The Law of Superheroes

by James Daily

  But if the victim did die, then the fact that they later return to life does not matter. The actus reus for murder is simply that the victim has died as a result of the defendant’s actions. The victim’s staying dead is not actually an element of the crime. This is probably the right result too, because unless resurrection becomes some kind of commonly available service, we don’t want the convictions of known murderers to be overturned because there’s been what amounts to a miracle.

  Resurrection isn’t the only comic book story element that is in play here. What about Multiple Man? Jamie Madrox has the ability to create duplicates of himself using absorbed kinetic energy. Does killing a “dupe” constitute murder? This one is a much harder call, especially given the fact that Madrox himself can “reabsorb” dupes at any time. The law currently has no mechanism for dealing with this kind of ability, but if we apply a “looks like a duck” analysis, it seems like someone else killing a dupe might well be found guilty of murder. Each dupe is said to possess all of Madrox’s memories up to the point the dupe was created, they are capable of independent thoughts and actions, including making more dupes, and can live separately from the original for an indefinite period of time. Furthermore, killing a dupe leaves a corpse, so it isn’t hard to see a prosecutor taking an interest in pursuing that case. Madrox himself might have an interest in that too, because if it weren’t murder, he would seem to be in constant mortal peril, as who’s to know which is a dupe and which is the original? If it’s open season on dupes, it winds up being open season on Madrox “Prime” too.

  Jamie Madrox, the world’s only literal one-man army. Peter David et al., Trust Issues, in X-FACTOR (VOL. 3) 9 (Marvel Comics July 2006).

  Deciding the dupes are people is not without side effects, however, both in criminal law and other areas. 8 For example, it’s an interesting question whether Madrox reabsorbing a dupe is itself murder. If the dupes control the process, then it would seem to be a form of suicide, which is generally legal. 9 If the original controls the process, however, then it’s arguably murder, except perhaps in the case of a terminally ill dupe being absorbed in a jurisdiction that explicitly allows assisted suicide. It’s not enough that the dupes want to be reabsorbed: “The lives of all are equally under the protection of the law, and under that protection to their last moment.…[Assisted suicide] is declared by the law to be murder, irrespective of the wishes or the condition of the party to whom the poison is administered.” 10

  Attempted Murder

  Attempting a crime, part of what are known as the “inchoate” (i.e., incomplete) offenses, is still a crime, and the punishment for attempted murder can be just as severe as for actual murder, though the death penalty is generally off the table. The layman’s definition of attempted murder is something like “trying to kill someone,” and that’s accurate, roughly speaking. But the technical definition is somewhat more precise. For example, one state statute defines attempted murder as follows:

  a. A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.

  b. It shall not be a defense to a charge of attempt that because of a misapprehension of the circumstances it would have been impossible for the accused to commit the crime attempted. 11

  What we have here is a rigorous definition for what counts as attempt and what doesn’t, as well as a provision that so-called factual impossibility is not a defense to a charge of attempt.

  Let’s break that down a bit. The mens rea for attempt is intentional. Fair enough. It doesn’t make sense to convict someone for trying to do something they weren’t actually trying to do. But the actus reus element is a bit more interesting. It has to be a “substantial step” towards the commission of that crime. Shooting at someone and missing would count under most circumstances. It’s even possible that lying in wait might work too, though the lack of any actual shooting would hurt the prosecution’s case. But buying a gun? Not enough. That’s a step alright, but it’s a perfectly legal activity in and of itself, and doesn’t constitute a concrete step towards a crime.

  But what if you shoot Wolverine? That’s not going to kill him. It isn’t even necessarily going to incapacitate him for all that long. Getting shot in the head in X2 seems to have knocked him out for a few minutes at best, and being completely incinerated by Nitro seems to have lasted for only a few minutes, hours at most. So can it truly be said that shooting Wolverine counts as a “substantial step” towards killing him?

  At this point we need to look at subsection (b). There, it says that it is not a defense that the act in question would not have accomplished the intended goal as long as the defendant thought that it would. Sneaking into someone’s home after midnight and trying to kill him by emptying a clip into his bed is still attempted murder if the defendant finds out after the fact that the intended victim wasn’t home. But if a defendant realizes that the person isn’t home and empties a clip into the bed out of frustration, that’s a different situation. If the defendant actually knows that what he’s going to do isn’t going to kill the victim, how is that a “substantial step” towards accomplishing the crime? Courts are generally looking for some action that the defendant believes will succeed, regardless of whether or not it could. Believing that an action will not succeed would seem to be a defense to an attempt charge.

  He gets better. Marc Guggenheim et al., Vendetta Part 2, Revenge, in WOLVERINE (VOL. 3) 43 (Marvel Comics August 2006).

  So turning back to Wolverine, the question becomes whether the person doing the shooting knows that Wolverine isn’t going to die as a result of being shot. If the assailant is someone who has just met him or is unaware of his abilities, he probably believes that shooting Wolverine will kill him, so the fact that it won’t will not serve as a defense. But if we’re talking about someone with whom Wolverine has tangled before, someone from the Brotherhood of Evil Mutants say, the bad guy should know quite well that anything he does isn’t going to kill Wolverine. As such, though any attack would definitely count as an assault, it would not count as attempted murder, because they knew they weren’t going to succeed.

  Assault

  Assault is another crime whose act element is implicated by superpowers. Most jurisdictions distinguish between simple assault and aggravated assault or between different degrees of assault. Simple assault is typically a misdemeanor, whereas aggravated assault is typically a felony. For example, here’s how the Model Penal Code defines simple and aggravated assault:

  1. Simple Assault. A person is guilty of assault if he:

  a. attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or

  b. negligently causes bodily injury to another with a deadly weapon;

  2.Aggravated Assault. A person is guilty of aggravated assault if he:

  a. attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or

  b. attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.12

  Thus, the same intentional act (causing bodily harm) is a misdemeanor if done without a deadly weapon and a felony if done with one. Two issues present themselves: (1) can superpowers count as deadly weapons, and (2) what about telekinetic or psychic powers?

  As to the first, Wolverine’s claws would seem to count as a deadly weapon, as would most of the gadgets ginned up by Forge and Batman. But in the end of the “Fatal Attractions” crossover in the early 1990s, Magneto stripped the adamantium from Wolverine’s skeleton, revealing that his claws are actually bone. Do they count as deadly weapons? The question here is whether a natural part of a person’s body counts as a “weapon” in terms of the law. If so, it’s plausible that any significant deviation from the human norm might lead to aggravated assault charges. This would include things like the Hulk’s strength and even
Cyclops’s energy beams. It seems plausible that a court might well find that they do count as “deadly weapons.” 13 The theory here is that assaulting someone with a weapon is inherently worse than assaulting someone barehanded for two reasons. First, weapons enable even ordinary people to cause serious harm. The use of a weapon greatly increases the stakes in any conflict.

  The second reason is related to the first. Using something other than one’s bare hands also suggests a different sort of mental state. Actus reus can sometimes act as a proxy for mens rea, the latter being more difficult to prove. A defendant who attacks with a gun wants to do more damage and has put more thought into doing so than someone who simply throws a punch. As most superpowered characters didn’t ask for their abilities—the vast majority were either born that way or were powered up as the result of an accident—it seems kind of unjust to hold them to a higher standard just because they can do stuff the rest of us can’t. On the other hand, superhero stories make much of the with-great-power-comes-great-responsibility idea. So ultimately, how a court would rule on whether assault by a superpowered individual constitutes aggravated assault per se would probably wind up depending on the facts of the specific case.

  Then there’s the issue of psychic powers, especially telekinesis. A number of superpowered individuals, including Jean Grey, Legion, and Magneto, can exert force on physical objects, including the bodies of others, without actually touching them. This ability can take a variety of forms including telekinesis and the control of magnetic fields, but they all have in common the mental projection of force. Although it might seem strange that a noncorporeal force could cause an assault, courts have recognized that even something as insubstantial as a low-power laser beam can cause an assault. 14

  Jean Grey demonstrates her powers of telekinesis by levitating two small objects. Due to the inflation of superpowers over the years, this display looks positively quaint by today’s standards. Stan Lee, Jack Kirby et al., The Uncanny Threat of…Unus, the Untouchable!, in X-MEN (VOL. 1) 8 (Marvel Comics November 1964).

  Another kind of psychic power is the manipulation of thoughts or memories. This is also arguably an assault, as manipulating someone’s mind necessarily requires manipulating his or her physical neurons. In the DC Universe, this process even leaves trace evidence in the brain, which has been used as evidence in court to prove psychic manipulation.

  Theft

  While we’re on the subject of superpowers being treated in unexpected ways, there are numerous characters whose powers have been stolen or removed by another, for example by the mutant Rogue. While this almost always involves some kind of assault, is it also theft? Comic book stories certainly use the language of theft to describe these interactions, but would they be viewed as such in the eyes of the law?

  So…workers’ compensation claim? Stan Lee, Jack Kirby et al., The Fantastic Four!, in FANTASTIC FOUR (VOL. 1) 1 (Marvel Comics November 1961).

  It’s actually hard to say. The actus reus of theft is the taking of another person’s property without permission. At common law there were a variety of different kinds of theft—larceny by trick, larceny by false pretenses, embezzlement, robbery, and the like—but they all have one common element: appropriating another person’s property. Which is where we run into problems, because the courts are pretty clear that while we certainly have an interest in our own bodies, that interest is not actually a property interest. 15

  Property is generally considered a “bundle of rights,” including the right to control and use the property, obtain any benefits related to it, transfer or sell it, and to exclude others from it, along with other more technical rights we will not get into here. We generally think that we have those rights in our own bodies, right? So why are our rights in our bodies not considered property rights? We have actuarial tables for how much losing an arm, a leg, or an eye is worth, so why aren’t they property?

  Largely because the courts, reflecting their perception of societal mores, are a little squeamish about assigning property rights in human bodies, in no small part due to the idea that recognizing such rights might create a market in human organs. Which is generally considered to be kind of gross. In addition, if we view the human body as being the property of its owner, we get into a pretty bizarre tax situation. For example, would the Fantastic Four’s gaining superpowers while in orbit suddenly become a taxable event? They’ve acquired new “property,” and those sorts of transfers or acquisitions generally require tax reporting. This does not seem to be the way that we want to go.

  But more than that, most people’s intuition seems to be that whatever our relationship with our bodies, the relationship is more significant than that of mere ownership. Spitting in someone’s face is somehow morally different from spitting on someone’s lawn, even if the monetary damages are both purely nominal. So “stealing” superpowers is probably better categorized as an assault than as a theft.

  Actually, compared to some real-life “experts,” this is pretty unremarkable testimony. Marc Andreyko et al., Psychobabble—Part Two: Mind Over Morals, in MANHUNTER (VOL. 3) 21 (DC Comics June 2006).

  Mens Rea

  As mentioned in the beginning of the chapter, the law already has a pretty sophisticated way of analyzing intent and mental states ranging from deliberate, intentional actions all the way down to consequences that, while not intended or even anticipated, should have been if a defendant was acting reasonably. As with actus reus superpowers can do some pretty unexpected things to the intent element.

  Mind control and illusions

  Let’s start with a pretty obvious one: mind control. The X-Men’s Professor Xavier has demonstrated on numerous occasions that he is able to induce people to perform actions they might not otherwise do. So has the Martian Manhunter, J’onn J’onzz. Other characters, like Mastermind, can generate mental illusions, causing people to see things that aren’t there. Apart from the fact that using such powers may be an assault, we are also presented with a question as to whether people who commit criminal acts while under the influence of such powers possess the required mental state to be convicted.

  The answer probably depends on the nature of the mental powers at work. On one hand, the law recognizes that truly involuntary actions do not generally confer criminal liability. For example, the driver of a car who suffers an unexpected seizure cannot be held criminally liable for killing someone while in the throes of the seizure. 16 Or take the most basic example: If someone physically forces you to shoot someone else, actually pushing your finger on the trigger, the other person is responsible for the resulting death, not you. In Tales of Suspense #41, Dr. Strange 17 uses a device he made to control Tony Stark’s mind, forcing Stark to break him out of prison. 18 Breaking someone out of jail is obviously against the law, but it would be very difficult to convict Stark under these facts, assuming he could prove he was being controlled. Yes, he did bad things, but intent is just as much an element of criminal definitions as actions are.

  No points for subtlety. Stan Lee, Jack Kirby et al., The Stronghold of Doctor Strange!, in TALES OF SUSPENSE (VOL. 1) 41 (Marvel Comics May 1963).

  Illusions are a slightly different case. Here we have people acting under their own power and initiative, but faced with circumstances that are not as they appear to be. Under these circumstances the doctrine of “transferred intent” comes into play. If a defendant intends to commit a crime against victim A but somehow manages to victimize B instead, his intent is said to “transfer” from A to B. 19 If you think about it, given that the requirements for a crime are a guilty act combined with a guilty mind, the fact that the act and intent are not directed at exactly the same person doesn’t actually matter because both mind and act are still guilty.

  This may sound bad for our heroes, but all is not lost. The question of whether a person acting under Mastermind’s influence could be guilty of a crime may actually depend on what the person thought was going on. If he was deceived into believing that he was acting in self-defense,
then it could be difficult to convict him, assuming he is capable of convincing a jury that that’s what was going on. Almost this exact situation occurred when Maxwell Lord mentally manipulated Superman into thinking that Batman and Wonder Woman were actually Doomsday attacking Lois Lane. Superman tried to kill each of them as a result. In the end, Wonder Woman killed Lord in order to prevent future attacks. Superman’s belief in the necessity of the use of force may have been mistaken, but it was a reasonable and good faith belief caused by Lord’s mental manipulation.

  Going one step further, what about effects that merely influence a person’s mind without controlling it, such as the Scarecrow’s fear gas or the alien symbiote that caused Eddie Brock to become the supervillain Venom? People under the influence of such effects could claim the defense of involuntary intoxication. As the Model Penal Code describes it, involuntary intoxication is “a disturbance of mental or physical capacities resulting from the introduction of substances into the body” and “is an affirmative defense if by reason of such intoxication the actor at the time of his conduct lacks substantial capacity…to appreciate its criminality.” 20 Note, however, that voluntary intoxication is not a defense: if someone puts on the symbiote suit knowing that it will affect his mind, any crimes he commits under its influence are on him. 21