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.
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.