Sex robots are here, but laws aren’t keeping up with the ethical and privacy issues they raise

Francis X. Shen
Associate Professor of Law, University of Minnesota

The robots are here. Are the “sexbots” close behind?

From the Drudge Report to The New York Times, sex robots are rapidly becoming a part of the national conversation about the future of sex and relationships. Behind the headlines, a number of companies are currently developing robots designed to provide humans with companionship and sexual pleasure – with a few already on the market.

Unlike sex toys and dolls, which are typically sold in off-the-radar shops and hidden in closets, sexbots may become mainstream. A 2017 survey suggested almost half of Americans think that having sex with robots will become a common practice within 50 years.

As a scholar of artificial intelligence, neuroscience and the law, I’m interested in the legal and policy questions that sex robots pose. How do we ensure they are safe? How will intimacy with a sex robot affect the human brain? Would sex with a childlike robot be ethical? And what exactly is a sexbot anyway?

Defining ‘sex robot’

There is no universally accepted definition of “sex robot.” This may not seem important, but it’s actually a serious problem for any proposal to govern – or ban – them.

The primary conundrum is how to distinguish between a sex robot and a “sexy robot.” Just because a robot is attractive to a human and can provide sexual gratification, does it deserve the label “sex robot”?

It’s tempting to define them as legislatures do sex toys, by focusing on their primary use. In Alabama, the only state that still has an outright ban on the sale of sex toys, the government targets devices “primarily for the stimulation of human genital organs.”

The problem with applying this definition to sex robots is that the latter increasingly provide much more than sex. Sex robots are not just dolls with a microchip. They will use self-learning algorithms to engage their partner’s emotions.

Consider the “Mark 1” robot, which resembles the actor Scarlett Johansson. It is regularly labeled a sex robot, yet when I interviewed its creator, Ricky Ma Tsz Hang, he was quick to clarify that Mark 1 is not intended to be a sex robot. Rather, such robots will aim to assist with all sorts of tasks, from preparing a child’s lunch to keeping an elderly relative company.

Humans, of course, can navigate both sexual and nonsexual contexts adeptly. What if a robot can do the same? How do we conceptualize and govern a robot that can switch from “play with kids” mode during the day to “play with adults” mode at night?

Thorny legal issues

In a landmark 2003 case, Lawrence v. Texas, the Supreme Court struck down Texas’ sodomy law and established what some scholars have described as a right to sexual privacy.

There is currently a split among circuit courts in how Lawrence should be applied to state restrictions on the sale of sex toys. So far, Alabama’s ban has been upheld, but I suspect that all sex toy bans will eventually be struck down. If so, it seems unlikely that states will be able to wholesale restrict sales of sex robots generally.

Bans on childlike sex robots, however, may be different.

It is not clear whether anyone in the U.S. already owns a childlike sex robot. But even the possibility of child sex robots prompted a bipartisan House bill, the Curbing Realistic Exploitative Electronic Pedophilic Robots Act, or CREEPER. Introduced in 2017, it passed unanimously six months later.

State politicians will surely follow suit, and we are likely to see many attempts to ban childlike sex robots. But it’s unclear if such bans will survive constitutional challenge.

On one hand, the Supreme Court has held that prohibitions on child pornography do not violate the First Amendment because the state has a compelling interest in curtailing the effects of child pornography on the children portrayed. Yet the Supreme Court has also held that the Child Pornography Prevention Act of 1996 was overly broad in its attempt to prohibit “child pornography that does not depict an actual child.”

Childlike sex robots are robots, not humans. Like virtual child pornography, the development of a childlike sex robot does not require interaction with any children. Yet it might also be argued that childlike sex robots would have serious detrimental effects that compel state action.

Safe and secure?

Perhaps someday sex robots will become sentient. But for now, they are products.

And a question almost entirely overlooked is how the U.S. Consumer Product Safety Commission should regulate the hazards associated with sex robots. Existing sex products are not well regulated, and this is cause for concern given the multitude of ways in which sex robots could be harmful to their users.

For example, dangers lurk even in a seemingly innocent scene where a sex robot and human hold hands and kiss. What if the sexbots’ lips were manufactured with lead paint or some other toxin? And what if the robot, with the strength of five humans, accidentally crushes the human’s finger in a display of passion?

It’s not just physical harm, but security as well. For instance, just as a human partner learns by remembering what words were soothing, and what type of touch was comforting, so too is a sex robot likely to store and process massive amounts of intimate information. What regulations are in place to ensure that this data remains private? How vulnerable will the sex robot be to hacking? Could the state use sex robots as surveillance devices for sex offenders?

Sexbots in the city

Whether and how governments regulate sex robots will depend on what we learn – or what we assume – about the effects of sexbots on individuals and society.

In 2018, the Houston City Council made headlines by enacting an ordinance to ban the operation of what would have been America’s first so-called robot “brothel.” At one of the community meetings, an attendee warned: “A business like this would destroy homes, families, finances of our neighbors and cause major community uproars in the city.”

But dire predictions like this are pure speculation. At present there is no evidence of how the introduction of sex robots would affect either individuals or society.

For instance, would a man who uses a childlike sex robot be more or less likely to harm an actual human child? Would robots be a substitute for humans in relationships or would they enhance relationships as sex toys might? Would sex robots fill a void for those who are lonely and without companions? Just as pilots use virtual flight simulators before they fly a real plane, could virgins use sex robots to safely practice sex before trying the real thing?

Put another way, there are far more unanswered questions about sex robots than there are actual sex robots. Although it’s hard to conduct empirical studies until sexbots are more prevalent, informed governance requires researchers to explore these topics urgently. Otherwise, we may see reactionary governance decisions based on supposition and fear of doomsday scenarios.

A brave new world

A fascinating question for me is how the current taboo on sex robots will ebb and flow over time.

There was a time, not so long ago, when humans attracted to the same sex felt embarrassed to make this public. Today, society is similarly ambivalent about the ethics of “digisexuality” – a phrase used to describe a number of human-technology intimate relationships. Will there be a time, not so far in the future, when humans attracted to robots will gladly announce their relationship with a machine?

No one knows the answer to this question. But I do know that sex robots are likely to be in the American market soon, and it is important to prepare for that reality. Imagining the laws governing sexbots is no longer a law professor hypothetical or science fiction.

It’s a real-world challenge that society is about to face for the first time. I hope that the law gets it right.

Republished with permission from TheConversation under commons license.