Upon consideration of the facts as presented by Jenny, I would argue that are two causes of action; one in criminal law and one in civil law. Jenny can pursue both causes of action together or either one separately.
First, Jimmy’s actions are a violation of the criminal law; however not for the crime of rape. Rape is traditionally defined as the “unlawful carnal knowledge of a woman by a man, without her effective consent” (LaFave, 2000). Accordingly, under the law rape requires sexual intercourse. While the actions of Jimmy’s avatar are obscene they cannot be consider a rape of Jenny because there was no sexual intercourse. Moreover, the actions can’t be considered a rape of Jenny’s avatar because both avatars are not human. Despite there being no rape, Jimmy’s actions may nonetheless violate the Computer Fraud and Abuse Act (CFAA). The CFAA states in relevant part that it is a crime to intentionally access a computer “without authorization” or by “exceeding the authorized access” for certain purposes, including but not limited to “obtaining information” form a “protected computer” if doing so incudes “interstate or foreign communication” (Kerr, 2009). It is important to note that the requirements of the CFAA have been broadly interpreted (Kerr, 2009). For example, “obtaining information” has been interpreted to mean loading a webpage; “protected computer” has been interpreted to mean any computer connected to the Internet; and “without” or “exceeding” authorization has been interpreted to mean in violation of a website’s Terms of Service (Lessig, 2013). I believe that under the CFAA, we have a strong case against Jimmy’s actions. He not only violated Linden Lab’s User Agreement to obtain information (finding Jenny’s avatar status from Linden Lab’s database) from a protected computer but also did so via interstate communications.
Second, I also believe that Jenny has a civil cause of action in tort law. If she decided to pursue this cause of action, however, she will have to do this herself. Under tort law, I believe she can sue Jimmy under intentional infliction of emotional distress, trespass to chattels, and conversion. Unfortunately, without more information, I do not think that she has a cause of action against Linden Labs. Intentional infliction of emotional distress occurs when the extreme and outrageous actions of the defendant are made with the intention of making the plaintiff suffer severe distress and actually causes sever distress (Glannon, 2000). Here, there is no doubt Jimmy’s actions are intentional and outrageous. If Jenny can show that because of the actions she suffered severe emotional distress, such as it caused her so much distress she reported it to the local DA, then she should be able to prove her cause. Trespass to chattels requires an intentional action by Jimmy that interferes with the Jenny’s right to possess her property and causes damages (Glannon, 2000). Under the law damages has been interpreted to mean the plaintiff’s loss of ability to possess her property. In this case, the avatar was clearly Jenny’s property, especially considering the amount of money Jenny spent on developing it. Moreover, Jimmy’s actions were intentional and interfered with Jenny’s ability to possess or use her avatar, at least during the time that it was under Jimmy’s control. Lastly, the tort of conversion occurs is a defendant intentionally and substantially misuses the property of the plaintiff. Substantially here refers to having control or dominion over the property (Glannon, 2000). Here, as mentioned, there is no doubt that Jenny’s avatar was her property. Additionally, Jimmy’s had control of Jenny’s avatar at least for the time it took her to go from New York to Ohio. While the avatar was under Jimmy’s control, he could make it do anything that he wanted it to do. Moreover, during that time, Jenny did not have any ability to control it. If Jenny successfully raised her tort claims, ask the court to award her reasonable punitive damages. Moreover, she could also ask the court, under conversion, to have Jimmy return control of her avatar back to her as well as an amount equal to the fair market value of the avatar.
References
Glannon, J.W. (2000). The Law of Torts: Examples and Explanations. New York, NY: Aspen Publishers.
Kerr, O. (2009). Computer Crime Law (2nd ed.). St. Paul, MN: West.
LaFave, W.R. (2000). Criminal Law. St. Paul, MN. West.
Lessig, L. (2013, Jan. 16). Aaron’s Law: Violating a Site’s Terms of Service Should Not Land You in Jail. Retrieved on April 21, 2015, from http://www.theatlantic.com/technology/archive/2013/01/aarons-law-violating-a-sites-terms-of-service-should-not-land-you-in-jail/267247/
