Virtual Reality and Criminal Law
Virtual Reality (VR) and, now[i], Augmented Reality (AR) are inexorably influencing modern life.[ii][iii][iv] Augmented Reality splits one’s attention between the world around them and a virtual world overlay, conversely we react to VR by ignoring the real world entirely, in favor of the world we experience inside a headset. VR is both controlled and experienced by the movement of the human body, head or eyes. A VR user can move or look around and interact with images, sounds and other sensations.
AR supplements a plane by overlaying computer-generated features over our real world,[v] this technology at its pinnacle confuses the real and overlaid digital world. Simply put, AR enhances reality while VR replaces reality with a simulated landscape. Further AR has been coupled with VR in what is being coined as “Mixed Reality”.[vi] Both have been recognized as useful in aiding understanding in Criminal Law.
VR headsets from Virtual Rehab have been distributed to inmates Colorado’s Fremont Correctional Facility in order to facilitate their early release.[vii] The technology allows them to prepare for life out of custody by virtually doing laundry and grocery shopping. Virtual Rehab “leverages the advancements in virtual reality technology along with artificial intelligence to prevent and to treat patients with substance use disorders along with rehabilitating repeated offenders”.[viii] Their philosophy is that “Every person in life deserves a second chance”.[ix] The strength of VR is that it helps people know what to expect when they’re expecting release. Virtual Rehab wishes to develop “improved citizens” upon release”.[x] These developers recognize that people cannot live their desired life if they do not know how; this technology allows people to learn this virtually. VR and AR may carry unique educational capacity for unconventional learners. Virtual Rehab boasts about cost saving, citing that the 10.5 million global imprisoned population cost approximately 32.3 Billion CAD annually, not to mention the tremendous cost to inmates and their loved ones. Virtual Rehab states “prison does not teach one how to be a better version of themselves, just not to get caught”[xi] and inmates are to develop four major skills: formal education; vocational job training, psychological and correctional services rehabilitation.[xii] Cognitive behavior therapy, a widely used therapeutic technique used to treat offenders, can be improved using VR and with current limitations on resources, VR can offer criminal justice practitioners another option for offender rehabilitation.[xiii] Produced is, correctional and psychological healing: inmates can connect psychologically and physiologically with the outside world which remaining physically isolated. Prisoners can see themselves out of custody, which builds confidence and opportunity for the individual to actualize as a member of the community vis a vis a criminal. Inmates find their landscape defined by, often, the worst thing they’ve done, virtual experiences afford a more comprehensive self-realization. Although this has not found a place in the Canadian Justice System, a similar program could be employed to with respect to Parole Eligibility and/or Sentencing.[xiv]
Section 718 of The Canadian Criminal Code establishes the purpose of sentencing:
The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
As stated, the fundamental purpose is that there be “respect for the law” and the maintenance of a “just, peaceful and safe society”.
VR could be used to fulfill 718(b) – deterrence, by providing the skills and confidence to operate out of custody allow individuals to avoid the situations that may have resulted in their imprisonment. An outside world sensory experience may also instill familiarity and empathy for those around them. The Criminal Justice system punishes people for their conduct in society by removing them from it, and therefore, stifling their understanding of it and, potentially, empathy for it. People are less likely to engage in anti-social behavior in settings they know and can thus learn to trust. Although, the technology may make the inmate long for life outside and therefore may more acutely accomplish general and specific deterrence, deterrence needn’t be solely about learning a lesson or punishment, it can be about leaving custody with a lower propensity to commit crime than on arrival. If VR can do that by bettering those serving sentences, vis a vis a more draconian punishment, it serves greater purpose. 718(b) and 718(d) cannot be disentangled as the way we rehabilitate a given offender is very much the same way we deter them from engaging in further criminality. 718(c) is neatly satisfied by use of this technology, inmates are separated from society, any untoward influence on society that might be imposed by the inmate is precluded, while the learning and understanding about society can occur to the extent to which virtual learning is possible. Effective rehabilitation pursuant to 718(d), is seen by some courts as requiring an acceptance of responsibility, likely by way of a Guilty Plea, and an understanding of the harm done.[xv] I find this to be a limited understanding of criminality and the causes of anti-social behavior, accepting responsibility for one crime shifts the blame wholly onto that person without necessarily providing a mechanism to change that person or their behavior, more important in rehabilitation is not responsibility for past acts but instead engendering responsibility for future acts. VR gives inmates newfound control over their outlook, they can virtually see a trajectory before them, allowing them to break from the past. On sentence, with Judges aware of the potential rewards of VR and AR, an “offender’s positive potential for rehabilitation” should be to the benefit of the accused on sentence.[xvi] VR satisfies the purposes of sentencing by helping inmates build the confidence they need to thrive in their new surroundings. Our Courts recognize that there are not “one size fits all”[xvii] penalties and are encouraged to fashion an “individualized”[xviii] sentence that best achieves sentencing goals. It is incumbent upon the Parole Board and Sentencing Judges to adjudicate the potential benefits of this technology. Without this virtual perspective those in custody have few resources to understand what to expect when they’re expecting to be released.
Courts may prove slow to adapt to the notion that achievements in the virtual world ought effect outcomes beyond it. Courts treat discreditable conduct in the virtual world manifestly unlike similar behavior in the community. Indeed, one can safely go on a menacing criminal rampage without the slightest risk of being charged, as long as they confine it to a video game. This may change as VR technology develops; body suit technology is developing such that users can physically feel a punch or a kick.[xix] We draw stark legal lines between speech and conduct. Artistic virtual expression is not conflated with real acts. Is there harm committing an immoral virtual act and realizing satisfaction for it? Is that satisfaction in proportion to the realness of it? If it gets too real does it become distasteful? Many people cannot instantly separate their intellectual understanding of what is happening from different sensory signals from their body, and even for those who can, the body will not be ignored.[xx] The body “releases chemicals in response to perceived threats, pleasures, or opportunities whether or not the brain knows those things are not real.”[xxi] People in VR environments physiologically respond to actions done to them in VR. Subjects who see themselves getting slapped in VR respond with skin conductance and heart rate levels as if they were actually being slapped.[xxii] In VR are you can see and be seen, hear or be heard, but not be punched or caressed.[xxiii]
In 2007 German authorities began investigation into ‘Second Life’ where adult avatars were to be engaging in sexual acts with avatars seen to represent children, virtual child pornography is not illegal under US criminal law, but can render a 3 month to 5 year sentence in Germany[xxiv] and remains illegal in Canada.[xxv] These different legal standards are compounded with jurisdictional questions arising out of virtual acts on other’s sensescapes, such as: “what if the accused and victim are in different jurisdictions?,” these queries will challenge international legal institution.[xxvi] People kill and die in VR and as much as it may feel real, through mimicry, is not real. Will courts reward good acts in the virtual world without condoning bad ones?[xxvii]
Part of the institutional strength of our Court System is its predictability and gradual introduction of inputs that alter it. Canadian Courts once relied only on evidence produced orally or transcribed on paper, but now use audio and video exhibits to assist in adjudicating innocence. New technologies require a concrete understanding of effects on the compromise between mental & visceral and perception & experience. Courts must be cautious and be balanced in how they employ VR.
Virtual behavior will depend on whether the user believes they are being watched. Perceived consequences are important. So if they behave in VR will they in real life? Courts will want to unpack this relationship before rewarding or condemning virtual acts. Our behavior in virtual media will mimic that in real life to the extent that incentives and consequences align. Whether the behavior is perceived or be observed or recorded somehow and by whom, will modify the behavior. Behavior in an offline video game carries different incentive than a monitored inmate vying for early release. Virtual games produce a higher level of physiological arousal than those on a 2-dimensional screen.[xxviii]
VR and AR are proposed as a vehicle to transport juries, and tried or fact generally, to crime scenes. Even if this technology is produced and manipulated fairly, this raises issues with the relationship between experience and judgment. We base many rules on the distinction between the mental and the visceral, between things we perceive and things we experience.[xxix] VR projects have been used to engender empathy through diversity training that allows people to change their race or sex and see how others interact with them when they look different than they do outside of VR.[xxx]
Conversely, Sheriffs in Monmouth County, New Jersey and Sonoma County, California, are being trained at a facility that uses a virtual reality simulator to mimic high-pressure scenarios.[xxxi] VR used in weapons training and forensic investigation.[xxxii]
Researchers at the Institute of Forensic Medicine at the University of Zurich, Switzerland used the Oculus Rift to reconstruct crime scenes for jurors to be presented with at trials for the opportunity to walk through crime scenes.[xxxiii]
VR & AR technology could let fact finders get a greater feel for the distance and space, and elements or objects directly connected to the crime.[xxxiv] This technology could embolden understanding of triable questions regarding angles and impact points. VR could prove a cost-effective way of transporting students to the courtroom.[xxxv] Students at the University of Westminster learn about criminal law using VR and it has shown to considerable improve memory recall and interest, through its immersion.[xxxvi] These benefits might manifest in increased attention from Juries to issues to which VR technology draws the mind. Legal scholars question whether 3D image with presence, weight and texture, can help achieve a “fair trial”?[xxxvii]
The relationship between inmates and virtual reality dates to Plato’s Allegory of The Cave features a group of prisoners chained to a wall as they watch the shadows of the people and events around them. These shadows were created by figures passing in front of a fire behind the prisoners, representing only a glimpse into reality.[xxxviii] Plato contemplated whether the prisoners accepted the shadows as real beings or impostors of reality. Augmented and Virtual Reality can help us shed new light on certain evidentiary features. Some VR “experience” models allow users to remotely explore a crime scene, pick, up objects and “play detective”.[xxxix] This would contaminate the trier of fact’s role and obfuscate their judgment as they would play part in the investigation, making them a part of the investigation and exposing them to the same psychological inertia that lead to wrongful convictions The way that evidence is presented to a Juror in this case is non-linear, non-recordable and unpredictable. Immersion in scenes poses another emotional risk, the trier of fact is supposed to be neutral to the parties and situation to avoid biases and a personal understanding of what happens, by immersing them they might be exposed more so to these risks. The FBI has already used VR to enhance crime scene presentations and present them to jury.[xl] This evidentiary media is slated to increase emotional or visceral connection to the scene, potentially risking a more thoughtful understanding.[xli]
VR may show the scene would have appeared from multiple vantage points and open the trier’s mind to new possibilities or virtually experience the moment at which a catastrophic event took place. The technology can tell a story based on police records and witness statements and allow one to pause, rewind or zoom the scene by re-positioning their head. A greater concern is transparency, at the point at which the trier of fact is manipulating the evidence, we are unsure what exactly is being put to the fact-finder, let alone what they make of it. Kitchen Sink Studios allows lawyers to display important movements, usually no longer than 30-seconds, to a Jury based on police records and witness statements. Between 100 – 1000 hours can be spent creating one VR visual, this makes these re-creations costly.
Researchers at Stratfordshire University led by Caroline Sturdy Colls have used VR technology to reproduce crime scenes.[xlii] Juries are seldom permitted to visit crime scenes, with prominent exceptions of the O.J. Simpson Trial in 1995 and the Jill Dando murder trial in 2001 in the UK. VR and AR might help with some of the logistical problems normally associated with this perspective.[xliii] In the murder trial of Phil Spector in 2007, defence claimed that a large fountain near the scene caused a witness to mishear Spector confess. Using experiential audio and visual aides through VR might help a fact trier better understand the plausibility of an evidentiary inference. Photos and videos, may, intentionally or otherwise, unfairly draw or detract attention; additionally they have a limited or tunneled field of view. Ultimately the fairness of using this technology is contingent on how fairly it is programmed. VR is not merely a tool for looking at evidence, but creates an evidentiary world itself. The more specific or manipulatible the VR technology the more the programmer becomes a witness, or interpreter of evidence and the trier becomes involved in the inputs they receive. The more self-guided or non-linear the VR experience the less we know what has been put to the jury and the fairness of the presentation of evidence. Chowdhury proposes a more simplistic view of using 3D video and robots to take a 360° image of a crime scene which allows triers to experience the environment from multiple angles without being able to manipulate the environment. Some of the issues could be fixed by ensuring that what is seen by the trier of fact is identically displayed to counsel.
This new technology avails vantage points, we can see where person was standing,[xliv] in ID cases, that witness couldn’t possibly have identified an accused, mimic lighting and even the vision of the witness at the time. VR and AR can both enhance or pervert our understanding of evidence and offers a number of opportunities for rehabilitation as well as risks with respect to the presentation of evidence.
[i] Google Books NGram viewer: Augmented Reality’s representation in literature has been steadily on the rise since 1994
[ii] Sereno, David A. The Use of Virtual Reality in Law Virtual reality could revolutionize court cases “75% of Forbes Most Valuable Brands are involved with VR”
[iii] Chatwood, Robyn, Virtual legality: Virtual Reality and Augmented Reality – Legal Issues, Dentons, Feb 20th 2017. p. 6
[iv] See Moore’s Law re: development of computing processing power
[v] Perhaps most famously in mobile game “Pokémon Go”
[vi] Chatwood p.14
[vii] Dolven, Taylor and Fidel, Emma This Prison is Using VR to Teach Inmates How to Live on The Outside, Vice News, Dec 27, 2017
[viii] Virtual Rehab, Press Kit, February 2018
[xii] Lemley, Mark A. and Volokh, Eugene, Law Virtual Reality and Augmented Reality, forthcoming 166 U. PA. L. REV. (2018). Pg. 17-21.
[xiii] Ticknor, Dr. Bobbie, Virtual Reality and the Criminal Justice System: Exploring the Possibilities for Correctional Rehabilitation, Lexinton Books February 2018. p. 2-6.
[xiv] See R. v. Nasogaluak,  1 SCR 206 – for sentence reductions
[xv] R. v. Lee, 2011 NSPC 81 at 83 & R. v. Seguin,  OJ No. 5439
[xvi] R. v. Gouliaeff, 2012 ONCA 690 at para. 12
[xvii] R. v. Lee, 2012 ABCA 17 at para. 12
[xviii] R. v. M.(C.A.),  SCJ No 28, para 92
[xix] Chatwood p. 9
[xx] Lumley and Volokh p. 12
[xxii] Ibid p. 14
[xxiii] Ibid p. 18
[xxiv] Ticknor, Bobbie
[xxv] Cossman, Brenda Canada’s child pornography law has rightly been criticized for years, University of Toronto Faculty of Law, March 5, 2013.
[xxvi] See ‘Haptic Assault’ p. 40 of Lemley and Volokh
[xxvii] Chatwood p. 9 & p. 11
[xxviii] Calvert, Sandra and Tan, Sui Lan, Impact of Virtual Reality on Young Adults’ Physiological Arousal and Aggressive Thoughts: Interaction Versus Observation, 15 J. Applied Developmental Psych. 125 (1994)
[xxix] Lumley and Volokh p. 4
[xxx] della Cava, Marco, Virtual Reality Tested by NFL as Tool to Confront Racism, Sexism USA Today, April 8, 2016. (Here the messaging comes down to the programming vis a vis the medium)
[xxxi] Allison Hollender, Here’s How VR is Reshaping the Criminal Justice System, July 24, 2017. VR Scout.
[xxxii] Ticknor, Bobbie. Synopsis.
[xxxiii] Hollender, Allison Here’s How VR is Reshaping the Criminal Justice System, VR Scout. July 24, 2017.
[xxxiv] Lloyd, Chris and Barker, Phoebe, The Blog, Virtual Reality and The Law, Huffington Post Technology. Jan 24, 2017
[xxxvii] Silver, Lisa, The W(D) Revolution Seeing Justice Through the VR Lens. Oct 9, 2017 – discusses how VR can help with the principals of fundamental justice like a fair trial and the presumption of innocence
[xxxviii] Ticknor, Bobbie
[xxxix] Armstrong, Paul, Think you could convict a criminal using VR? You might soon, Forbes Magazine Technology, January 3 2018
[xlii] Chowdhury, Mahzeb, Virtual Reality Robots Could Help Teleport Juries to Crime Scenes, The Conversation, Forensic Sciences & Criminal Investigations, Durham University, August 26, 2016.
[xliv] Ticknor, Bobbie
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