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.
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.
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.)