Superpowered Minors, Part Four

This is a continuation of our earlier series on superpowered minors.  The first three parts of the series dealt with the criminal, contract, and tort liability of young superheroes and supervillains.  Now we come to the legal issues facing the parents, legal guardians, and adult team members of those precocious crime-fighters and ne’er-do-wells, which many of our readers and commenters have asked about.

There are three major areas of concern.  First, child welfare laws.  Second, employment and child labor laws.  Third, vicarious liability for the minors’ crimes and torts.  We’ll look at the first two areas today and the third in a future post.

I. Is Robin a Victim of Child Endangerment?

All states have laws against child abuse, although the specifics vary.  In the case of superheroes we are not terribly concerned with laws against intentionally or willfully harming children.  See, e.g., Cal.Penal Code § 273d.  As far as we know, intentional child abuse by superhero parents and guardians is rare to non-existent.  Nor are we concerned with child superheroes who keep their activities a secret from their parents.  As long as those parents aren’t neglectful  or turning a blind eye, they’re probably in the clear.  Instead, we are concerned with child endangerment or indirect abuse.

Consider, for example, Cal.Penal Code § 273a(a): “Any person who, under circumstances or conditions likely to produce great bodily harm or death … willfully causes or permits [a] child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment….”  Cal.Penal Code § 273(a)(b) covers the same thing except without the “great bodily harm or death” part, which makes it a misdemeanor.

Note that “likely to produce great bodily harm or death” does not mean “more likely than not.”  Instead, it means a substantial danger or a serious and well-founded risk. People v. Wilson, 138 Cal.App.4th 1197, 1204 (Cal. Ct. App. 2006).  So just because Batman and Robin usually escape without harm does not mean that great bodily harm or death is not likely for purposes of the law.

California courts have held that in cases of indirect abuse (i.e. where the child is not harmed by the caretaker directly) criminal negligence on the part of the caretaker is required.  People v. Valdez, 27 Cal.4th 778, 789-90 (2002).  California defines criminal negligence as “‘aggravated, culpable, gross, or reckless … conduct … [that is] such a departure from what would be the conduct of an ordinarily prudent or careful [person] under the same circumstances as to be incompatible with a proper regard for human life.”  Id. at 783.  So now we come to the crux of the issue: is taking Robin along to fight crime such a departure from the conduct of an ordinarily careful person under the same circumstances as to be incompatible with a proper regard for human life?  We think the answer may be “no” for two reasons.

The first reason is the crucial phrase “under the same circumstances.”  In the case of Batman and Robin, the circumstances are a highly trained, highly equipped, highly experienced guardian working with a highly trained, highly equipped, and (eventually) highly experienced assistant.  Fighting crime under those circumstances does not seem incompatible with a proper regard for human life.  Batman has also demonstrated care for Robin by preventing him from working with him on numerous occasions when the circumstances have been too dangerous, eventually stopping his collaboration with the first Robin (Dick Grayson) altogether after Robin was shot in the shoulder by the Joker.

The second reason is that indirect abuse is usually characterized as a crime of “extreme neglect.”  Id. at 784.  Batman is a lot of things but neglectful is not one of them.  He is in many ways a very active and engaged guardian to Robin. This simply doesn’t seem to be the kind of behavior the statute is meant to address.  One might compare this to other dangerous activities undertaken by parents and children, including driving, which injures about 250,000 children each year and kills about 2,000.

So at least in the case of Batman and Robin, child endangerment does not seem to be an issue.  Not all parent-child superhero teams fit their mold, however. For example, Big Daddy and Hit Girl in Kick-Ass would probably run afoul of child endangerment laws.  The evidence against Big Daddy would include the much greater degree of danger and (consistent with traditional neglect) Big Daddy giving Hit Girl cocaine, even if it is ‘only for emergencies.’

II. Should Robin At Least Be Getting Paid?

Also of concern are child labor laws.  There are both federal and state child labor laws.  The main federal child labor law is a part of the Fair Labor Standards Act of 1938, which prohibits “oppressive child labor.” 29 USC 212(c).  The definition of oppressive child labor given in 29 USC 203(l) is a little complicated, but we’ll try to break it down:

  1. As a general rule, no employees under 16 are allowed
    1. except a child employed by a parent or guardian (subject to part B, below)
      1. except if the occupation is manufacturing, mining, or an occupation found by the Secretary of Labor to be particularly hazardous for 16-18 year olds or detrimental to their health or well-being
    2. except if the Secretary of Labor says that it’s okay for 14-16 year olds so long as it’s confined to periods which will not interfere with their schooling or their health and well-being
      1. except mining and manufacturing are still out
  2. As a general rule, employees from 16-18 are allowed
    1. except if the Secretary of Labor has declared the occupation to be particularly hazardous for 16-18 year olds or detrimental to their health or well-being

Whew.  Got all that?  So we can see that the rules depend a bit on the child superhero’s age and their relationship to their adult superhero-supervisor.  In Robin’s case it looks like he’s in the clear to work with Batman so long as the Secretary of Labor doesn’t declare “crime-fighting” to be a particularly hazardous occupation.  However, many state child labor laws have “catch-all” provisions that prohibit employing children in dangerous occupations of any kind, no special pronouncement from the Secretary of Labor required.  If Gotham is in such a state, then things could get a bit dicier.

Of course, none of this matters if the superhero kid isn’t considered to be working in the first place.  You might think “well, they aren’t getting paid, so it must not be work, right?”  That can’t be the only thing to consider, though, otherwise it would be a great incentive not to pay one’s child employees.  As a result, many states have laws that make the presence of a child in a business presumptive evidence that the child is employed there.  See, e.g., Mo. Rev. Stat. 294.100; La. Rev. Stat. § 23:233.  But the Batcave doesn’t seem to be a place of business, so that’s not an issue.  All things considered, Robin and most other sidekicks are probably not employees.

So are there any cases where a child superhero might be considered an employee?  We think it would probably require an adult superhero who was in it for the money (e.g. collecting rewards or working as a mercenary or professional government agent).  Such superheroes definitely exist, but they don’t tend to have teenage sidekicks.  If any of our readers can think of an example, please let us know!

III. Conclusion

Child endangerment laws should be a concern for any superhero with a minor sidekick.  Absent pretty extraordinary (e.g. Batman-level) evidence of competence, safety measures, and general carefulness, fighting violent crime is probably dangerous enough to qualify as endangerment.  We suppose sidekicks could stick to fighting white collar crime, but “The Adventures of Securities Regulations Enforcement Boy” are unlikely to make for a very gripping read.

On the other hand, child labor laws are probably not a big issue, particularly for superheroes who act out of altruism and take care of their sidekicks.  But if a superhero is in it for the money, then giving a sidekick a cut is probably called for.

29 Responses to Superpowered Minors, Part Four

  1. What about Robin’s previous line of work: the circus? That would seem to be a rather dangerous job, as proved by the fate of Dick’s parents. Of course, circus kids exist IRL too. Here in Australia there is even a school for aspiring young circus performers called the Fruit-Fly Circus, which is less a case of ‘run away and join the circus’ and more ‘enroll in boarding school and join the circus at the same time’.

    • His parents were murdered, which is something you can’t really hold the circus responsible for except in that the circus owners probably didn’t have good security. I’m not sure what legal standards are for circus acts in the 21st century but their act was probably fully legal in 1940 (Dick Grayson’s first appearance I understand).

  2. There have been three Robins: in addition to Dick Grayson and Tim Drake there was Jason Todd. Jason Todd actually died (only to be revived later by the Pre-Crisis Superboy). See http://en.wikipedia.org/wiki/Jason_Todd#Death

    Anyway, this was a real body-with-no-pulse-buried-in-the-ground death, not just missing-and-assumed-dead dead. Given that Batman is safe from child endangerment laws because it is assumed that he is competent enough not to let any of his sidekicks get killed, doesn’t the fact that one of his sidekicks actually did get killed render that argument moot? And, besides, none of his sidekicks were actually his sons. Even if Batman isn’t criminally negligible, wouldn’t the state have taken away any child in his custody and placed him with a family that won’t train children to fight the Joker?

    “are there any cases where a child superhero might be considered an employee?”

    Yes. The superhero Rage joined the Avengers but it was later revealed that he was only a teenager. See http://en.wikipedia.org/wiki/Rage_(comics)#Avengers Avengers by laws prohibit minors being Avengers. Of course, the fact that Avengers were getting paid a weekly stipend would seem to imply that they are getting paid. (The alternative, I suppose, would have been for somebody in the Avengers to have legally adopted Rage and then the money would be considered an allowance.) So even if Avengers by-laws didn’t prohibt minors joining the Avengers there would still be the questions of both child endangerment and child labor laws. (Even if the Avengers didn’t pay people there’s still the fact that superhero teams are partnerships and thus closely resemble businesses whereas Bruse Wayne could claim that being Batman was a hobby akin to fishing or hunting.)

    Another possibility would be to argue that the Vision was a child when he joined the Avengers. However, the Vision was never legally considered human by the American government so it would have been hypocritical for the government to enforce child endangerment or child labour laws against the Avengers: it would be as though they told the Avengers they had to wait sixteen years before they could use a new toaster. The law might not be so favorable if a member of the Avengers (or Justice League) turned out to be a clone who had been artificially aged to adulthood but was still chronologically a child. Yes, yes, I’m still on that kick.

    • I intentionally discounted Jason Todd’s death because it was voted on by comic book readers like a kind of modern day gladiatorial thumbs up/down. As such, I don’t think it’s really legitimate evidence of how dangerous being Robin is. But even if it were, he died while he and Batman were tracking down his birth mother, not while actively fighting crime.

      Regarding Rage: That may or may not have been a violation of the child labor laws. Some courts have held that neither good faith nor reliance upon representations made by the child are a defense. See, e.g., Terry Dairy Co. v. Nalley, 146 Ark. 448 (1920). Others have held that the exercise of proper vigilance and caution is a defense. See, e.g., Knoxville News Co. v. Spitzer, 152 Tenn. 614 (1926). Once Rage was discovered to be a teenager and was busted down to trainee, was he still receiving pay?

      • Martin Phipps

        It was never stated in the comics whether or not Rage was being paid the full $1000 weekly stipend, the $100 weekly stipend or nothing at all because he was a “probationary” member. I feel silly quoting the Avengers charter like it is a legal document but “probationary” is actually defined there.

        3. Newly-elected Avengers shall serve a probationary period of not less than six months.
        3a. During the probationary period, a special committee consisting of one primary team member, one reserve substitute, and two members of the Avengers support crews shall investigate the candidate’s public record for any violations, breaches of trust, or depredations, legal or moral, which may preclude said candidate from assumption of full active status.
        # 3b. While on probation, the new Avenger shall have limited access to Avengers facilities and records.
        # 3c. At the end of probation, the new Avenger shall assume full active status, unless objections are raised by any active member, or by the United Nations Security Council.
        http://marvel.wikia.com/Avengers_Charter

        Then later it says
        5. Active Avengers shall be paid a stipend of one thousand dollars ($1000) per week.

        So perhaps Rage was never paid because he was still on probational status when they found out that he was too young to join the team. He would have eventually gotten paid when he because a reserve member as “reserve Avengers [are] paid a stipend of one hundred dollars ($100) per month” but I remember it was specifically stated in the comics that he had turned sixteen by then and thus was no longer a minor.

      • Martin Phipps

        What about when Reed Richards cloned Thor and used him to impersonate the real Thor? My God. Child endangerment and child labor laws are only beginning. Aren’t there real world laws against human cloning? If Thor is a state actor then having someone impersonate him would also seem to violate laws against impersonating an authority figure (such as a police officer).

        Obvious question: if the Avengers are “recognized and fully sanctioned as a peacekeeping force by the National Security Council of the United States of America” then that pretty much means they are state actors, right? In the case of the Justice League I don’t think it was ever so clearly stated, although they were UN sanctioned for a while. I remember that.

      • John Kingston

        IMHO, disregarding Jason Todd’s death because it was voted on by comic book readers is a distinctly metafictional stance to take. You are basing your opinion on facts that nobody (except certain interpretations of Deadpool and She-Hulk, who don’t exist in that universe anyway) could possibly know and which would have no understandable mechanism (to people inside the DC universe) by which it could relate to the death.

        If you can disregard Jason’s death on the grounds that he is only a fictional character in a comic book (which you would have to do to consider that the votes of comic book readers was the sole and direct cause of his death), then you would also have to apply the same logic to every other crime in comic books.

      • Sometimes a metafictional stance is okay, I think. For example, it’s pretty routine to consider non-canon, what-if, or alternate universe stories to be somehow ‘less true’ than the canon ones. The argument isn’t that, for example, people in the DC Universe wouldn’t consider Batman culpable for Jason Todd’s death because it was ordered by comic book readers. You are correct that they would have no way to know that. The argument is that the story is less thought-out and cohesive than a normal storyline, so we shouldn’t consider it a representative story. In other words, even if Batman were culpable in that case, it doesn’t mean he’s culpable in other cases, especially because Todd’s death was a weird, one-off thing.

        But as I said, even if you’re uncomfortable with that argument, the legal argument would be that Batman and Robin were not engaged in crime fighting at the time of his death. They were searching for Todd’s birth mother, who happened to have gotten involved with the Joker, unbeknownst to Batman and Robin.

    • There have actually been four Robins. Stephanie Brown, aka Spoiler, took over the job. She was eventually killed as Robin, but that didn’t stick.

      • Not to get all Comic Book Guy, but there have been five Robins: Dick Grayson, Jason Todd, Tim Drake, Stephanie Brown, and now Damian Wayne.

      • AMONGST our Robins are Dick Grayson, Jason Todd, Tim Drake, Stephanie Brown, Damian Wayne, and possibly Carrie Kelley. And maybe Bruce Wayne…I’ll come in again.

  3. What about willful defiance-style actions? To what extent are parents or guardians responsible for stopping child-heroes from crime-fighting if said children actively circumvent or defy parental restrictions?

    Obviously, Captain Marvel’s parents, for instance, are not legally responsible for his self-endangerment when they have no idea the Superman-like hero is really their darling little boy. But what if they found out? Presumably, forbidding him from putting himself in such danger would be required of careful and protective parents, since he can and does get hurt from time to time and his enemies absolutely would kill him if they could. But what if he refused to stop? Just how forceful are his parents required to be to stop him?

    Keep in mind that reporting him to authorities to try to get help might count as reckless endangerment by virtue of outing the superhero’s identity as a small boy.

    If he is defiant, how severe are they required to be to not be guilty of negligence? How severe CAN they be before that, itself, is considered abuse?

    The case of superpowered children who won’t NOT fight crime seems to be a hard one for parents who know. If they do the “I’m so proud my boy’s a responsible and good kid” thing, they likely could be jailed for negligence and have the kid legally taken away. If they try to stop him, though, and he’s unwilling… After all, most parents who are considered “good parents” would raise kids who want to help others. Kind of a mixed message when Mom and Dad tell you to always do your best to help others out, then tell you “no! You can’t put on a cape and mask and go rescue the orphans from the Joker!”

    For that matter, is a child who defies his parents to go out and fight crime, but manages to stay on the Silver Age side of the law (that is, he manages not to break any obvious laws that non-state-agents might step in) doing anything actionable by the legal system?

    • You know, in the Marvel Universe, whenever a politician argues for “mutant registration” it is always because mutants are a considered a public danger. Of course then parents of mutants do NOT want people to know their kids are mutants. The argument should be “Do you want your kid to grow up to join the X-Men and die in a bloody battle with Mister Sinister? Register your kids now with the U.S. government so we can know what your kids can do and be able to keep tabs on them and keep them safe!” Brilliant.

  4. I will merely suggest that people interested in the subject read Rick Veitch’s Bratpack, in which the adult superheroes do engage in various sorts of direct abuse of their sidekicks as dismissed in the first paragraph of section 1 above.

    • Yes, that’s a good example. I would take issue with the word “dismissed,” though. It is rare to non-existent in the majority of comics, and Bratpack deconstructed the sidekick trope the same way Watchmen deconstructed superheroes in general. So, yes, there is abuse in a comic that intentionally set out to show sidekicks as abused, but that doesn’t necessarily mean that sidekicks in other comics are abused, behind the scenes or otherwise.

  5. What about OSHA?
    I see Batman utilize personal protective gear, such as custom hard-hat and breathing apparatus, but Robin is in tights in a north east coast city in winter traveling through sewers and open construction sites on a routine basis.

    • In this case I don’t think OSHA regulations would apply, since I don’t think Batman and Robin are working. But that’s a good topic to consider for employed superhero teams like the Avengers.

  6. Couldn’t recruiting a child (even one’s own) to dress in “colors” to defend one’s turf fall under a variety of anti-gang laws? While we see Batman as doing a good thing, he is training teenagers to tangle violently with what could be construed as rival gangs, no?

    • I’m fairly sure that Batman wouldn’t fall under the legal definition. Generally a gang needs to have at least three members (five by the U.S Code, found through Cornell University), they have to at least plan for criminal activity (which isn’t exactly clear for Batman) and it usually has to intimidate and/or effect commerce (which is a really tricky one).
      Ultimately Batman’s activities (and those of the people who help him) seem to be far closer to vigilantism than the activities of a street gang, with different legal standards and opinions.

      • The commerce part is actually less tricky than you might think. That section of the law is only there to ensure its constitutionality via the Commerce Clause. The Supreme Court has found that the reach of the Commerce Clause is very long indeed. The power to regulate commerce even reaches to illegal commerce (e.g. the market for illicit drugs). See, e.g., Gonzales v. Raich, 545 U.S. 1 (2005). So, for example, it’s plausible that if the hypothetical “Batman Gang” illegally busted up a drug dealing operation, that would suffice to “affect interstate commerce” in the illegal drug trade.

        Now, whether that seems like a sensible interpretation of the Constitution is another question entirely and one hotly debated by both scholars and members of the Supreme Court.

  7. Wing was the sidekick and chauffeur of the Crimson Avenger.

  8. What if a Private Military Company brought an employee under 18 to work in a warzone, i.e. Iraq? Even if it were a dangerous one like Cable’s organization Six Pack would that still count as endangerment?

  9. And in THE DARK KNIGHT RETURNS, Batman was actually charged with “child endangerment”.

  10. The Secret Six operate for profit as mercenaries and have a minor — Black Alice — in their ranks.

  11. Captain America and Bucky would be an example of a minor sidekick of a government agent. Although Bucky was presumably paid.

  12. Scratch Martin

    I’m surprised no one mentioned Rose Wilson’s time being drugged to operate as her father Deathstroke’s sidekick. Of course that brings in some additional questions about whether Rose is accountable for her criminal conduct while under the influence of the mind-altering drug, as well as whether Deathstroke was responsible for said criminal conduct (which I’m sure he was.)

    I only bring the Wilson’s up because they were the first example I could think of when you asked about a “superhero” (actually a villainous vigilante) who was in it for the money (Deathstroke is a mercenary) employing a teenage sidekick.

    Oh yeah. And Cassandra Cain’s father training her to be the ultimate assassin, to the point that he never even taught her how to talk? Also a fascinating subject.

  13. Since Gotham City is traditionally located in New Jersey, how might state laws in NJ regarding child endangerment change to situation, if at all?

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