This is the third post in our series on the Marc Andreyko run of Manhunter (prior posts one and two). Volume Three is quite a bit lighter on the overt legal issues, so this will be a short post for the sake of completeness. In fact, there’s really only one issue of note. Spoilers follow, as always.
I. Murder by Psychic Possession
At this point Kate has resigned as a federal prosecutor and now works as a criminal defense attorney. Her client in this volume is Doctor Psycho, on trial for telepathically commanding several civilians to kill a gang of villains who wouldn’t follow his orders. It’s not made clear, but Psycho is apparently on trial for murder. We’ve previously considered whether someone subject to mind control would be responsible for any crimes they are ordered to commit (short answer: no), but this cases raises a different question: is the mind controller himself criminally liable for acts committed by people under his control?
For clarity, we’ll refer to three people here: the telepath, the intermediary (i.e. the person being controlled), and the victim (i.e. the ultimate victim of the crime).
The answer here is a probably yes, under one of two theories. If the intermediary is indeed under the control of the telepath, then that person is simply an instrument used to commit the crime, no different from a tool in the hands of the telepath.
If, on the other hand, the intermediary was not so thoroughly controlled by the telepath as to absolve them of legal responsibility (e.g. they were still fundamentally in control of themselves), then the telepath becomes a conspirator. Effectively the telepath suggested a crime, the intermediary agreed, and (in jurisdictions where this is required) at least one step was taken in furtherance of the conspiracy. This opens the door to conspirator liability for the telepath. He or she would be liable for the separate crime of conspiracy as well as all crimes committed in furtherance of it.
We should note one possible loophole, however: in many jurisdictions, particularly those that have adopted the Model Penal Code, “[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). An “act” is defined as “bodily movement whether voluntary or involuntary.” MPC § 1.13(2) (emphasis added). So, literally speaking, a telepath who can control someone’s mind without voluntary bodily movement (which covers most telepaths) may not be criminally liable.
However, the MPC does not actually specify that the required bodily movement be the defendant’s. One possible reading of § 2.01(1) would be “[a] person is not guilty of an offense unless his liability is based on [an action and its accompanying state of mind] which includes (a voluntary [bodily movement]) or (the omission to perform an act of which he is physically capable).” Under that reading, a telepath would be guilty of any crimes involving voluntary bodily movements intended by the defendant but would only be guilty of a crime of omission if he or she was physically capable of the act himself or herself. In other words, a telepath wouldn’t be liable for failing to command someone else to perform an act that the telepath wasn’t physically capable of. But the telepath would be liable for causing someone else’s body to commit a crime. This seems like a fair result to us.
Telepaths are probably guilty of crimes they command others to commit, even if it takes a little creative statutory interpretation to get there. Stay tuned for the next post in this series: the next volume features Wonder Woman being charged with murder!