Why We Allow Erotic Roleplay: The Legalities of Smut

A primer on age restrictions and how Iwaku's policies for sexual content relate to US law.

  1. Astaroth
    Iwaku is not an E-RP site like House Eros or Blue Moon (or even adult-oriented, like Elliquiy or Guilty Pleasures), but we do allow sexual content- with some very firm restrictions, for very good reason. In this PSA, we will be addressing various legal issues about writing roleplays containing or even focusing on sexual material. Hopefully we can dispel a lot of misconceptions and resolve some confusion about what is and isn't a problem, as well as explain why Iwaku has its current policies.


    "PORNOGRAPHY" AND OBSCENITY LAWS


    Iwaku is a 13+ site, not an 18+ site, so the question of exposing minors to sexual content often comes up in relation to our Red Star and Blue Star Bedrooms. (These are Iwaku's sections where sexual content is allowed in roleplays, named for the red and blue stars on the forum's member cards that differentiate age groups. Until recently, they were called Libertine/Liberteen. These forums are age-locked according to account age.)

    Legally speaking, the term "pornography" generally applies to visual media only. That means images or videos. Written fictional content is not considered pornography, no matter how explicit it may be.

    Written material MAY be considered obscene, and thus be subject to obscenity laws which restrict both visual and written material from including basically anything the public would consider objectionable and/or "incite prurient interest" (read: sexual material).

    HOWEVER.

    These works are protected if they are judged to be products of artistic expression. The precedence for this dates back to cases like one in 1964, when the infamous novel Tropic of Cancer was ruled non-obscene by the Supreme Court. The book is chock full of filthy descriptions and is frankly terribly written and aptly-named because it is cancerous, but it is considered literature.

    This is the reason that in the US and many other countries, anyone under 18 can legally buy books such as Tropic of Cancer, 50 Shades of Grey, or any other book containing graphic sex scenes. There is no US law prohibiting minors from purchasing, reading, or even writing erotic fiction. Many merchants will refuse to sell such books to young minors, but it varies from book to book and from store to store, and it has nothing to do with legalities; it's all company or store policy. For further example: If a mother hands her 13-year-old daughter a copy of a romance novel, she is not doing anything legally wrong even if it contains graphic sex scenes.

    Certain material is nonetheless sometimes considered obscene and is not protected. Among other things, this applies to detailed depictions of necrophilia or sexual abuse of children under 13.

    Here's what we can take from this:

    1. The reason we have an age minimum of 13 for characters involved in sexual scenes is because anything under 13 (the average age at which characters have hit puberty) would definitely be legally considered obscene material. (Also, it's fucking gross.) This rule is also intended to allow teen members to write about characters their own ages, and allow both teens and adults to write under the consideration that teenagers do in fact have sex in real life.

    Anyone who is found to be writing or soliciting for RP involving characters under 13, or who consistently is roleplaying scenarios where characters are the bare minimum age (especially if the roleplay focuses on the characters being children or on themes of pedophilia), will be banned and reported to the cyber crime authorities with extreme prejudice.

    2. It's not illegal for minors under 18 (the federal age of consent) to read and write fictional literary material that contains sexual content. Sharing fictional literary material which includes sexual content with minors is also not considered corruption of minors because this content is neither illegal nor pornographic. (Unless it falls into the category of obscene material.)

    We do, however, restrict adults and minors under 18 from roleplaying such things outside of their own age group, and I'm going to explain why.


    ONLINE COMMUNICATIONS AND E-PUBLISHING


    As an online community, Iwaku must keep up not only with obscenity and pornography laws, but also with laws governing online communications.

    Back in the 90's with the big internet porn boom, a bunch of people tried- and temporarily succeeded- in making all online references to "indecent and obscene" content illegal. This included everything from using the word "fuck" to medical information about sexual organs simply because people under 18 might see it. After going to federal courts, this was eventually ruled in violation of the First Amendment and was modified to only uphold restrictions on obscene content being visible to minors (i.e., pornographic images/video or the aforementioned qualifying written material).

    But one thing that did come about because of this act- called the Communications Decency Act- was Section 230. This part was also upheld. According to Section 230, "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider". In other words, forums and other users on said forums are not liable for what one person does even if they don't do anything to stop said person prior to receiving notice of the infringement. This is why so many cases of copyright violation, for example, are let go until someone makes a fuss.

    Now, an internet forum is not considered a publisher. But anywhere on the internet can be considered a publication platform; the user is considered a "self-publisher" of all their own content. This is how people can prove ownership of intellectual property when posting art or literature on a forum, even if they haven't officially copyrighted their work.

    Essentially:

    1. Iwaku is not considered liable for the actions of its users, unless and until we fail to act on a report of illegal activity. This is good news, in that Staff and web hosts can't get sent to jail if people are doing shit they aren't supposed to and we don't know about it! If we receive a report, though, we are obligated to do something about it by law. And we will.

    2. Even though your work is not officially published in a book or literary magazine, it is nonetheless protected by the First Amendment and has all the same liberties for creative expression. You're all good unless you're writing stuff that can get you jailed offline too.

    But wait, I hear you say, you still haven't covered the reason for separating age groups! Why is it a problem if it's all just creative freedom? WELL...


    CYBERING AND AGE OF CONSENT LAWS


    In the US, federal law dictates that minors under 18 cannot give legal consent for sexual acts. State laws vary though, with places 18+ actually being relatively few in number; most states set the bar at 16. Many states also have "Romeo and Juliet" laws that protect teenage couples with slight age differences from suddenly being sex offenders when they have a birthday, or allow minors of similar age to consent to sex with one another; the age ranges and specifics vary from state to state.

    However, Iwaku has to go by the location of its server. In Iwaku's case, that is Illinois, where the age of consent is 17. Their Romeo and Juliet guidelines still criminalize sex between teens 13+ (but under 17) and partners who are within 5 years of age, but basically it ends up being on the same level as public intoxication because it's a misdemeanor.

    Anyone who has sexual contact with a minor under 17, then, may be guilty of sexual assault, criminal sexual abuse of a minor, or other sexual misconduct depending on the nature of the contact and depending on the age gap. Sexual contact involves physical contact with a minor. Actual touching. That's not something we have to worry about on a roleplay forum, though.

    Unlawful contact is what we deal with online. It's also what gets people in trouble when it comes to sexting. This involves talking to a minor. It may be soliciting them for sex acts, sending them dirty pictures, or actually having cyber sex (describing or roleplaying theoretical sexual actions they would like to perform with the minor).

    This is where the line gets blurry and why we have to be very firm about age lines and do not allow cybering at all.

    Unlike a story with one sole author, roleplaying is back-and forth between two or more people. This means that the biggest difference separating it from cybering is that it is a story. Roleplays that devolve into one-liner descriptions of sexual acts and do not exist as part of a larger story, then, constitute cybering. And THAT can get you in legal trouble if your partner is a minor.

    What investigators will look for when determining if a roleplay is cybering or just storytelling is how the roleplayers interact out-of-character. Making sexual remarks to and attempting to meet up offline with a minor is actually far more dangerous legally speaking than roleplaying and WILL get you in trouble with authorities, whether you're writing sexy roleplays or not.

    Now, unlike some states, Illinois DOES allow a mistake-of-age defense. If a person has good reason to believe that the minor in question was over 17 and can prove that in court, they can be found not guilty of sexual or unlawful contact.

    What all this means:

    1. If you're just writing and not also hitting on your partner or making it about yourself and your partner rather than the characters, you're not going to get in legal trouble if they're a minor. Just don't hit on minors or try to meet up with them on the internet.

    It's because of this blurriness, though, that we have deemed it safest to not only go by FEDERAL law but to restrict sexual content between adults and minors entirely. It saves EVERYONE a lot of trouble and helps prevent minors from being taken advantage of by actual sexual predators who lure them through roleplaying, or adults from being caught in legal hot water by misunderstanding. You might not think it's a big deal, but you are being an asshole with no regard for other people if you break our age rules.

    We want everyone on the site to have creative freedom and be able to explore sexual themes in a safe environment, so we do what we can within the bounds of the law. Do not abuse that.

    2. If they are a minor and you didn't know, you do have a reasonable defense. They are the ones who lied about their age on their account. You had every reason to believe they were 18. You will likely not even be charged; they may be of age in their own state, or their parents may not wish to press charges (there was one memorable time for Iwaku Staff where one member's dad contacted Diana and not only reported his daughter but apologized for her behavior), or the authorities may not deem legal interference necessary. Many teenagers "IRL" have sexual relationships with other teens or even young adults that are technically illegal, but no charges are pressed. (Sexual consent laws were devised in the first place to stop predators, not to penalize teenagers; that only started happening when people started trying to crack down on teen pregnancy in the 90's, which is when all the Romeo-and-Juliet exceptions had to be put into place to keep young people from getting, well, screwed.) Many parents and law enforcement will look the other way when it is clearly not a predatory case.

    Ultimately, though, we cannot always verify that account ages are accurate or that you won't get ROYALLY BONED if they're not. The most common reason we ban people is for lying about their age, even though there is no real reason for them to lie. If you want to include sexual content in your roleplays, you are going to have to live with the fact that you chose to put yourself at some small level of risk. My advice is just don't do it unless you know for sure that they're of age, but I know that won't stop most of you. Just be careful, be safe, and don't be stupid.


    AGE VERIFICATION AND ENFORCEMENT


    The flip side of the coin is that minors who lie about their age to roleplay across age lines will get banned if we find out, because they are putting the community at risk as much as the creeps.

    Just like any responsible party host would card young guests they didn't know to see if they were old enough to drink, Iwaku can and will card you if we suspect you're lying about your age. (Of course we take precautions for your sake; we ask that you cover all info other than your photo- just so we can compare it to a picture of you holding something with your username written on it- and your birth date.) There are no laws saying we can't ask to see your ID. Legally, you don't have to show it to us, but we are a private site and we can refuse you service by banning your ass for any reason we like, including declining to show us ID or otherwise prove you're the age claimed on your account.

    (The only legal restriction on asking for ID is if you're under 13 and we knowingly ask you to provide personal identity information, but we don't allow users under 13 anyway and they're not going to have photo IDs in the first place. We also generally assume people are at least 13, since it is part of the Terms of Service that they must be in order to join, and if we have reason to believe they're younger we're just going to ban.)

    We realize that more people than you might think do not have photo IDs, which is why (aside from the obvious privacy reasons) we do not make it a requirement for most members in order to access the age-locked sections. But basically, if you fuck up and we think you're not the age you claim and you can't prove you are, them's the breaks. Community safety trumps all; we can't chance it. You can always come back if and when you obtain ID.


    LEGAL CREDENTIALS AND COVERING OUR ASSES


    I am not a lawyer or legal expert by any means, but I've done thorough research into all of the legalities outlined here, as has Diana before me. I have been Staff on Iwaku since 2011 and Admin as of December 2016, and Diana was Admin c. 2009-2016 and before that, she ran other roleplay sites. She currently is working on opening up an actual 18+ adult-oriented roleplay site called AMOR. Diana has talked with a lawyer who specializes in net policy to verify that we do things within the bounds of the law, and she has contact info for another lawyer in case anything does go wrong. We have also cooperated with undercover police and federal agents in the past on multiple occasions, and one of them praised Diana for doing things right when it came to our policies on sexual content.

    Feel free to cross-check any of my information or to ask questions if you have any further concerns about the pitfalls of dirty, dirty online smut.