Dollhouse was the 2009 Joss Whedon sci-fi (horror?) show starring and produced by Eliza Dushku. As with some other Whedon projects, it’s also a comic book series.  The basic premise is that a major pharmaceutical corporation has developed (but not perfected!) the technology to basically scoop out a person’s personality and memories and then write a new personality and set of memories in the brain. Repeatedly, and at will. This is at least as horrific as it sounds.

As it turns out, there isn’t a whole ton of legal analysis to be done here, as the show and its writers are entirely aware that what’s being done here is both morally repulsive and illegal (though they don’t go into specifics), and the main arc of the show is the efforts of a few characters to try to bring down the Dollhouse. But there is one really interesting issue that touches on something we talked about a few weeks ago with Castle, namely the definition of “death” used in the legal system. There aren’t really any spoilers inside, as we won’t be talking about many plot details beyond the basic premise, but you have been warned.

I. Are “Treatments” Murder?

The main question here is whether wiping someone’s mind as the Dollhouse does counts as murder. Several of the characters suggest that it amounts to such. And morally speaking, there’s certainly an argument to be made that they’re right. But this isn’t a blog about moral philosophy or metaphysics—and the show itself is deliberately agnostic as to the latter—it’s a blog about law and legal theory. And as we discussed in the link above, the legal system has a pretty clear and unambiguous definition of “death,” which doesn’t apply here at all. The actives’ bodies are completely uninjured by the Treatments, and their brains don’t even seem to be significantly impaired.  What’s more, the process is reversible.  The science of this is beyond farfetched, but whatever. What they’re doing here isn’t murder, according to the law.

This is the right result too. If it were, any time a person’s personality were lost or seriously altered, the person would effectively be “dead”. This is not what we want. People with Alzheimer’s aren’t dead until they’re dead. Same goes for people who suffer traumatic brain injuries or who suffer from amnesia, whether temporary or permanent. And think about people who suffer through psychologically traumatic experiences like war or crime. No, we already have cases where people’s personalities are seriously messed with, and we don’t and shouldn’t recognize that as murder, if for no other reason than doing so would make it possible for someone to be “killed” more than once.

II. Are “Treatments” Illegal?

The question then becomes whether Treatments are breaking the law in any other respect. And let’s just skip the obvious ones like prostitution, theft, breaking and entering, etc. that the show obviously knows are illegal. The show seems to be basically aware that what the Dollhouse is doing is illegal, but it never really spells out exactly how. The question is whether the Treatments, as such, and the use of actives, even for entirely legitimate purposes (say, providing extra doctors for a disaster area, or extra teachers for a failing school district) is illegal.

For starters, there’s a question of contract. All of the actives are at least theoretically volunteers of some sort, though it’s implied that there is some degree of coercion or at least blatantly taking advantage of people. If the implications are true, the contracts may be entirely void, as agreements made under duress are not enforceable. But that aside, one cannot consent to serious bodily injury. The law just won’t permit it. And there’s a really good argument to be made that Treatments do constitute “serious bodily injury,” which is defined in 18 U.S.C. § 1365(h)(3)(D) to include “protracted loss or impairment of the function of a bodily member, organ, or mental faculty” (states have similar laws or common law rules). Treatments certainly seem to involve “impairment of the function of. . . a mental faculty.” So because they cannot be consented to, Treatments almost certainly constitute assault. Relatedly, because actives are frequently injured in their “engagements,” the Dollhouse is also probably responsible for those injuries too, because they knowingly put the active in a position where they would likely be injured, and literally brainwashed them into going. Again, because this isn’t something to which one can consent, there’s a legal problem.

So that, right there, is probably enough to render the Dollhouse entirely illegal. But there are also laws against both human trafficking and “peonage,” or involuntary servitude, which is both prohibited by the Thirteenth Amendment and a violation of a variety of federal statutes (18 U.S.C. ch. 77). Because the actives effectively cease to have agency once they enter the Dollhouse, that looks a lot like slavery, and really, who is going to make the Dollhouse release its actives once their “contracts” are up? Certainly not the actives, and as the Dollhouse effectively disappears its actives upon intake, it’s not like anyone is going to know where they’ve gone.

Then there’s more general stuff like money laundering. There’s actually a really good description of what has got to be money laundering in the series, though it isn’t described as such. It’s likely that a US Attorney would be able to come up with enough counts to get even a lenient plea deal to be dozens of years in federal prison. So yes, what they’re doing really is illegal, and there really are laws against this sort of thing.

III. Who’s Responsible for Crimes the Actives Commit?

Actives frequently commit crimes at the behest of either the Dollhouse itself or its clients.  So who is legally responsible for those crimes?  There are three possibilities: the Dollhouse (and its employees), the active (i.e. the programmed personality), and the original personality.  Intuitively it seems like the Dollhouse should be responsible, as the Active personalities are tailor-made to be receptive to committing whatever crimes are required of them.  As it happens, this intuition is correct.  The Dollhouse and its employees are pretty clearly guilty of solicitation and conspiracy at a minimum, and depending on one’s view of free will one could argue the Actives were simply an instrument by which the Dollhouse committed crimes.

What about the rest?  The original personalities are likely not liable, since it seems that they were not particularly well-informed regarding what they (or at least their bodies) would be doing for the next five years when they signed up.  They can’t even be liable under 18 U.S.C. § 1593A (“benefitting financially from peonage, slavery, and trafficking in persons”) despite the substantial money and other compensation they receive at the end of their service, because statutes generally can’t be used to prosecute people who are the victims of the crimes said statutes are intended to prevent.

Another possible defense for the original personalities is an analogy to involuntary intoxication.  Effectively, their minds have been involuntarily altered so as to cause them to commit a crime they ordinarily wouldn’t, and thus it makes little sense to punish the original personality (this is assuming that the original personality has been replaced by the time of the trial).

The actives (i.e. the programmed personalities) are a little different.  Although they are often programmed to have little or no moral compunctions about committing crimes required by a particular mission, the law would probably still view the actives as free agents who could choose to do otherwise.  For example, an active programmed with the personality of a career criminal is still culpable for a crime just as the career criminal would be.

So if the active personality is in place at the time of the trial, what’s to be done?  Could the law mandate the return of the original personality?  This is a tricky one, but we think the law could condone that course of action.  A good analogy may be to involuntary psychiatric treatment of a person who is a danger to themselves or others.  The treatment may effectively “kill” the dangerous personality, but the law condones it because of the safety benefit to society and the mentally ill person.  And arguably this fits the goal of rehabilitation, which is one of the purposes of the criminal law. It also fits with the basic idea that while wiping and reimprinting personae is evil, it doesn’t necessary count as death.

And what if the original personality has been lost?  In that case, other purposes of the criminal law come into play, such as deterrence and incapacitation.  At that point, punishing the Active personality in the usual way (e.g. incarceration) makes sense.

IV. Conclusion

While Treatments are not, in fact, murder, that doesn’t change the fact that what’s being done here is illegal in a variety of ways. This is one time where the writers do seem to be aware of this fact, but a lot of the discussions along those lines seems to be either of the “There has just got to be a law against this!” type or of a more general variety, involving the sorts of relatively mundane charges that any criminal organization would face under similar circumstances.  So while there would almost certainly be laws passed outlawing this kind of thing should anyone manage to actually invent this technology, using it (at least in the way the Dollhouse does) is already illegal in a myriad of ways.  The purpose of the new laws would be two-fold: signaling that society disapproves and providing for specific (likely very high) penalties.

23 responses to “Dollhouse

  1. Is there any issue around ‘body swapping’ ? The show eventually suggests that the aim of the tech (or at least its use) is to ultimately allow rich people to live forever in young bodies – might actually be specifically stated at the end of season 2. Whilst i am not sure that this is a sensible idea since i cannot see how the source personality benefits from having multiple younger versions of himself running around it raises issues to me.

    1) Could someone evade incarceration this way?
    2) Could someone evade liability with a body swap defence?
    3) Could someone undergo punishment this way (either by having a good memory removed or by having a horrible memory such as 200 years solitary confinement inseted)
    4) Could someone remove a facet of personality and claim that they are effectively no longer the same person thereby not prosecutable?

    • “Could someone evade incarceration this way?”

      Do you mean by having a copy of their personality placed into a different body, leaving the original to languish in prison? I guess that would be effective, but it would still be illegal because there’s no legal way to get the destination body.

      “Could someone evade liability with a body swap defense?”

      Do you mean by claiming a variation of the mind control defense? “It wasn’t really me, it was another person inhabiting my body, who then replaced my mind and memories?” As with mind control, that’s likely a valid defense, if you can prove it.

      “Could someone undergo punishment this way?”

      Punishing someone by removing good memories is probably cruel and unusual. It’s similar to corporal punishment, which is basically forbidden by the Eighth Amendment. See, e.g., Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968). Deleting bad memories of incarceration as a way of easing the pain of punishment is almost certainly permissible. It’s hard to imagine how the government could forbid it, and the incarceration would still be a punishment (you can erase the memories but you’ll never get those years of your life back; even with life extension via body swapping there’s still the opportunity cost of being in prison during that time).

      “Could someone remove a facet of personality and claim that they are effectively no longer the same person thereby not prosecutable?’

      No, this wouldn’t work. The law doesn’t equate a personality with the person. Besides, it would be open to abuse: commit a crime, swap personalities, get acquitted, swap back.

      • If a person A with B’s memories still counts as A, and is still considered to bear responsibility for his actions, then you get odd results. It should be possible to swap A and B, for B-with-A’s-memories to commit a crime, and to swap back. From the point of view of the law, B has committed the crime. From the point of view of the participants, A managed to commit a crime and B got punished. (A could still be punished for solicitation, conspiracy, etc., but even that might not be true in a scenario where A and B were both swapped involuntarily.)

        You try to solve this by suggesting that the original personalities are not liable but the Actives are liable. The trouble with this argument is that this only makes sense if the original personality and the Active are considered to be different people, and your references to the legal definition of death would imply that they are not different people, but they are one person who is in a state of intoxication or whatever.

  2. “because statutes generally can’t be used to prosecute people who are the victims of the crimes said statutes are intended to prevent.”

    Is this an actual legal principle or just a fond hope? I’m thinking of all of those cases in the new a year or so ago where underage students were being prosecuted for child pornography when they started sexting.

    • It’s a legal principle, but not a very broad one. The best example is to the Mann Act, which is a federal law prohibiting the transportation of a woman across state lines for prostitution or other illegal purposes. In Gebardi v. United States, 287 U.S. 112 (1932), the Supreme Court held that a woman cannot be held liable for conspiracy to violate the Mann Act even if she acquiesces or consents to be transported for the purpose of prostitution.

      However, the Court’s decision hinged on the particular language and structure of the Mann Act: “we perceive in the failure of the Mann Act to condemn the woman’s participation in those transportations which are effected with her mere consent, evidence of an affirmative legislative policy to leave her acquiescence unpunished.” The Court distinguished the case from United States v. Holte, 236 U.S. 140 (1915), but did not overrule it. In Holte, the Court held that a woman could be held liable under the Mann Act if she took a more active role in the transportation (e.g. if she “should buy the railroad tickets, or should pay the fare from Jersey City to New York”).

      In this case, the federal human trafficking laws are clearly addressed to the people running the show rather than the victims. For example, 18 U.S.C. § 1584 defines “sale into involuntary servitude” as selling “any other person” into involuntary servitude. Selling oneself into involuntary servitude is not covered. Further, there is no minimum amount of benefit required by § 1593A (in fact it prohibits “receiving anything of value”). Strictly read, it could apply to a slave who is given no more than bread and water. It’s pretty clear that wasn’t Congress’s intention.

      • Mad props for referencing the Mann Act. Flashback to 1L criminal law and Jack Johnson’s case. Nice.

    • James is correct. The reason those kids were prosecuted is that a lot of them were sending pictures of each other around, or possessing pictures of other kids, both of which are prosecutable offenses, as the victim and trafficker are different people. As far as I know, there hasn’t been a successful prosecution for a kid sending a picture of himself/herself.

      • The Justin Berry case has relevance here. ( He was granted immunity instead of being prosecuted in order to prosecute his customers.

      • Chakat Firepaw

        IIRC there has been mention on Dispatches from the Culture Wars of some cases where someone was either convinced or plea bargained for sending pictures of him/herself.

        I can also say that the law on this point is clear in Canada: We actually have a supreme court ruling that it is illegal to distribute a picture of yourself if that picture meets the definition of child pornography. The exception being that it is legal to give said picture to another participant in the pictured act if said act was itself legal.

      • Don’t know if there have been any prosecutions yet, but Texas Senate Bill 407 (passed in 2011) makes it a misdemeanor for minors to send, create or redistribute text messages that contain sexually explicit images of themselves and fellow teenagers. First offense is a Class C misd., second is Class B, etc.

  3. Given this technology, there’s one foolproof way to “avoid” incarceration for anything short of a life sentence:
    1) Before incarceration, swap to a personality that has no problem with prison life, and is even guaranteed to have “good behavior” to reduce the sentence.
    2) After incarceration, swap back to the original personality, with no memory of years of prison life (with their technology, you might even be able to add in memories of a few years of vacation on a tropical island or something).

    But it’s hard to avoid the idea that eventually this would be used instead of incarceration for the worst cases – why pay to keep a convicted murderer alive in prison for decades, when you could swap out his criminal personality with a more civic-minded one who could go out and do volunteer work instead? And if you do the swap, and find out years later that he was actually innocent, what do you do then – especially if the new personality is happy with lots of friends and maybe even a new family?

    • The method has a catch: your body is still old and you still paid the opportunity cost of not being around during those years of incarceration (e.g. you weren’t making any money, other people grew old without you, etc).

      Regarding your second idea: the technology actually provides a shortcut. The state could offer convicts a choice: serve your (very long) sentence or submit to a personality modification and get a shorter sentence or even no sentence at all. If a criminal could be instantly and effectively rehabilitated, that would be very tempting. It’s possible that it couldn’t be mandated in all cases, but a lot can be justified with a broad enough definition of mental illness. (that is to say, the state could probably even make it mandatory in a lot of cases rather than offering a choice)

      • This was done on Babylon 5–murderers were “mind-wiped” and given a generic, docile personality implanted with a desire for community service.

      • Personally, I question whether this would be an 8th Amendment violation. I’m all for the idea logically, because it sounds great. But in practice, I have always been of the opinion that psychic rape is worse than physical rape.

  4. If John Smith hires an Active to put his personality in, and then the Active printed with his personality commits a crime, is he liable?

    • Again, the principle we’re operating from here is that the person who commissions the Engagement is ultimately the one liable for any consequences. Doesn’t matter what personality happens to be operating in the active, could be the client, could be someone else, could be a constructed persona. Doesn’t matter: the client is liable.

    • If Original Smith already had a plan to commit the crime at the time he imprinted the Active, then Original Smith is pretty clearly liable under several possible theories.

      The straightforward view is that Original Smith intended for the crime to occur and took steps to commit it.

      Another view is that he could be liable as a co-conspirator. Just because Original Smith and Active Smith share the same mind does not make them a single person. The rationale of the prohibition against conspiracy is that two people may accomplish more (and more dangerous) crimes than a person alone, and having a co-conspirator makes one more likely to go through with it. Making Original Smith liable as a co-conspirator serves those rationales.

      However, if Original Smith didn’t intend to commit the crime at the time of the imprint, but instead Active Smith came up with the idea independently, then Original Smith would not be liable. For example, suppose Original Smith is relaxing at home following the imprint, while Active Smith goes into town, where he sees a diamond necklace in a shopfront. If Active Smith then steals the diamond necklace, it’s clear that Original Smith can’t be held liable because Original Smith lacks both the required intent and the required physical action necessary to be liable for the theft. The fact that Original Smith probably would have committed the same crime had he been in Active Smith’s shoes doesn’t matter because that’s simply not how the law defines criminal liability.

      • Melanie Koleini

        Your analysis assumes John Smith’s contract with the active is valid. The original analysis comes to the conclusion that you probably can’t consent to be an active under current law. If that is the case, John Smith is probably responsible for his active’s crimes.

      • The fact that one can’t consent to be an active just means that the act of making someone an active is itself illegal (i.e. the wiping/imprinting process is an assault and the continued condition is involuntary servitude). It does not mean that the imprinter is necessarily liable for anything the active does.

        There are theories under which the the imprinter would be liable (e.g. duress, solicitation, conspiracy, principal liability), but I don’t think they would be automatically liable for everything the active did simply by dint of having imprinted the active.

  5. Very interesting! I just finished watching this series, and the legal ramifications hadn’t really occurred to me (like you said, the characters just assume that it’s all highly illegal). I’m glad to know that the law does match up well with common sense in this scenario!

    A side note: You said that Dollhouse has a good description of what has to be money laundering. I must have missed that, what episode was it in?

  6. On the issue of consent: The rationale used by the Dollhouses is that their recruits consent in advance to everything that’s done to them during their term of service. But I seem to recall something mentioned in the comments to an earlier thread here, a legal principle pertaining to the definitions of rape. I don’t remember exactly how it went, but the idea was that earlier consent doesn’t count if the person is unable to consent at the time of the act. For instance, if someone agrees to have sex with you, and then you drug them and have your way with them, it’s still rape because they didn’t have the power to say no at that point, to change their minds about consenting if you did something they didn’t want. So by that principle, the “consent” of the people who agree to become Actives is not legally valid.

  7. This is a deep topic (what, exactly, counts as a “person”) with a lot of different takes in SF/F literature. I’d be interested to hear what you guys think of the Babylon 5 perspective – in one episode (“Passing Through Gethsemane”), a convicted murders is sentenced to “death of personality,” which amounts to a Dollhouse-style wipe and implantation of a community service-oriented personality.

  8. Pingback: Dollhouse: Haunted | Law and the Multiverse

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