Law and the Multiverse Mailbag III

Today we take a look at reader questions involving the Patriot Act, Bruce Wayne’s funding of Batman, and revealing superhero costumes.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Supervillains and the Patriot Act

Jake asks “Would it be possible to label certain supervillains as terrorists, and prosecute them accordingly?” I think the answer is here is yes, at least for violent supervillains.  Here’s how “domestic terrorism” is defined by federal law in 18 USC § 2331(5):

(5) the term “domestic terrorism” means activities that—
(A) involve acts dangerous to human life that are a violation of the criminal laws of the United States or of any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping; and
(C) occur primarily within the territorial jurisdiction of the United States.

Some supervillains go as far as attempting to influence the policy or conduct of a government through intimidation, coercion, etc, but the real catch is probably the intimidation of a civilian population.  Any mass attack on a civilian population likely counts.  But “domestic terrorism” is merely a label; it does not define a crime.  The particular crimes that make up terrorism are fairly complicated in their definitions, but the best example is probably defined by 18 USC § 2332b, which is very broad.

Section 2332b basically makes it a crime to “kill, kidnap, maim, commit an assault resulting in serious bodily injury, or assault with a dangerous weapon any person within the United States” or attempt, conspire, or threaten to do so under a certain set of circumstances. The circumstances are what set this apart from regular murder, kidnapping, etc.

The list of circumstances which qualify a given crime as terroristic is pretty all-encompassing.  For example, it counts if “the mail or any facility of interstate or foreign commerce is used in furtherance of the offense.” That includes things like interstate roads, navigable waterways, airports, seaports, and telecommunications networks.  Another broad circumstance is that “the offense obstructs, delays, or affects interstate or foreign commerce, or would have so obstructed, delayed, or affected interstate or foreign commerce if the offense had been consummated.” Virtually any major terrorist act or attempted terrorist act would obstruct, delay, or affect interstate or foreign commerce, so that’s such a big catch-all that it’s hardly worth going down the rest of the list. Suffice to say that most violent supervillain attacks would qualify one way or another.

Some supervillains might escape liability under anti-terrorism laws if they stuck to largely non-violent crimes (e.g., stealing priceless gems from museums), but once violence, including attempted or threatened violence, enters the picture, then all bets are off.

II. Bruce Wayne Funding Batman

Several people have asked about the consequences of Bruce Wayne publicly announcing that he funds Batman and international ‘Batman franchises.’ The main issue here is whether this opens Bruce Wayne or Wayne Enterprises up to liability for any crimes or torts that the Batmen may commit. This is a complex question, and it’s one that we may consider at greater length in a future post, but we’ll sketch some possible bases for liability here.

Aiding & abetting, conspiracy, and RICO laws are also possible routes to criminal liability. The international Batmen might even be labeled as terrorists, which would put Wayne at risk of violating laws against supporting terrorism. But, to one degree or another, all of these theories require knowledge of the illegal acts being committed by the Batmen, whether it be actual knowledge or constructive knowledge (i.e. that Wayne should have known what the Batmen were up to or that he was willfully ignorant). Now obviously Bruce Wayne knows exactly what Batman is up to because they’re the same person, but proving that is a different matter, so long as his secret identity is secret.

Tort liability is a bit different. Since Wayne is not directly involved in any of the tortious acts (so far as the public is aware, anyway), one theory is partnership liability. The argument would be that Wayne / Wayne Enterprises is engaged in a partnership with Batman, whether express or implied, and thus the partners are jointly and severally liable for the tortious acts that result from the partnership. Of course, partnerships are ordinarily for-profit organizations, and I think a court might be reluctant to imply a partnership in the case of Batman, since there’s really no potential for revenue there. Many of the other factors are lacking as well, especially if Wayne takes a (publicly) hands-off approach to how Batman operates.

Another tort theory would be principal liability for the acts of an agent.  Again, the problem here is that a sufficiently hands-off approach combined with the Batmen disclaiming any authority to act on behalf of Wayne or Wayne Enterprises may negate liability. The same story plays out if you consider employer liability for the acts of an employee. So long as Wayne and Wayne Enterprises avoid the perception that the Batmen are acting as their employees (which is pretty easy to do, really), that theory goes out the window.

So the bottom line is that, yes, there may be some criminal liability issues in theory, but tort liability is less of a problem. And it’s relevant that the criminal liability is largely theoretical because as long as the police and prosecutors are happy with the Batmen’s methods and results, then they have no obligation (at least in the US) to bring criminal charges, even if the Batmen (and thus Wayne) are technically committing crimes. So prosecutorial discretion is key here, as it so often is in comic books.

III. Revealing Superhero Costumes and Indecent Exposure

Jeremy asks whether spandex-clad superheroes might be liable under indecent exposure laws. Here I think the answer is probably no, at least in the US.  Although many superheroes wear costumes that would be fairly revealing in the real world, the costumes do tend to cover all the important parts. Generally speaking, the law requires actual nudity or exposure, and a superhero outfit probably would not qualify, no matter how little it left to the imagination. That said, laws elsewhere in the world can be much stricter.

That’s all for today’s mailbag.  Keep your questions coming in!

16 responses to “Law and the Multiverse Mailbag III

  1. “Laws elsewhere in the world can be much stricter.” Oh, yes. Best wishes to Wonder Woman and Tigra the next time either has to travel to the Middle East.

    • I don’t know about Tigra, but I suspect Wonder Woman can handle any quantity of members of the committees for the promotion of virtue and the suppression of vice.

      This has probably already happened.

      • Diana having operated as an international diplomat, she’s already well-versed in adapting her wardrobe to local mores and preferences. See the “Planet DC” edition of the JLA Annual from 2000 wherein she wore her own interpretation of a hijab. I don’t think that was the first such instance of her adapting as a diplomat either…?

        And it didn’t stop her from advocating for Themyscira and human rights in general, as I recall.

  2. Another important question would be whether a super-villain’s acts count as terrorism under the Terrorism Risk Insurance Act, a determination that is reserved for the Treasury Secretary. If so, then costs incurred on commercial property, liability and workers’ compensation policies are backstopped by the federal government under the $100 billion Terrorism Risk Insurance Program. In program’s original incarnation in 2002, and under the original two-year renewal signed in 2005, the law made distinctions between “foreign” and “domestic” acts of terrorism, with the former covered (Dr. Doom and the Red Skull would seem to qualify) but the latter not covered. Under the seven-year renewal passed in 2007, that distinction is eliminated, although the Obama administration has indicated it wants to amend the program to once again exclude domestic terrorism.

  3. I don’t follow Batman, has Bruce Wayne recruited any Batmen in authoritarian countries or those with high corruption? Because the Belarussian Batman, for instance, might feel obligated to defend ordinary citizens against the depredations of the government, which would – by certain definitions – make this Batman into a terrorist. Worse, it would make Wayne Enterprises a bankroller of international terrorism, similar to how the Tamil and Irish diaspora funded the terrorism in their home countries.

  4. “So long as Wayne and Wayne Enterprises avoid the perception that the Batmen are acting as their employees (which is pretty easy to do, really), that theory goes out the window.”

    My understanding of how exactly Batman, Inc. works in the comics is sketchy, but would it really be that easy for Wayne to avoid the perception that the Batmen are acting as their employees? (At least, I don’t know that it’s so clear under Canadian jurisprudence, which is what I know; I don’t know if things are different in the US.)

    I think, first-off, that there’s clearly at least a quasi-contractual relationship (though I assume no formal contract) between Wayne and the Batmen – it is, I assume, clearly understood by both parties that Wayne is providing consideration (the funding) in the definite expectation that the Batmen render certain services (act as a hero, and answer to Batman).

    The main question, it seems to me, is whether or not the Batmen would be better thought of as independent contractors or proper employees. The common test for that determination in established Canadian jurisprudence is as follows:

    “The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker’s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker’s opportunity for profit in the performance of his or her tasks.” 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983 at para 47

    This is where my lack of factual knowledge regarding the comics becomes an issue – I’m really not sure whether or not the Batmen can be said to be in “business on their own account” as heroes, or whether can be said to have entered that field because of Wayne’s activities. I suppose that courts would want to examine whether any of the Batmen were known to have previously been heroes (and thus, were previously in business for themselves as heroes and simply took this on as an engagement) or whether they were spurred to have become heroes by Wayne, with reference to factors like whether or not they had their own equipment for hero-ing before Wayne’s investment, etc.

    That said, given those above factors I think it could well be possible for one or more of the Batmen he recruits to be found to be his employees, especially if they were new heroes who were brought into the business of vigilantism by Wayne’s activities. This would, of course, be bad for Wayne, seeing as how he would become vicariously liable for essentially any damage caused by a Batman while fighting crime, which would presumably mean rather obscene legal liability.

    Can anyone with more factual knowledge regarding how Batman, Inc. works in the comics comment on how the courts would likely perceive the Batmen? Would they likely see them as being in business for themselves in keeping with the above test, or might they be perceived as employees?

    • I’m not sure if the courts would imply a contract of any kind. Enough money is changing hands that the statute of frauds would certainly be triggered, requiring a written contract, and the work to be performed (such as it is) would require more than a year to complete, given that crime is a perpetual problem. And if there’s going to be a written contract, then surely Bruce Wayne and Wayne Enterprises would require an indemnification and defense clause. They’re not fools, after all.

      But beyond that, one major reason to suspect an independent contractor relationship rather than an employer-employee relationship (assuming it has to be one or the other) is that the foreign Batmen seem to have a pretty free hand to fight crime in more-or-less their particular style and to select their own targets and priorities on any given night. I say more-or-less because Batman does specify that the ‘no guns’ rule applies to Batman, Inc.

    • Another reason to think that Wayne and Wayne Enterprises might not be liable is that the Batmen are almost certainly funded through an intermediate company (Batman, Inc.) rather than by Wayne or Wayne Enterprises directly. The business organization issues here are something we’ll talk about in more detail on a proper post on the subject.

      • Excellent point, and that intermediate entity might be based overseas, in the Caymans, for instance. There might in turn, though, be arguments for piercing the corporate cowl. 🙂

    • Nightrunner, the Batman of Paris, was not strictly inspired by Batman. He was a person who was trying to stop a muder while concealing his race to avoid causing further tension within his local society. He made the decision to do this with no involvement from Batman, or Bruce Wayne.

      When Batman and Batman (Bruce Wayne and Dick Grayson) encounter Nightrunner, they originally arrest him saying that they are operating under agreement with the local government. When they realize their mistake, that he is nto a criminal, they then ‘hire’ him into the organization.

      The Japanese Batman was also a vigilante operating on his own before being contacted by Bruce Wayne.

      Cyril Sheldrake, The Knight (Batman of England) was direclty inspired by Batman to become what he was, but was still operating as his own homage to Batman before being contacted by Bruce Wayne to join Batman, Inc.

  5. I don’t want to sound obsessed but if the government and general public all agree that Batman is doing good then could Wayne Enterprises claim that Batman, Inc. is a charity and request a tax deduction?

    • I would imagine that, despite any good being done, most governments would be hesitant to give breaks to ‘charities’ whose main focus is punching people. Would you give benefits to Face Kicks for Cancer?

      Well, maybe…

    • Being a tax-exempt charity has less to do with recognition that the organization is doing good (there are lots of controversial charities) and more to do with how the organization is structured along with certain limitations on its activities. Here’s a good summary from the IRS.

      “To be tax-exempt under section 501(c)(3) of the Internal Revenue Code, an organization must be organized and operated exclusively for exempt purposes set forth in section 501(c)(3), and none of its earnings may inure to any private shareholder or individual. In addition, it may not be an action organization, i.e., it may not attempt to influence legislation as a substantial part of its activities and it may not participate in any campaign activity for or against political candidates….The exempt purposes set forth in section 501(c)(3) are charitable….The term charitable is used in its generally accepted legal sense and includes relief of the poor, the distressed, or the underprivileged; … lessening the burdens of government; lessening neighborhood tensions; … defending human and civil rights secured by law; and combating community deterioration and juvenile delinquency.”

      So arguably Batman, Inc. could fit in theory. Certainly the Batmen work to “lessen the burdens of government,” “defend human and civil rights secured by law,” and “combat community deterioration.” Good arguments could be made for other aspects of the definition of “charitable” as well.

  6. On the indecent exposure issue, what if a superheroine knowingly dresses in something too scanty or flimsy to hold up in a fight, and then goes out with the intent of getting into a fight? Of course, in comics, the impossibly skimpy outfits somehow manage to stay intact (a gag in a She-Hulk comic once had her explain this by showing that her underwear bore a “Protected by the Comics Code Authority” label), but in a more realistic context, a “wardrobe malfunction” would be pretty inevitable. I suppose a real-world analogy would be if someone wears a tiny string bikini that’s only meant for show but then gets into a lively beach volleyball game, causing the bikini to come loose. Is there such a thing as premeditated indecent exposure?

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