and reprimand were originally suggested, the following was posted, as referenced by MacKinnon (1997a, p. 229):
“Sexual harassment (particularly involving unsolicited acts which simulate rape against unwilling participants). Such behavior is not tolerated by the LambdaMOO community. A single incidence of such an act may, as a consequence of due process, result in permanent expulsion from LambdaMOO.... [sic]
This petition makes no requirement on mediators that they recommend expulsion in every incident; if circumstances dictate, a lesser action may be designated. But if, after due consideration, the opinion of the mediator is that the situation was extreme enough to warrant expulsion, the effect of this petition is to confirm that the community thinks that expulsion is within the scope of reasonable penalties for an act of this kind. (Linnea [#58017], 1994)”
Therefore, virtual rape fundamentally constitutes the simulated sexual nonconsensual violation of the attacker and/or the avatar against the victim. Namely, this is the visual and/or textual representation of the user, on the part of the avatar that attacks through the online interaction.
Virtual Rape in the Framework of Virtual Communities and Computer Games
In this chapter, which addresses a little more at length the issue of rape in the frameworks of online communities and computer games, I will start with the examination of the question of who are the victims in general. As I understand it, and on the basis of research studies and learning, there are a number of situations in which virtual rape can occur. Three situations are a result of the fact that the victim is curious or inexperienced, a result of surveillance of the victim for a given period of time, or that the victim was sexually harassed.
Virtual rape as a result of the victim’s curiosity or inexperience appears at first to be a strange comment, and/or curiosity is considered a very human attribute and can lead Internet users to situations that may be dangerous in the circumstances of the matter. On May 6, 2007 Diana Allandale revealed her experience with virtual rape in the game “Second Life’ as a response to a post to VirtualToReality.com called “How exactly does ‘virtual rape” even occur in Second Life?” (Sartre, 2007):
"As to the virtual ‘rape’…my first week in-world, a male avatar invited me to a beach. Turned out to be a nude beach. I’m not a prude, and to be honest, still tend to equate dressing (and undressing) my avatar as playing with my Barbie doll when I was little. So sure, I took off my clothes, we went skinny-dipping and afterward, he suggested two poseballs. Being the newbie, I was, I didn’t understand that the word “love” hovering over the top meant “intercourse”. When a cock suddenly appeared on him and he started going at it with my avatar, I will admit, my first thought was…”Hey! I didn’t consent to this!” But reason took hold, I told him I wasn’t interested and that was the end of it. A few short minutes later, I was dressed and had left him on the beach, feeling ticked off that someone would take advantage of my newbie-ness, but having learned a little about human nature.” (Allendale, 2007)
As I understand, this is a problematic description, in light of the fact that also in our physical world going to a nudist beach leads necessarily to the removal of the clothing and hence it is reasonable that the male sex organs will be exposed – more than one. If this causes a person to feel discomfort, then the person should not go to a nudist beach. Conversely, some maintain that in this event it is possible to see the abundance of tempters in the virtual space, as well as the danger for these new users who are not aware of what can happen and are convinced that in the virtual sphere the virtuality will not allow the other users to hurt them.
From another angle, it can be said that the lack of technological understanding is a barrier before the new users who are not aware of the strength of the technology on the issue of the almost infinite possibilities. Hence, they are not aware that actions as described can indeed occur. In other words, many users are convinced that the geography is their defense, and this provides them with a sense of confidence that naturally lowers the personal defense systems. Thus, a situation is created in which the attacker can act in this space without interference. In actuality, the same new users are emotionally manipulated to engage in simulated sex activity (cybersex) without their consent and/or innocently trust their attackers, and they may serve as easy targets in the virtual communities.
Needless to say, in most cases in the preliminary stages this is the lack of understanding of the victim about the deeds of the attacker and/or attackers. This lack of understanding enables the event to occur.
Sexual Harassment and Prohibited Surveillance Actions, Using Technological Means and the Internet – Cyberstalking
As I noted previously, virtual rape is defined today in Israeli law under the category of sexual harassment as a whole. As I understand, and on the basis of researches and articles I read and from the statements of the American legislature, as a part of the actions that are carried out by the virtual attacker, which in my opinion should be addressed in the framework of the offense of rape, these actions in their definition are actions of sexual harassment and include actions of surveillance of others using the Internet, while using other electronic means (cyberstalking).
Sexual harassment, consequently, is one of the links that connect between the rapist’s intention and his awareness of the commission of the offense, namely actions that will contribute to the carrying out of the offense of virtual rape.
In the year 1999 the vice president of the United States, Al Gore, identified growth in certain types of online behaviors that are used to harass and frighten others and demanded to receive a report from the Attorney General. The report of the U.S. Department of Justice defined the “use of the Internet, E-Mail, or other electronic communications to track another person” as cyberstalking. Some scholars agree with this simpler definition.
However, Bocij (2002) describes the phenomenon of cyberstalking in much greater detail, as follows:
"A group of behaviors in which an individual, group of individuals or organization uses information and communications technology (ICT) to harass one or more individuals. Such behaviours [sic] may include, but are not limited to, the transmission of threats and false accusations, identity theft, data theft, damage to data or equipment, computer monitoring, the solicitation of minors for sexual purposes and confrontation. Harassment is defined as a course of action that a reasonable person, in possession of the same information, would think causes another reasonable person to suffer emotional distress".
From what is written, we learn that the purpose of the stalking person is not necessarily sexual motives. Sometimes these actions are actions of revenge, hatred, anger, jealousy, obsession, etc. These actions indeed are harassing, and they can be included under the definitions of the Sexual Harassment Prevention Law.
Needless to say, actions of surveillance of any type are harassing and have definite psychological and physiological influences on the victims, which may cause emotional responses similar to fear, anxiety, nightmares, powerlessness, excessive readiness, changes in eating and sleeping habits, increased levels of distress, feeling of lack of control, and feeling of loss of self-confidence.
Relationship between Cyberstalking and Virtual Rape
How does virtual rape fit into the category of cyberstalking, and how does it constitute an extension of the “traditional” worrisome surveillance? About a decade ago, a special report was issued by the Bureau of Justice Statistics in the United States (2009), which estimated that about 3.4 million people aged eighteen and up were victims of harassing surveillance. The report indicated that 13.9% of the victims of harassing surveillance experienced rape/sexual assault by the attacker. The report described issues of physical attacks performed by harassers/stalkers against the victims, as well as the fact that this is something common: rape/sexual assault is the rarest of the cases.
It is possible to learn from the statements of the Israeli legislature that these issues in the material world indeed are included in the framework of the Sexual Harassment Prevention Law but are not interpreted to the Internet space and that all reference to actions of surveillance in this space are absent. In other words, as I understand, explanatory action, namely the generalization of these actions through the use of technological means, as described above, certainly can lead to increased awareness, as well as the creation of a threat against the people undertaking these actions themselves.
It is necessary to take into account that the feeling of revenge, hatred, anger, jealousy, obsession, and so on create the psychological basis for the carrying out of the offense of virtual rape also in the framework of computer games, including virtual communities, and the virtual space creates a feeling of legitimacy for the players who take with them the virtual space outside of the boundaries of the game, namely, this is a simulated reality.
In actuality, the simulated reality and the material world are two overlapping realities, and more than once the feeling of reality in the virtual space, during the computer game, and the emotional strengths in it blur the boundary between them and enable metaphorically the same person to project the simulated reality into the physical space.
As known, the virtual communities themselves do not exist in the physical sense or in the geographic sense but are built in social terms in an online environment that is provided by people who are situated in a geographically dispersed manner with the same areas of interest. In other words, virtual communities are not generally located in the same geographic region in the physical world; but the virtual community itself is found at a certain network address where the members of the community are allowed to unite. In other words, the virtual community is a social cooperative with its own organization, which is created and preserved using technological means and regardless of a geographic or socioeconomic connection, age, religion, and/or race. Namely, it is a multiplicity of individuals connected to one another only electronically.
Returning to the issue of cyberstalking, this environment allows the collection of considerable data about the harassment victim and her refusal to the harasser’s demands to perform activity of some type may fundamentally cause the harasser to feel the desire for revenge and the shift of the emotions to outside of the framework of the virtual game. Thus, it is necessary to understand these actions and to include them in the framework of the Sexual Harassment Prevention Law.
Relationship between the Phenomenon of Multiple Realities and the Offense of Virtual Rape
The issue of multiple realities is taken from the individual’s understanding of the material reality he knows and the relationship between this reality and the sense of simulated reality, which more than once the individual receives from being a part of a virtual online game.
As a part of these feelings in our physical world, it is possible to feel warmth, cold, touch, and gravity, alongside abstract feelings that derive from the environmental behavior and derive from the hardships of today, such as happiness, disappointment, and frustration, as well as others, which by definition are abstract feelings.
Moreover, in the material world or in the physical reality, there are also characteristics of the type of color and sound, height, color of hair, structure of the body, and so on. These facts are revealed in the physical world when we meet another person. These facts are the source for the distortion of the understanding between the virtual world and the physical world, namely also in the virtual world there are characteristics such as skin color, height, eye color, hair color, and so on. This is a relationship that blurs between the material world and the virtual world and enables the presence of the theory of multiple realities, with blurring about what is permitted and what is prohibited in entirety.
In other words, the transition between one reality and another reality is the innovation. Or, in other words, the entrance into the virtual world, with differentiation of these parameters we know from the material world, erodes the understanding of the presence of the user in the virtual world and this fact becomes an everyday routine and norm. That is, technology that enables the personification into the virtual space creates the blurring of the senses also in the user, namely, this user is “immersed” in a simulated reality and s/he loses the connection to the material reality, for now, namely the simulated reality becomes the actual reality in practice.
On the basis of the research studies I have read, there are a number of different types of realities for the individual, and in our matter it is possible to hypothesize that the physical reality in which we live indeed draws close to being similar to what is considered a simulated reality especially when behaviors, social learning, and the composition of reality are taken into account. On the basis of these research studies, including my in-depth understanding from the world of technology, and as I already noted previously, the simulated reality is slightly similar to the physical reality.
Needless to say, the media, which constitutes a natural trait of reality, does not only exist in the simulated reality but also helps form it exactly as it does in the physical reality. The success and survival of a society is based on good communication among people and the “war” between the communities in virtuality is over the creation of a media environment that is as active as possible among the members in a community.
In an article published in a journal in the year 1999, Derry described the social learning as an important part of the construction of knowledge. The article addressed the interaction between the participants, for instance, what happens in online multi-participant games that have different roles to play, including the analysis of issues of “power” and control and including the motive behind the building of the new knowledge.
In actuality, it is possible to learn from the article that the new situation in the framework of the play forced the students to adjust to differences between the natural beliefs from the home and those of others and that this fact supports the understanding that the laws of the community are established by cooperative members of the society that is a part of the community. On this topic, Powers (2003, p. 193) wrote that:
“The combination of speech act theory and realism about intention suggests a more inclusive realism since it grants as real such entities as performative acts (and intentions so to act), even when they are put into effect by the mediation of computer programs".”
In other words, the simulated reality is very real for certain users, like the physical reality, especially in situations in which the user/member in the virtual community is deeply immersed in the same environment and thus blurs the connection to real life. Hence, I reached the conclusion that regarding the issue of virtual rape, with the understanding that there exists a significant population that may slip from the physical reality into the virtual reality while blurring between what is permitted and what is prohibited in all spheres and regarding the issue of virtual reality, an individual examination will be required for each attacker, so as to examine his awareness, as deriving from what is required for the purpose of the conviction of crimes, according to common law.
From another angle and on the issue of technological development and the legislature’s ability to keep pace, it should be noted that the Internet has brought with it many theories, including attachment theory, in the attempt to explain and instill content into the social influences that were created as a result of the existence of the Internet. One theory maintained that technology drives social change, namely the change of practices influenced by technology, and that technology changes everything without changing itself in the essential sense, in light of the fact that technology is a means and is not an end.
Jacques Ellul (1987/1989) believed that the natural environment and the social environment will receive a secondary role to the flourishing technological environment that the human species has created for itself. These two original environments will become secondary to the technological environment. He correctly predicted that:
“On the one hand, there will be a kind of aristocracy marked off by its total and infallible adaptation to technical gadgets and the technological system, and on the other hand there will be a vast number of people who are outdated, who cannot use the technology, who are powerless, who are still at the social stage but who live in a technological environment for which they are totally unadapted.” (pp. 138-139)
It is possible to learn from his statements that human nature still exists, although it is doubtful how much the individual will make decisions in the future, with regard to the technological progress. He asserts that it is obligatory to apply as many technological changes as possible and to instill them into the management systems of society, so as to make the life routine more effective and comfortable for the individual in particular and society in general.
As I understand, what is nice in what is written is his understanding from the end of the previous century, and as proof, technology is indeed assuming a central place in our life. The best examples are the use of cellular devices alongside the amendments of the law and legal regulations that address the issues, when the prominent ones are laws for the protection of privacy, including the General Data Protection Regulation (GDPR) of the European Union.
Another assertion arises from his statements on our issue and illustrates the immediate need for the change of the law, namely the transfer of the offense of virtual rape into the framework of the offense of rape in the Penal Law. He asserts that society must adjust rapidly and make the general change and accept the situation. We further learn from his statements that this adjustment must be immediate and not slow and calculated – this immediate and vital adjustment constitutes a problem for these Police organizations and law and political authorities, in light of the fact that the development of technology is too fast for the legislatures and enforcement authorities and they do not have the resources or the knowledge to update and/or meet the pace of technological pace.
On the same topic, at the start of my book, Digital Evidence in Practice – Between Law and Technology, which addresses a comprehensive variety of topics in the fields of law and technology, it says, “We cannot solve our problems with the same thinking we used when we created them”. This is what Albert Einstein said, and proof is seen in that the last decade was one of rapid changes. It was a decade of tremendous breakthroughs in the field of computer technology – Facebook, WhatsApp, Twitter, rapid Internet speeds, use of mobile phones as computers in all respects, social networks, closed circuit television, and GPS (global positioning) systems that completely changed interpersonal communication around the world. In essence, the “traditional” daily activities have almost completely vanished and been replaced by online applications, electronic documents, and virtual servers that are seated not necessarily in the borders of the user’s country.
Consequently, the personal information of all of us became the province of all, to a certain extent and/or at least the province of those who know to reach it. As a result, every technical flaw, virus, and even power outage may disrupt our life routine and even cause serious financial harm to the economy and the job market.
The technological arms race is an existing fact, and the different types of computers are an inseparable part of our everyday life. However, here is the problem. The change is too fast for most people, the ignorance in the topic exceeds the knowledge, the professional language is perceived as too difficult to understand – and in many cases the attitude towards the technological world is “contaminated” by traditional, outdated thinking that is not commensurate with the needs of the modern era.
In our physical world, the prominent victims of this reality are the representatives of the legal system – judges, attorneys, and jurists. The world of law is conservative and traditional by nature. The justice system relies on laws that do not always meet the pace of technological change which they are supposed to supervise. Thus, there have been rulings that have created precedents and milestones, which left their mark and outlined a regular method over the years, but in practice the method does not take into consideration the nature of the world where we live. Judges, prosecutors, and defense attorneys are not experts in computerization and technology, and the changing reality places at their doorstep extremely complex issues, some of which have never before been discussed in the past.
On this issue I will emphasize that to differentiate from the average generation of people, the “life cycle” in the field of technology renews approximately every three years, and thus there is a chasm between the law, the ruling, and what happens in actuality. The miserable results are expressed every day: jurists and judges are required to address issues that integrate law and technology – and find themselves powerless. They must present, counsel, or decide – but they do not have the tools or the knowledge necessary for this. Already a number of years ago Judge Dr. Michal Agmon-Gonen declared that, “The Courts do not need to engage in this”, while another judge admitted during a hearing that he does not know how to deal with technological issues. A third judge asked that the opinion of a computer expert be presented to her and she announced that his decision on the issue would be binding and final.
The objective of the book Digital Evidence in Practice – Between Law and Technology is to change this reality. The book is intended for the public of jurists, and it bridges between the two worlds that are seen as distant from one another, the world of law and the world of technology. The book collects a wide range of topics, terms, and scenarios and integrates between the four aspects that comprise every legal issue: the factual circumstances, the evidential aspect, the professional data, and the legal analysis.
The book Digital Evidence in Practice – Between Law and Technology addresses the complex issues that derive from the unavoidable connection between man and technology. The underlying idea is to eliminate the disconnection between the legal world and the technological arena, to reduce the gaps of knowledge, and to present as clear and unequivocal picture as possible. The goal, in the end, is that justice will not only be done – but will be done from knowledge and in-depth understanding.
The book provides detailed but simple explanations of the understanding about the technological processes that accompany our lives. Alongside these explanations there is the presentation of factual cases, the examination of the issue with legal eyes, including through comparative law, and alternatives for appropriate legal solution.
The book is published after long years of learning and research and experience and counseling through hundreds of complex legal cases, both civil and criminal, including money laundering, rape, and murder cases. It is based on the in-depth knowledge of the law and the legal system in the United States, England, and Israel. The book presents the topics thoroughly and meticulously, is written in a friendly and easy to understand style, and is convenient to use for somebody for whom technological language is a stranger.
Unfortunately, this understanding still has not become sufficiently deeply entrenched in society in general, as well as in the intricacies of the world of law, and in context to the simulated reality, there are many legal cases in which I have engaged in issues of slander, from which it is possible to learn that the wrongdoers lose the connection between the physical reality and the virtual reality and when they enter a Facebook page and/or any other social network site they act like there are no limits, hurting others openly. To illustrate these statements, it is written in one of the prosecution statements for which a final judgment was given:
“… And to understand the depth of the harm, the claimant is an expert surgeon, who has worked for years in medical services and does thus with dedication, skill, and professionalism. He has never been sued; he has never faced any letter of demand or complaint and he has many certificates, recommendations, and thank you letters for his good, dedicated, and caring works. Conversely, the post at the center of this lawsuit, as the undersigned will see, is filled with falsehoods, humiliations, provocations, and harmful statements and in less than two days it had been shared hundreds of times and had received responses at the defendant’s inciting encouragement (as aforementioned, in the terms of digital media – a viral post); all this when the claimant did not have the ability to respond and defend his good name and reputation for which he had worked with blood, sweat, and tears. Simply, as the Jewish Sages say, “Life and death are in the words.”
Appendix Number 1 presents the harmful publications at the basis of the lawsuit, which beyond the presentation of a false/distorted picture, in which it was written: “I will discredit him till he is dirt…”, “I heard that many girls are suing him for implants that burst …”, “monsters”, “human scum …”, “what is more important is that nobody gets close to them!!! …” “…it turns out he can't do that either ....”, “certainly you have friends, warn them away from them …. And all his staff are human scum …” There were also tendentious inaccuracies in the post itself, for instance, the melting was carried out in the entire upper lip and not in part of it, the payment was returned to the respondent a long time before the writing of the harmful post, and so on.
Returning to our matter, it is very doubtful whether in the physical space a normative person would say such statements. This fact illustrates my argument of the phenomenon of multiple realities, with emphasis on that in most cases the users lose the connection to the physical reality when they “move” to the virtual space.
Virtual Rape in the Frameworks of Other Legislation
On the basis of research studies I read, including the knowledge I have acquired over the years, it is indeed possible to cope with the phenomenon of virtual rape under a number of other pieces of legislation, and foremost is the offense of an indecent act, defined in article 348(f) of the Penal Law, “"indecent act" – an act for sexual arousal, satisfaction or abasement”. The punishment for this offense is up to seven years under regular circumstances and ten years under aggravated circumstances.
An indecent act is a separate offense from the offense of rape, and it constitutes the offense second in severity in the sexual offenses. In essence, it is possible to include under an indecent act every sexual offense in which there is no element of intercourse, the factual component required for the offense of rape.
The law does not limit the indecent act to any act and any sexual expression is defined as an indecent act in the eyes of the law. Since the factual basis of the indecent act is broad, the law does not present a factual basis for the offense, but the charge is based only on the mental element.
The accepted interpretation is that to accuse a person of an indecent act it is necessary to prove a special intention according to the goal, sexual gratification and awareness of the nature of the act. In other words, the proof required for the accusation of an indecent act is that the person is aware of the fact that he acted for the purpose of sexual gratification.
It is necessary to emphasize that although the indecent act includes a variety of actions, the Court does not tend to convict for this offense when the sexual act includes only statements, which are considered sexual harassment, a less severe offense.
It is possible to see that if there are factual difficulties in the charge of virtual rape under the existing law because of the components of the offense and even the different social attitude, then the commission of an indecent act does not require fact-based components but only intent-based components, which can be proven easily in such actions in the Internet space. It is possible to conclude and prove special intent in the offenses of virtual rape, especially the severe offenses that last, such as blackmail over time, and therefore this normative framework is a legal instrument that can be deployed successfully to combat the phenomenon.
In addition, the moral-legal severity of an indecent act versus rape can make it easier for society to accept such charges in the virtual world and to create an accepted change in the immediate time range without the need for social and/or normative change in the field of rape itself.
The Court itself has already charged in a number of cases people under this article with offenses of virtual rape and in cases described above the offense of rape was reduced in different cases to conviction for the offense of indecent act. An additional examples is the Goldstein case (Criminal Case 15-08-20996 Tel Aviv District Attorney v. Goldstein, 2017), in which a person held sexual conversations with a policewoman who had pretended to be a child so was charged with the attempt at an indecent act on a child, an attempt to cause an indecent act to a child, and attempt at sexual harassment.
In this case, the Court emphasized that the online conversation or a telephone conversation can form the offense of the indecent act. Thus, in an Anonymous case (Criminal Appeal 08/9012 Anonymous v. State of Israel, 2012), the Court wrote: “Given the circumstances listed in the article, it is possible to convict also for ‘virtual contact’. Such contact can be expressed in a conversation between two people – whether in the same physical space or by adopting technological means: the telephone, the sending of messages, or the use of the Internet, and so on.”
In another case, an anonymous case (Criminal Appeal 11/7725 Anonymous v. State of Israel, 2013), it was determined also that the virtual space constitutes a space in which there can occur the offense of an indecent act. The Court described that this interpretation of the existing law intends to adjust the legislation to the future, while recognizing the new ways of creating a relationship between people through the use of the different means of modern technology. The Court determined explicitly that “an indecent act can be committed also through the use of electronic messages, pictures on the computer, and so on.”
Additional legislation it is possible to use is the offense of blackmail with threats, when the action has a sexual nature, as defined in article 428 of the Penal Law. This offense is described in the following manner:
“If a person threatens anybody in writing, verbally or by his conduct with unlawful injury to his or some other person's body, freedom, property, livelihood, reputation or privacy or if a person threatens to make public or to refrain from making public anything that relates to him or to another person, or if he terrorizes a person in any other manner, all in order to induce that person to do something or to refrain from doing anything which he is entitled to do, then he is liable to seven years imprisonment; if the act was performed or omitted because of or during the said threat or terrorization, then he shall be liable to nine years imprisonment.”
Extortion by threats when the act is of a sexual nature constitutes an offense that violates the values of human dignity and the woman’s right to autonomy. Under this sub-article there already have been charges and convictions of sexual harm on the Internet and actual virtual rape, such as the Pinto Case (Criminal Appeal 15/8720 State of Israel v. Shimon Pinto, 2016). This is a case in which a person was accused and convicted of extortion through threats to disseminate online pictures with a sexual character. The Court described that it does not matter whether such an extortion action is undertaken on the Internet or in any other space; such blackmail in which the consent is obtained through the use of a non-physical threat is no different from a physical threat or a threat to harm the body. Every use of force and threat to debase and sexually exploit another, whether with physical force or threat of real harm or any other harmful outcome, constitutes extortion through threats.
This legal framework is commensurate with the handling of the phenomenon and even has been used – but it is not a sufficiently comprehensive and normative framework to combat all offenses defined in virtual rape. This legislation holds only for cases of blackmail and threats, and in this field, it is recognized by the Court as an effective instrument that can be used also in the virtual space.
In Israel, the phenomenon of virtual rape is included in the framework of the Sexual Harassment Prevention Law, 1988. According to my understanding, this is legislation intended to deal with sexual harassment in the workplace and in general, and it addresses the lowest threshold of sex offenses in Israel.
This is the only law in the field of sexual offenses in which a certain adjustment was carried out of the offense to the world of the Internet, and on January 6, 2014 the amendment to the law, called the Film Clips Law, was passed. This amendment determines that any publishing of pornographic content, whether in a photograph or a film, with the consent of the person appearing in the film is considered in essence sexual harassment and caries a punishment of up to five years of imprisonment.
Article 3(a)(5a) of the Sexual Harassment Prevention Law notes, “the publishing of a photograph, film, or recording of a person, which focuses on his sexuality, under circumstances that the publication is likely to humiliate him or debase him and his consent for the publishing was not given”.
It is important to emphasize that in addition to this amendment pertaining directly to the dissemination of films and pictures on the Internet the existing legislation in Israel regarding sexual harassment applies indirectly to users of the Internet and the virtual space, according to the applicability of the law in the real world.
Thus, the provisions of the Sexual Harassment Prevention Law constitute a framework that can be used to combat the phenomenon. Thus, article 3(a)(3) of the law determines the prohibition of “repeated propositions of a sexual nature, addressed to a person who has demonstrated to the harasser that he is not interested in the said propositions”, section 3(a)(4) “repeated references addressed to a person and focused on his sexuality, when that person has demonstrated to the harasser that he is not interested in the said references”, and section 3(a)(5) “an insulting or debasing reference to a person in connection with his gender or sexuality, including his sexual preference”.
Furthermore, the law determines that, in all that pertains to sexual harassment of minors, propositions of a sexual nature or recurring references that focus on the person’s sexuality will be considered sexual harassment even if the minor did not show that he is not interested in them, in contrast to an adult. The law determined for this sexual harassment a punishment of up to two years of incarceration.
Additional laws that endeavor to deal with the issue of sexual harassment on the Internet, mainly from the field of the protection of privacy, include the Protection of Privacy Law, 1981. This law intends to prevent the use of personal information by other people. The law states, in section1, that “No person shall infringe the privacy of another without his consent.” In the continuation of the law, the harm to privacy is defined, when the law notes the harm in section 2(3) as “photographing a person while he is in the private domain”. Article 3 states that, “publishing a person’s photograph under such circumstances that the publication is likely to humiliate him or bring him into contempt” and article 10 states that, “publishing or delivering anything obtained by way of an infringement of privacy”. Article 10 determines that the punishment for each one of these offenses is up to five years of imprisonment, and the law even determines that the harm to the privacy is a civil wrong for which damages of up to 50,000 shekels can be requested in cases where there is no proof of harm and up to 100,000 shekels when it is possible to prove harm and the publication was carried out with the intent of causing harm.
However, these legislations, the Sexual Harassment Prevention Law and the Privacy Law, do not provide an adequate framework, in my opinion, for the protection against virtual rape. The Sexual Harassment Prevention Law is comprehensive and more suited to the world of the Internet, but in my opinion the lenient punishment for the offense is not commensurate with the severity of the offense and the social and personal harm arising from virtual rape.
The Protection of Privacy Law also is not suitable because of its narrow applicability and the fact that the law holds only for personal information. Thus, for example, when a person hacks into another person’s computer and distributes debasing pictures obtained from this breach this person has violated this law, but when a person convinces another person, through pretense and deceit, to transfer information or to make information public, the law does not apply. Therefore, this framework is somewhat limited in the struggle against a broad phenomenon such as virtual rape, and this will be described at-length in a soon-to-be-published research.
On the basis of what is written here, the following question is therefore asked: What is the normative framework for the establishment of the offense of virtual rape, which, as aforementioned, constitutes a traumatic injury to the victimized women, which essentially does not lessen the sexual harm that occurs in the physical world?
From the information in my hands, and on this research basis, it appears that the Prosecutor's Office is also aware of the difficulty, alongside the lack of adequate legislation as a deterrent device. In the attempt to deal with the phenomenon, and as a result of it, the Prosecutor’s Office files overly stringent indictments, though they may not stand a judicial test, simply to exert pressure on the defendant to sign a plea bargain for a less serious charge.
If we truly want to combat the phenomenon, we must deal with it under an established normative framework suited to implementation in the virtual world, from the bridging over the gaps found in the framework of the simulated reality and/or the multiplicity of realities, and the application of the offense in the framework of the offenses of rape in the Penal Law, as well as under the definition of an indecent act, given the circumstances of the matter.
These statements were said on the basis of many years of experience in the virtual space and in the attempt to illustrate the extent to which the phenomenon of virtual rape obligates as serious a punishment as physical tangible rape. The facts prove that the social and legal conditions are ready for the application of this normative framework to the virtual world, and that the obligation of the law is to be unequivocal on the matter of virtual rape as a physical act, through the application, as aforementioned, under certain circumstances under article 350 of the issue of the offense of an indecent act.
As I understand, it is necessary to make the required changes in an amendment to the law, namely the offense of rape has gone through changes in the past decades, from the basing on the component of the use of force to the basing on the component of free consent. Thus it is necessary to perform an essential change in the foundations of the offense at this time as well.
As known, in the past, to prove the constellation of the components of the offense of rape, the accuser must prove that the rapist acted through violence and threats, alongside the rest of the components of the offense, and as a result of the constellation of laws. Today, under the change of the circumstances and a new environment, some of these components have been neglected, and the law must go through an essential change and as a part of the broader social changes.
The changes that the virtual spaces have created in society and in the ability to commit the offense also, in my opinion, obligate a change in the framework of the law, a change that will express the serious harm that can occur not only in the real world and through direct contact. However, until the legislature internalizes the need for this, the most effective instrument for dealing with virtual rape that occurs today is the broad offense of an indecent act, which can be easily tailored to sex offenses in the virtual space.
At the focus of this research there was the question on the matter of the possibility of the application of the offense of rape in article 345(a)(1) of the Penal Law as intercourse with a woman without her free consent, and that the nature of the discussion revolves around the question of the active deed of the offender, namely the “intercourse” – the expansion of the definition to causing rape appears in article 350 of the law that fundamentally seeks to expand the scope of this offense – as well as additional sex offenses.
Given that we have passed the question of the awareness of the space where the rapist is, as well as the issue of the multiple realities, as I understand it, it is possible to apply the article of the law, with minor changes, to the environment of the virtual space and with reference to the issue of rape in this space.
As I understand it, the goal of the legislature was to cope with progress and with the fact that new environments bring with them new coping that the physical world did not know about and that the expansion of the scope of the offense of rape beyond the boundaries of the physical world creates suitability for the new era.
It is necessary to understand that in a complex environment, in which the offender does not physically commit the act on the victim of the offense but rather causes the victim to do the sexual act on himself, as a result of the new era, the virtual era, the legislature is obligated to deal with issues of this type.
As I understand, one of the main problems in the coping with the phenomenon is the question of the multiple realities, and the coping in this “field” does not need to be included in the framework of the law, but in the framework of the legal proceeding itself. Examples of the proof of the awareness of the virtual rapist can be derived from other behaviors he commits at this period of time when he committed the offense of rape; for example, a telephone conversation, an email sent, and so on are actions that prove his awareness of the environment in which he is found.
In actuality, the term “virtual rape” does not necessarily note the action (the deed) but notes the Internet violence exerted against the rape victim – online activities that fundamentally are harmful to another through the use of a connectivity device and/or network (or non-network) technology and as a result the legislature is obligated to make the necessary adjustments and to include the offense of rape in the virtual space in the framework of the Penal Law, under the offense of rape, article 345 of the law.
To illustrate these statements and how much the honorable Court needs the legislature’s help, the Tel Aviv Magistrate's Court determined on the issue of a film clip that documents consensual sexual relations (the year 2010) between a couple that was posted on the Internet without the woman’s knowledge that this constitutes defamation. Judge Hana Yinon wrote in the ruling that:
“I believe that in the publication of the film there was defamation that humiliates and debases the plaintiff, since the plaintiff, who is a pretty girl, a beginning model, is presented to the eyes of all when she is making love with her former partner, when her face is exposed and her body is naked and her private parts are revealed to all, and in my opinion this can humiliate, shame, and debase her in the eyes of people, especially in the eyes of her family and friends.”
In case Different Civil Request 08/11646 the Honorable Judge Michal Agmon-Gonen wrote:
“The law can do very little with the speed of technological changes. This trial has been held relatively quickly, and still my ruling is given after a year. Now the appeal is in the High Court, and another three-four years will pass until the ruling. Until then, who knows whether the streaming technology will be at all relevant?”
I hope that my statements indeed will bring about the desired change in the laws of the State of Israel, in the issues of virtual rape, as well as in other/additional issues associated directly and/or indirectly with technology. Moreover, I hope that this article, as derived from my research, will strengthen the awareness of the constellation of offenses committed in the virtual space. As known, explanation is one of the means that create awareness, alongside the duty to report.
Dr. Roffeh Shani, Adv
Information technology and Computers crime Law expert
Web : www.roffeh.com
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· West's Ann.Cal.Penal Code § 261
· West's Ann.Cal.Penal Code § 646.9
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 The New Oxford Dictionary of English defines Internet as an international computer network providing electronic mail and information from computers in educational institutions, government agencies, and industry, accessible to the general public via modem links.
 For our matter, the computer is a system that integrates hardware and software, which includes a wireless and/or physical network card that enables connectivity to the Internet. In other words, this includes both tablets and mobile phones of advanced generations that can go on the Internet.
 Civil Case 11831-03-10 Confidential (forbidden to be published) v. Philip Coshmaro