I think that some of you may have a grudge against me after this, so I’m sorry in advance. I was thinking if I should publish it at all, but Devs most likely do not have a legal team like Rockstar (at least not yet). So I decided to share a little knowledge and opinion. I hope that can be of some help. I tried to make it simple, but some people still can get a headache reading that. Of course that is not legal advice or legal opinion.
To Devs,
Written as of v. 0.11b.
I think that after being finished the game has a potential to become quite popular (with luck or a good advertising campaign). But with popularity also comes the attention of authorities and possibility of ban. I’m sure that you are aware of that, and that you correctly paid attention to three most dangerous issues in accordance with legality. It even looks that you may have some kind of legal advisor or quite high legal awareness yourself about some issues. However I think that on the grounds of my country's law some things still may be hard to defend.
Context
I'm from Poland (a country in the EU) and Polish law is a continental law (this kind of legal system exists in all EU countries, except Ireland), not a common law (this kind of legal system exists mostly in anglo-saxon countries and some of their former colonies). Simplifying, in continental law you concentrate more on the written law in acts, not on the court judgments and it’s not possible to translate perfectly legal terms from it to English (nor I claim that I translated it the best possible way, cause that’s hard and time consuming and british and americans terms differ between themselves), so on some things you need to trust me or hire a legal advisor and check for yourself. My country prefers to limit the content of games (e.g. it's not possible to play in gambling minigames in game GTA Online in "The Diamond Casino & Resort", if you are from Poland) rather than banning games, but Desert Stalker has a chance for a ban.
While being banned in one country may be a good advertisement, it’s not what fans from the banning country want and, in this case, it may cause an avalanche of bans in different countries. Especially because Poland has yet to ban any game (RapeLay from 2006 was simply unavailable in Poland, not banned, I think). So ban in Poland would be an argument for enemies of the game that game should be banned in their country too (any enemies of this game from different countries may pressure their respective authorities to ban Desert Stalker, while adding an argument that even in Poland, a country that didn’t ban any game till now, it’s banned).
1.Around "the rape issue":
Let’s start with the less dangerous thing, which can be seen by some as bullshit, that you may be forced to deal with after your game becomes popular.
You put disclaimer that all acts are consensual, which is good.
What is not good is that in some scenes women do not even have a chance to agree for the act prior to the act.
Imo the biggest issue is with
. That is not a rape, but it may be seen as in line with article 198 or 199 § 1 of Polish Penal Code:
Who is taking advantage of the helplessness of another person to have sexual intercourse or to submit to another sexual activity or to perform such an activity, is punishable (based on art. 198 of Polish Penal Code).
Who is taking advantage of critical position to leads another person to sexual intercourse or to submit to another sexual activity or to perform such an activity is punishable (based on art. 199 § 1 of Polish Penal Code).
Showing something like this
in game is not a problem in itself, but presenting a positive feedback/opinion about it is, because:
Who publicly approves the commission of a crime, if the scope of the act or its effects were not significant is punishable (based on art. 52a of Polish Petty Offences Code).
Of course approval is stated by characters in the game. However, what is shown in game may be seen as yours (Devs) artistic expression to show your approval. Showing that both MC and Kyra are ok with it, may be seen as your (Devs) positive feedback/opinion about it. Of course showing that she does not like it is even worse, as it may be seen as rape in some countries.
Anyway, even prosecutors should not try to prove that you gave your approval intentionally. However it’s possible to commit unintentional (summary) pretty offences in Polish law.
An unintentional (summary) pretty offence occurs when the perpetrator, having no intention of committing it, commits it as a result of failure to have the caution required in the given circumstances, despite the fact that the possibility of committing this act was foreseen or could have been foreseen (based on art. 6 § 2 of Polish Petty Offences Code).
You may think that this could not have been foreseen.
However, the moment when you would be seen as a professional, simplifying it, the moment you start to sell your game in Poland, you will be expected to know Polish law and caution required from you as well as ability to foresee will be judged by higher standards.
While having a criminal trial or getting lawsuits (unlikely, if the game doesn’t pass a certain threshold of popularity) can be a good advertisement, it’s better to ensure earlier that you have a good chance of winning.
That being said, I think that going with the least possible changes to prevent possible unfavorable legal fight in the future would include
that would cause that he’s not taking advantage of her (he’s not taking advantage of her helplessness or critical position in this case).
Phew … that was a less critical issue, that you can also gamble to solve by only your (Devs) statement placed e.g. in the game, that you condemn acts like this etc.
Now, critical issue:
2. Young women issue:
This issue is more dangerous, both for you and for players.
You stated that all characters are at least 18 yo, which is good. However in Polish law it’s important not only how old the presented characters are, but also, how old they look.
Imo all presented characters look at least 18 yo, but I’m not a specialist in this field (physical development of women by age) and I’m willing to assume for possible that some specialists may judge that one of the characters looks less than 18 yo.
And that would be a disaster for your game, because of Polish law:
Who produces, distributes, presents, stores or possesses pornographic content presenting a created or processed
image of a minor participating in sexual activity shall be subject to penalty. (based on art. 202 § 4b of Polish Penal Code).
The key word here is an “image”. That means that character can be even 80 yo, but if he/she looks less than 18 yo, you (Devs and players) committed an offence. That art. applies to players too, because of the term “possesses”. If you have a game on your hard drive you possess it. You do not need to be an owner.
(( Digression
for my countryman (
Poles):
Some japanese or japanese inspired games may contain images of a minor participating in sexual activity. The safest way is not to play this kind of games, but if you really want, at least ask devs or gamers if that kind of content is in it. Of course I know that it’s quite obvious that you delete the game after you finish, because why keep it on your hard drive, while you need space for new games? And I heard that it's good to deeply clean your hard drive, browsing history etc. from time to time for performance, I think? ))
Art. 202 § 4b of Polish Penal Code is very dangerous for you (Devs), because you are not the only people that can be targeted by it. And you can not be sure when and where any of your players may get a criminal trial against himself. Funny thing is that a lot of players could get a criminal trial at the same time and your legal team would not be able to help all of them. If any of the players would lose a criminal trial that could be used by authorities as a valid reason to ban your game and for players to sue you.
Proposed solution:
The solution is to prove that all characters look at least 18 yo. So you need a lot of opinions from specialists (in the field of physical development of women by age) that your characters look at least 18 yo. I think that professors of medicine/biology that specialise in this field are a good call. If you do not have access to them, doctors and biologists should do, or anybody that can be seen as a specialist for now.
If you would be close to release date (and you would manage to save some funds), I think that asking for/(buying) some favorable opinions from professors of medicine that specialise in this field is not as stupid as it sounds.
The collection of opinions with justifications place at your website or any place that can be accessed by anybody interested. Give information in the game that you made every effort to ensure that all characters look at least 18 years old, which is confirmed by the opinions of specialists (address for opinion included). This is all to discourage prosecutors from starting criminal trial. Even in case of trial opinions would come in handy, as it can be presented to the judge. Of course, knowing the practice of the courts in Poland it is quite likely that the judge would ask the court specialist from the relevant field for opinion. However the judge is not bound by the opinion of the court expert. And when he has a lot of opinions from distinguished specialists from all over the world it’s very likely that he would judge according to them, no matter what the court expert opinion would be.
I admit that as of now I do not see a good solution that does not require quite a lot of commitment. But some folks here are quite intelligent and maybe they would get a better idea.
While you may think that is too much (and I hope that you are right), I do not recall any widely known game, where are characters that looks less than 20 yo in sexual act. And I think that is for legal reasons …
Like any first person shooter?
