Mind Control Made Me Do It

Some supervillains (e.g., Gorilla Grodd, The Puppeteer) have the ability to control others through mental powers, hypno-rays, or the like.  But if they forced you to commit a crime, would you still be liable?  And would you have any claim against them?  The short answers are no and yes, respectively.

[Note: ‘No and yes’ were reversed when this first went up.  Law and the Multiverse regrets the error.]

I. Actus Reus and Mens Rea

Generally speaking, crimes have two fundamental elements: the actus reus (or guilty act) and the mens rea (or guilty state of mind).  In other words, you have to do a bad thing for bad reasons.  Some crimes have no mens rea and are thus strict liability crimes (e.g., speeding).  But all crimes must have an actus reus requirement; merely having a particular status or state of mind is insufficient.  Robinson v. California, 370 U.S. 660 (1962). Even conspiracy requires at a minimum the act of agreeing to commit a crime, even if the jurisdiction does not also require an overt act in furtherance of the conspiracy.

Formally, the Model Penal Code (which is not itself law but which has been adopted in whole or in part by many states) defines an act as “bodily movement whether voluntary or involuntary.”  MPC § 1.13(2).  However “[a] person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable.”  MPC § 2.01(1) (emphasis added).  In fact, the MPC explicitly states that “conduct during hypnosis or resulting from hypnotic suggestion” is not voluntary.  MPC § 2.01(2)(c).

So any conduct under mind control would appear to fail the actus reus requirement, which essentially eliminates criminal liability.  But what if the supervillain isn’t directly controlling the person’s actions but merely manipulating their senses?  For example, what if Batman is manipulated into thinking that the innocent bystander in front of him is actually The Joker pointing a gun at him?  If he punches the bystander in what he believes to be self-defense, is he liable?  The act was certainly voluntary, and the mens rea requirement is also met because he intended to strike the person.  Here we can turn to some additional defenses.

II. Mistake of Fact

A defendant’s ignorance or mistake can be a defense if it “negatives the purpose, knowledge, belief, recklessness or negligence required to establish a material element of the offense.”  MPC § 2.04(1)(a).  A mistake is not a get out of jail free card, though.  For example, an unreasonable mistake would not negate negligence because acting on an unreasonable belief is typically negligent. And some jurisdictions require that a mistaken belief be reasonable in order for it to be a defense at all.  See, e.g., People v. Goetz, 68 N.Y.2d 96 (N.Y. Ct. App. 1986).

In this case, if a supervillain is manipulating your senses, the mistake would seem to be entirely reasonable.  But what if Batman knew he was being manipulated, and thus at least had some reason to suspect that The Joker wasn’t really standing there with a gun?  There things get dicier, but even if mistake of fact fails as a defense, we have a few options left.

III. Involuntary Intoxication

Voluntary intoxication is generally not a defense.  You get drunk, you take your chances.  But involuntary intoxication can be a defense (e.g. someone spiking your (non-alcoholic) drink).  In a way, having one’s senses manipulated can be seen as a kind of involuntary intoxication.  Unfortunately, the Model Penal Code defines intoxication as “a disturbance of mental or physical capacities resulting from the introduction of substances into the body.”  MPC § 2.08(5)(a). So unless the supervillain uses some kind of drug or other substance as part of the mind control, this won’t apply.  But note that it would apply to something like Scarecrow’s fear gas.

Presuming it does apply, such involuntary intoxication “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.”  MPC § 2.08(4).  I think it’s fair to say that someone whose mind is being manipulated, even if he or she knows it is being manipulated, lacks the capacity to appreciate the criminality of an action that–to his or her senses–is not a crime.  If you can’t trust your senses, you can’t know if anything you do is a criminal act or not because you have no idea what’s really going on.

But suppose no drugs were involved, the mistake wasn’t considered reasonable, and it was a voluntary action?  There’s at least one more possible defense.

IV. Duress

Duress is basically the “but they were going to kill me if I didn’t do it” defense.  Mind control is not exactly the classic example, but it may apply.  Under the MPC “[i]t is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist.”  MPC § 2.09(1).  Arguably, mind control or sensory manipulation amounts to the use of unlawful force, and arguably a person of reasonable firmness in Batman’s situation would have been unable to resist defending themselves against what they believed to be The Joker.

Note that although there is a still an element of reasonableness here, it’s different from the reasonableness element of mistake.  The question here is not whether it was reasonable to believe that The Joker was actually standing there with a gun.  The question is whether a person of reasonable firmness could resist defending himself or herself in case it actually was The Joker.  I think most people, even if they had the presence of mind to think “it’s probably just an illusion,” wouldn’t be willing to take the risk of getting shot, just in case they were wrong.

There is a catch to duress, however.  “The defense provided by this Section is unavailable if the actor recklessly placed himself in a situation in which it was probable that he would be subjected to duress. The defense is also unavailable if he was negligent in placing himself in such a situation, whenever negligence suffices to establish culpability for the offense charged.”  MPC § 2.09(2).  So if a superhero charges in knowing that it is probable that he or she will be mind controlled, duress may not be available.  And for crimes for which negligence is the standard, the test becomes whether the superhero should have known that it was probable he or she would be mind controlled, whether he or she actually knew or not.  So duress is mostly available only if the superhero is truly caught by surprise (e.g., the villain’s powers are unknown or a villain that doesn’t normally have mind control powers uses a mind control device).

V. Civil Claims

So now that our defendant has likely been cleared of criminal charges, might he or she have a tort claim against the mind controller?  If the mind control involved some kind of drug, then there is definitely a claim for battery.  But regardless I think there’s a good claim for fraud to be made.  Typical elements of common law fraud are: (1) a representation of fact; (2) its falsity; (3) its materiality; (4) either knowledge of its falsity or a reckless disregard of its truth or falsity; (5) intent that the representation be acted upon; (6) the hearer’s ignorance of its falsity; (7) the hearer’s reliance on its truth; (8) the hearer’s right to rely thereon; and (9) the hearer’s consequent and proximate injury. Schnellmann v. Roettger, 373 S.C. 379, 382 (S.C. Sup. Ct. 2007).  Here all the elements seem to be met, presuming that the plaintiff did in fact suffer an injury as a result of the mind control.  Whether the mind control itself could be considered an injury is debatable.

Another possible tort would be intentional infliction of emotional distress, presuming that mind control does cause severe emotional distress, which seems likely, and that it amounts to “extreme and outrageous conduct,” which also seems likely, and (in some jurisdictions) that it occurred in public, which battles between heroes and villains often do.

VI. Conclusion

Although supervillains may be able to use mind control to force superheroes and ordinary people to commit what would otherwise be crimes, their victims have numerous defenses as well as potential civil claims.  Some of these same defenses would apply, with appropriate modifications, to torts that the victim was forced to commit as well.  And although this post is already running a bit long, suffice to say that using mind control to cause another person to commit a crime would itself be a crime under a couple of different theories, so it’s not a loophole for the supervillain.

(Note: The post was partly in response to a question by Sigma Silver.)

33 Responses to Mind Control Made Me Do It

  1. Would the use of mind control make an insanity defense to criminal charges available?

    It seems that at least some forms of mind control used in comics has the potential to make it impossible for the victim for form any sort of meaningful value judgements.

    • Insanity is indeed a possible test, but if the tests are strictly construed then it might not work. Under the federal test, for example, I’m not sure it would work because mind control may not qualify as a “mental disease or defect.” The M’Naghten Rules likewise refer to a disease of the mind. The MPC also refers to a “mental disease or defect.”

      So I think some of these other defenses are actually a better fit.

  2. But I suppose the question arises, how do you CONVICT someone who has intrinsic mind-c0ntrol powers? Since for most at least capital crimes and crimes for which they’re likely to be concerned (being villains and all, they’re unlikely to respect a civil lawsuit), you need to be charged by a jury of your peers. Because the number of super-powered individuals that are resistant to mind-control tend to be a.) relatively small in number, and b.) superheros and supervillains, who would probably fail the voir dire process, since they’re not likely to be neutral to the plight of a fellow enemy/hero/friend and/or unwilling to actually show up for jury duty. Which means that to have a “reasonable” trial of someone with telepathic control might need either special rules for dealing with them, or would require regular people who could then be mentally influenced to the decision the individual being tried prefers.

    • In some cases the intrinsic mind control powers could be blocked. A mutant with mind control powers (and perhaps others) could be controlled through a variety of means, including an anti-power field produced by a character like Leech.

      Alternatively, if it could be shown that the villain was using his or her powers in court, then he or she could be tried in her absence. While defendants have a right to confront witnesses, they can waive that right by being unruly in court. “No doubt the privilege [of personally confronting witnesses] may be lost by consent or at times even by misconduct.” Illinois v. Allen, 397 U.S. 337, 342-43 (1970). It’s possible that the extreme threat of disruption presented by a defendant with mind control powers could require a court to try him or her in absentia from the beginning or perhaps only allow him or her to participate by video conference.

  3. Several of the previous posts got me to thinking about Harry Potter. While not technically a superhero as used here on this blog, some issues are relevant: broomsticks and the FAA, Death Eaters and their use of mind control (Imperius Curse), and wands as “gadgets”. Now, I know I will receive flak for lumping magic into comic books, but I feel justified in adding a piece of literary pop culture into this mix. If Harry Potter were set in the Sci-fi universe, his wand would instead be a self-contained transporter, tractor beam, blaster, tricorder, replicator, and flashlight all rolled into one unit, leading us back to the post on gadget laws.

    • The Harry Potter series seems to make it clear that wizards and witches in the books live in another state that occupies the same physical space as the United Kingdom. We do on occasion hear about laws and regulations that govern the use of at least some of these things, albeit poorly and with questionable logic. Of course all this is based on the assumption that any ‘Muggle’ U.K Prime Minister would accept the situation for even a second, which I find rather doubtful, but there you go.
      Maybe at a later date they’ll look at laws about who is a citizen of what state and whether the magic state could be considered lawful by a Muggle court but that’s another issue altogether.

      • Actually, in the Harry Potter novels it’s made clear that the muggle Prime Minister is made aware of the existence of the wizarding world.

      • In re. to James Daily’s point about being aware, yes the Prime Minister is aware of the existence of the wizarding world. The issue however is that we are supposed to accept that the he (and previous Prime Minister’s) wouldn’t question this. I find it rather unlikely that people like Thatcher would make no effort to gain control over a rather dangerous group in their nation who seem to have no concerns with installing one of their agents (Shacklebolt) as his secretary. It simply baffles me that anyone who gets to be the Prime Minister of the U.K would meekly accept the state of affairs.
        However, as stated, that is really more a political question than a legal one.

    • Harry Potter doesn’t really work for our analysis because the witches and wizards try very hard not to run afoul of the muggle legal system, whereas most comic book characters do interact with the mundane legal system pretty often. In fact, when witches and wizards do questionable things in the muggle world they explicitly cover it up with magic.

      • Martin Phipps

        I haven’t read the Harry Potter novels: I’ve just seen the movies. I do have to wonder though if Harry Potter and his ilk have to pay taxes. Given that they can do magic I suppose they could just make gold appear and they would never have to work in the real world so they wouldn’t have to pay income tax. (There might be some problem if they simply made money appear as this would be counterfeiting.) Nor would they have to pay taxes to fund schooling or the National Health Service if they had their own schools and hospitals. But then the government would have to insist that Harry Potter and his ilk not go to public schools or hospitals or risk being accused of tax fraud. And what about property taxes? Do places in Harry Potters world actually exist in the real world? Can muggles take a walk in the country side and find Hogwarts? Presumably the answer is, no, they can’t, but does that mean Hogwarts exists in another reality altogether or does it take up physical space in England? If it does then the government could demand that Hogwarts pay property taxes.

        For that matter, what kinds of taxes do superheroes have to pay? I imagine the Justice League has to pay taxes just like any other organization. Or would they be treated as a charity and considered tax exempt? And what if Superman were to crush carbon, make diamonds and sell then them? Would that be considered income? It would be tempting for Superman to use his powers to make money and then he wouldn’t have to work as hard as Clark Kent to buy clothing or take Lois out for dinner but if he were able to amass significant wealth as Clark Kent on a measly reporter’s salary then somebody would get suspicious and ask him to declare all of his income. The same logic would apply to any superhero who was able to make money in their hero identity and then spent it in their civilian identity.

  4. What if someone (let’s say Person M) used their powers (accidentally or deliberately) to cause another person (Person V) to act to fulfill Person V’s desires? Please note that in this scenario Person V would not be under the direct control of Person M but rather their ability to judge a situation would be altered. Would this qualify as Involuntary Intoxication?

    • If I catch your drift, it would be more than that: it would be rape.

      • I wasn’t stating that their altered judgement would lead them to rape because there are many things humans desire. It could just as easily lead to overeating, skipping work, assaulting someone you dislike etc. My question was ‘if the scenario described happened and as a result Person V did something illegal would it be possible for Person V to use Involuntary Intoxication as a defense’.
        I don’t know of any Marvel or DC supervillains with that power so lets keep it simple:
        Control Man has the power to stimulate chemicals in a person’s mind that reduce their ability to make rational decisions by touching them. However Control Man is unable to control this ability. One day he accidentally touches Mr. Victim and as a result Mr. Victim (under the influence of Control Man’s ability but not directly ordered by Control Man) proceeds to push someone down a flight of stairs. At trial would Mr. Victim be able to use the Involuntary Intoxication defense or would that be too weak?

  5. So Batman sees the Joker with a gun, and is aware that he may be mind-controlled into seeing an innocent as the Joker, and he punches the victim in an attempt to knock them out.

    It seems to me that Batman should be able to argue that, had it really been the Joker with a gun, he’d have been justified in using a gun of his own to defend himself with lethal force. But he did not do this – he merely knocked his opponent out. So he took an action which took both possibilities into account – if it WAS the Joker with a gun, he incapacitated them, and if it was an innocent, he caused minimal permanent damage to them.

    What would this defence be?

    • That wouldn’t really be a defense. Either Batman’s mistake is a defense or not. That he used less force than he could have doesn’t really enter into it, I’m afraid.

      • Martin Phipps

        In the real world, when a police officer shoots somebody what is the verdict if he can convince people that he _thought_ the victim was carrying a gun? Wrongful death? Or is the police officer cleared if, say, the victim had pointed a realistic looking toy gun at the officer.

        In this case, Batman chooses to incapacitate somebody instead of killing them so he would be guilty of assault. If he killed somebody then he’d have to plead self defense based on a reasonable belief that he was being threatened. Can you claim self defense to escape an assault charge? If you thought somebody was going to hit you and you hit them first can self defense even be used as a defense?

  6. Not superhero-related (well, it could be argued it involves a super-villain), but the mention of duress reminds of something from the first Saw movie. A character has a death trap attached to her and has sixty seconds to get the key before it springs. That key is in the stomach of a man lying on the floor she is told is dead–she simply needs to cut it out of him. Before she even starts, however, it becomes apparent the man IS NOT dead. She still escapes, the man is not so lucky. What is her culpability, if any?

    • I’m afraid she’s guilty of homicide of some stripe. Necessity is no defense to murder, and since the man on the floor wasn’t the one threatening her, self-defense isn’t an option either. Depending on how the jurisdiction defines manslaughter, she might be able to argue for that instead of first degree murder. That’s probably about as good as it gets in that case.

  7. So, to stick with Batman here, if Batman goes up against The Mindalterer (a powerful supervillan that can alter minds!), and is put into duress, and punches dude in the face, he’s criminally liable because he knew that The Mindalterer could do that, and so placing himself in that situation would be reckless on Batman’s account.

    But would he not face some form of criminal negligence charges if he knew that The Mindalterer was about to kill or maim someone, and he didn’t go do something to prevent it?

    Or does this go back to the previously mentioned idea that Batman doesn’t actually HAVE to do something to prevent a crime from happening?

  8. A related question, suppose a supervillain uses mind control to win an election can the election be voided? If they take the direct approach, and hypnotise the entire country into voting for them, that’s clearly electoral fraud, but might not be covered by existing laws. If they use mind control to force the other candidates into self-defeating behaviour, the situation is murkier. If the mastermind makes candidate X falsely admit to 3 unsolved murders and Y truthfully confess to five affairs, both X and Y will have claims against the mastermind, but is it enough to get the election voided?

    • While not a lawyer myself, I suspect the answer to Robert’s question would be no, the election would not be voided. In the mundane world, if one candidate got elected after drugging or blackmailing his opponent into (falsely) admitting reprehensible acts, the election would still stand so long as the vote count could be certified. Whatever the candidates say or don’t say, it’s the voters who must make up their own minds by whatever personal standards they use. It’s arguable (if fanciful) that a subset of voters might vote *for* the candidate with five affairs, arguing that he’s a “real man” or that “his personal life doesn’t matter,” or even that “someone who’s successfuly covered it up this long must be a pretty good politician.”

      That said, if the scandal came to light after the election, there would likely be more than sufficient grounds for impeachment. Or for recall, in states and municipalities that allow the option.

      • Scandals really depend on where you are. Even in the U.S that still depends on the state and county.

  9. What about the situation where the person is in partial control? The Buffy the Vampire universe presented the situation of a vampire with a human soul (Angel). In this situation, a human, Liam, is “killed” by a vampire and the result is that his human body is transformed into a vampire body that is controlled by a new vampire demon. The vampire calls itself “Angelus” and kills many people. We’re told that the vampire’s personality is “informed” by Liam’s human mind that used to occupy the body. But the vampire Angelus is clearly in control of the body. Then Liam’s soul is reintegrated into the vampire body, which is now occupied by both the original soul of the human Liam and the vampire demon Angelus. The result is a kind of merged personality, that appears to be dominated by Liam, but is influenced by Angelus, and that calls itself “Angel.” Questions (1) is Angel liable for the crimes of Angelus? (2) If Angelus is removed from Angel (resulting, presumably, in Liam), is Liam liable for the crimes of Angelus? (3) If Angelus is removed from Angel, would Liam be responsible for any crimes that Angel committed?

  10. I have a question about duress – in my jurisdiction (in New South Wales, Australia), duress can be used as a defense against some crimes – ie “They were going to kill me unless I robbed the gas station” (although even then you might still be found guilty of a lesser count), but it does not apply to murder. So to take the “Saw” example (although I’ve not seen the movie) provided by Daniel T above , in that case (in New South Wales) the defendent would not be able to use duress as a defense against murder… at the very least you’d still be up for manslaughter (which can still be several years in jail). Is that the same for the US, or is this just a difference between US and Australian jurisdictions?

  11. How would this apply to the movie The Mask? While wearing the mask, Stanley is unaware of his actions so he wouldn’t have the mens rea to be found guilty by any acts while “under the influence” of the mask. I would venture though that this would only apply to criminal acts done the first time he put the mask on as he had no idea nor reasonable expectation the mask would take over his body. This would basically equate to involuntary intoxication. After learning about what he did as the mask the next day, I think any future use of the mask would constitute voluntary intoxication.

    • Yeah, that’s about right. Involuntary intoxication the first time, since in that universe no one would reasonably believe that the mask would have that effect. Voluntary intoxication every time thereafter, since its effects were pretty undeniable.

  12. In Star Wars, when Obi-wan uses his Jedi Mind Trick on the storm troopers in Mos Eisley, would the storm troopers have a tort against Obi-wan if they were fired from their job if it was discovered they had the droids they were looking for and let them go?

    • Well, who knows what the law is like in Star Wars. But assuming it’s the same as ours…they could have a battery claim, on the assumption that the Jedi Mind Trick affects a person’s neurons and is thus a “harmful or offensive contact.” If they had some kind of contract with the Empire (e.g. an employment contract), and failing in their duties amounted to a breach of that contract, then they could have a claim for tortious interference.

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