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:
- As a general rule, no employees under 16 are allowed
- except a child employed by a parent or guardian (subject to part B, below)
- 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
- 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
- except mining and manufacturing are still out
- except a child employed by a parent or guardian (subject to part B, below)
- As a general rule, employees from 16-18 are allowed
- 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!
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.