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Kate Parker
Kate Parker

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Welcome to the 5PB Blog where you can find comments and thoughts on current legal topics.

Towards a better robotics: sex dolls, consent and criminal liability

The Schools Consent Project is a charity which sends lawyers into schools to teach young people the legal definition of consent and key sexual offences, including 'sexting' and 'revenge porn'. As its founder, I'm occasionally emailed, tweeted or Facebooked (or, in the case of my mother, I return home to find Daily Mail clippings laid out on my bed) about a particular consent-related development: an odd ruling in court, a comment by a celebrity oblivious to its impact, etc. It is in this capacity that the 'Roxxxy' robot first came across my radar. Its creator, True Companion, is an artificial intelligence company in the US claiming to have invented the world’s first sex robot with a resistance setting. The development is uniquely sinister, and needs to be explored.

In our quest for technology to advance the human experience, tech companies have long since turned their expertise to re-creating sexual intimacy. The invention of the first commercially successful sex robot has been one battleground. A sex robot is an evolution of the inflatable sex doll; it is digitally engineered to look, act and communicate like a human being. Current market offerings are startlingly lifelike and increasingly accommodating of a buyer’s aesthetic preference. For the bargain price of $9,995, True Companion allows you to pick one of 73 hair colours in 39 styles, as well as eye colour, eyebrow colour, pedicure colour, skin tone, even the shape and type of pubic hair. Rival company Abyss Creations (which Jenny Kleeman reported on brilliantly earlier this year) developed a robot with special skin that makes a realistic spanking sound when hit. Some say these robots reinforce the objectification of women and the commodification of sex; others, that they allow otherwise isolated individuals to experience intimacy. Either way, Roxxxy is a different beast.

The robot has various settings allowing it to adopt different ‘personality types’ to cater to its users’ fantasies: the dominatrix, the barely-18-year-old, etc. So far, so predictable. The controversy lies in the ‘Frigid Farrah’ setting. In simulating resistance, it enables users to simulate rape. Of course, its creators wouldn’t describe it that way. It sounds awkward in the press release, and it alienates customers to suggest that they might be psychologically akin to serious criminals. On its website, True Companion explains that “Roxxxy […] is simply not programmed to participate in a rape scenario and the fact that she is, is pure conjecture on the part of others.” Indeed, she is designed simply to “provide her opinion or feedback, just as any person would on a date” and, as a result, “[she] can be used to help people understand how to be intimate with a partner”. But in case any prospective buyer momentarily thinks they have stumbled upon a sexual therapy e-learning centre, they are coyly promised elsewhere on the site that if they touch Frigid Farrah “in a private area, more than likely, she will not be to [sic] appreciative of your advance”. Intention aside, the effect of the setting is clear: (i) to withhold consent, and (ii) to appear as human as possible whilst doing so.

What’s the problem? It’s only a robot.

Roxxxy is of course only a machine: the sum total of an electricity current and her component bits of metal. But the fact that she is not a thinking, feeling human does not make her existence unproblematic. The robots normalise sexual violence. They service and provide a distraction for criminal impulses that should probably be subject to psychiatric intervention. They are premised on an inherent conflict: their raison d’être is to suspend their users’ disbelief to convince them that they are interacting with a real person (if not, why make the dolls so painstakingly lifelike?) whilst simultaneously trusting that their users are able to identify the moral and legal imperative to treat real people differently.

The unavoidable reality is that there exists a proven relationship between one’s behaviour and the type of content they are exposed to. For example, exposure to certain pornography is known to negatively influence the attitudes of young people towards sex. The robots go a step further: instead of mere observation, they demand a physical engagement from the user. All of a sudden, criminal liability is a less remote possibility. Swap robot for person, and this private sexual act automatically becomes a serious sexual crime.

It is not currently an offence to own a sex robot like Roxxxy. The law is often some steps behind the latest technological advancement. However, the causative link between exposure and behaviour is sufficiently well established that it already shapes our laws on pornography. A Home Office consultation paper called for tougher legislation in this area 'to protect society, particularly children, from exposure to such material […] which may encourage interest in violent or aberrant sexual activity.’

Under the Obscene Publications Act 1959, it is a criminal offence for pornography sites to publish content which is 'deemed to be obscene if its effect [...], taken as a whole, [is intended] to deprave and corrupt persons’. In its online charging guidance, the Crown Prosecution Service states that pornography showing ‘realistic portrayals of rape’ is frequently prosecuted save where it shows ‘actual consensual sexual intercourse’. Actors in rape porn always confirm that they consensually took part in the making of the film: their concern is their legal liability, not their viewer’s conscience. But these assurances might not be enough. Porn sites can still find themselves facing criminal proceedings for platforming content which is ‘explicit and/or lingering’ if it ‘indicate[s] to the viewer approval or encouragement of the behaviour involved thereby normalising the depraving or corrupting behaviours’.

Perhaps more surprisingly, it is an offence to possess non-photographic child pornography (i.e., computer generated images, cartoons, manga images and drawings) under section 62 of the Coroners and Justice Act 2009 - even where no children at all were harmed in its making. Critics claim that section 62 is our closest embodiment to an Orwellian ‘thought police’ crime. Maybe so, but its intention is clear: to circumvent the non-photographic pornography triggering a sexual interest in young people that manifests itself in more traditionally criminal ways (i.e., possessing child pornography or committing a sexual offence against a child). If the net of criminal liability is cast wide enough to encompass this kind of content, there’s a compelling argument to criminalise inventions like Roxxxy too.

How is this any different to consenting non-consensual role play?

Knowledge that one’s sexual partner is consenting is the crucial difference. Whether this consent is knowingly disguised or not, its existence enables some to take pleasure in the pain or restriction of their sexual partner (indeed, its existence is the very foundation of the S&M community). There must be a distinction psychologically between this - sexual pleasure derived from the joint pretence of overpowerment which is at all times mandated by the 'overpowered' person - and sexual pleasure derived from the actual overpowerment of a person. The robots are designed to ape the latter, and in doing so they condition the link between pleasure and a lack of consent.

In law, rape is the penile penetration by A of the mouth, anus or vagina of B, without B’s consent and without A’s reasonable belief in B’s consent. For a rape conviction, the Crown must prove their case beyond reasonable doubt. We may yet see a case where a defendant’s use of Frigid Farrah-type technology is advanced before the jury as evidence of his predilection for non-consensual sexual acts, thereby undermining any defence that they either didn’t have sex or that the complainant consented to it.

[My favourite:] Isn’t it sexist to allow women to indulge their sexual fantasies, and not men?

It has been suggested that there is an inherent unfairness in criminalising a product which allows some men to live out their sexual fantasies. We don’t criminalise women for wanting to take part in consensual non-consenting role play (i.e., a rape fantasy - if it wasn’t a contradiction in terms), so why not allow men equal free reign over their bedroom activity?

Firstly, these acts don’t divide neatly between genders. Women can use sex robots; men partake in role play. But the real issue is that these activities aren’t interchangeable, both because consent is the key difference (as argued above) and because fantasising victimhood is not the same as fantasising criminality. An equivalent to Roxxxy would be, for example, a kit enabling the user to anally penetrate a non-consenting male robot with foreign objects or a kit allowing the user to make a false rape allegation - perhaps complete with a police officer robot able to take a false witness statement. The first normalises conduct which constitutes the offence of ‘assault by penetration’ under the Sexual Offences Act 2003; the second, conduct which would be charged as ‘perverting the course of justice’ under common law. The examples are extreme. The point remains. Only products which foster the same consent-blind, pro-criminal sexual behaviour are equally harmful, and should be outlawed accordingly.

The sophistication of the design and technology behind Roxxxy marks a step forward for robotics. For human society, it’s an unquestionable regression.

This is the original of the article published in The Times and on Vice.

Posted by Kate Parker on 06 September 2017 at 13:52