Monthly Archives: December 2011

The Invisible Woman and Indecent Exposure

Today’s post was inspired by William, who pointed us to Amazing Spider-Man #657.

In the issue, Spider-Man reminisces with Mr. Fantastic, the Invisible Woman, and the Thing about the recently deceased Human Torch, each one telling a story about him.  The Invisible Woman’s story involves a fight with members of the Fearsome Four.  While searching for the Four, Spider-Man and the Invisible Woman find the Human Torch signing autographs.  Seeing an opportunity to bring him down a peg, Spider-Man sneaks up and pantses the Human Torch.  Sure enough, the Fearsome Four choose that moment to show up.  With the Torch too embarrassed to fight pants-less, the situation looks grim until the Invisible Woman realizes how she can turn the tables.  Using her power to make things invisible, she effectively removes the pants of the three Fearsome Four members, who are then easily rounded up by Spidey and the Torch.

As the police take the villains away everything looks like it will turn out okay until the Invisible Woman (aka Sue Storm) explains her trick.  The officer taking her statement says “Ms. Storm, I’m sorry, but if what you say is true, I’m afraid I’ll have to bring you in as well.”  Asked what she’s being charged with he replies: “Indecent exposure.  She pantsed three men in public.  That’s a serious offense.”  And sure enough she gets arrested and booked, though apparently she avoids conviction.

So, is rendering someone’s pants invisible indecent exposure?  Or if it isn’t, is at least some other kind of crime?  Luckily we know the story took place in New York, so we can refer to the law there.

I. Indecent Exposure

In New York the crime commonly called indecent exposure is called “exposure of a person.”  Exposure of a person is a violation, less serious than even a misdemeanor, and is (basically) defined thus:

A person is guilty of exposure if he appears in a public place in such a manner that the private or intimate parts of his body are unclothed or exposed.

N.Y. Penal Law § 245.01.

As you can see, exposure is defined in terms of the exposed person being responsible for the exposure, rather than being exposed by another person.  So could Sue Storm be guilty of exposure of a person?

Probably not.  As mentioned, the statute is worded in terms of the nude person exposing themselves, not being exposed by another.  The best theory we can come up with is that, if the villains could claim a defense of duress (i.e. that they did not intend to expose themselves but rather were compelled to do so), then perhaps Sue could be liable under the theory that someone who compels another to commit a crime is liable for that crime.  But this is a weak argument because the villains didn’t remove their pants under Sue’s compulsion; rather, she rendered them invisible all on her own.

So if she can’t be brought up on charges of indecent exposure, are there any other options?

II. Assault, Invasion of Privacy, and Emotional Distress

Ordinarily a person who exposes another would be guilty of assault, since normally the only way to do so is to forcibly remove their clothing.  Even someone with the power of telekinesis could still be charged with assault, since even an intangible force can be enough to constitute assault.  See, e.g., Adams v. Com., 534 S.E.2d 347 (Ct. App. Va. 2000) (holding that shining a laser pointer at a police officer constituted assault).  But the Invisible Woman’s power doesn’t seem to touch an object at all but rather to warp light around it.  So she might not be guilty of assault, either.

Scraping the bottom of the barrel we have the torts of invasion of privacy and intentional infliction of emotional distress.  The villains could theoretically try to sue Sue (heh) in civil court, but it would be a hard sell.

III. Defenses

Even if a prosecutor could bring an exposure or assault charge under some theory (or if the villains sued in tort), Sue would have an excellent claim to self-defense and defense of others.  The villains attacked without provocation and clearly intended to kill the Invisible Woman, the Human Torch, and Spider-Man.  Since the heroes would have been justified in killing the villains, something as mild as a minor public humiliation would certainly be a reasonable force.

IV. Conclusion

On the whole this is a pretty good issue (for those interested, it’s collected in Spider-Man: Matters of Life and Death), but we aren’t surprised that Sue apparently managed to beat the rap.

Daredevil #7

There weren’t a lot of legal issues raised in the most recent Daredevil, so this will be a slightly short post, but there are a couple of points, including a nice detail about the tort defense of necessity.  Spoilers inside!

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Are the X-Men Human? A Federal Court Says No

Thanks to Neal for alerting us to a recent episode of Radiolab, which discusses a real life legal issue involving Marvel characters, including the X-Men, the Fantastic Four, and Spider-Man (although the episode focuses on the X-Men).

In brief: Attorneys for a company that imported Marvel character action figures noticed that imported dolls were subject to a higher tax than toys, per the Harmonized Tariff Schedule.  More importantly, dolls were distinguished from toys by “representing only human beings and parts and accessories thereof.”  The company sued for a declaration that the action figures did not represent human beings and so should be classified as toys, subject to the significantly lower tax.  Ultimately the Court of International Trade agreed with the company and held that mutants, the Fantastic Four and related villains, and Spider-Man and related villains were all non-human.  Toy Biz, Inc. v. United States, 248 F.Supp.2d 1234 (Ct. Int’l Trade 2003).

The case actually went on for several years, and some earlier decisions in the case were also reported: Toy Biz, Inc. v. United States, 123 F.Supp.2d 646 (Ct. Int’l Trade 2000); Toy Biz, Inc. v. United States, 132 F.Supp.2d 17 (Ct. Int’l Trade 2001); Toy Biz, Inc. v. United States, 219 F.Supp.2d 1289 (Ct. Int’l Trade 2002).  The 2001 opinion shows that Toy Biz was not universally successful: a Silver Samurai figure was held to be a doll, for example.

A final note: the Harmonized Tariff Schedule has since been changed to eliminate the distinction between dolls and other toys, which are now in the same category.

Update: Thank to Stephen for alerting us to the related case of Kamar Int’l v. United States, 10 C.I.T. 658 (Ct. Int’l Trade 1986).  That case dealt with whether E.T. the Extraterrestrial dolls represented an “animate” object, which would result in a lower tax rate than for toys in general (the customs classifications have changed a lot over the years, apparently).   The Court of International Trade agreed with the plaintiff, despite the United States’ arguments that E.T. was a fictional alien and thus not an animate object.  The Court cited as precedent the classification of Star Wars toys as toy figures of animate objects because “as depicted in the movie Star Wars they are living beings endowed with animal life.”  Kamar, 10 C.I.T. at 661.

The Court’s analysis (and the analysis in the Marvel toy cases) shows that sometimes the courts have to look to the “subjective characteristics of mythical or fictitious characters” in order to classify them properly.  It’s almost too bad the distinction between human and non-human toys was abolished, otherwise somebody at Customs could get paid to “research the subjective characteristics of fictitious characters” (aka “read comic books and watch movies”).  Sounds like a pretty nice job to me!

Law and the Multiverse Holiday Special: Batman: Noel

For this year’s Law and the Multiverse’s Christmas post, we’re going to be taking a quick look at Batman: Noel, the graphic novel written and illustrated by Lee Bermejo that came out last month. It’s a sort-of retelling of Charles’ Dickens A Christmas Carol with Batman as Scrooge and various other characters as the ghosts of Christmas Past, Present, and Future. Well, maybe more like Batman’s Past, Present and Future. But it’s set on Christmas Eve, so hey. There you go. The main thing we’re going to be taking a look at is the legality of using wireless tracking devices without a warrant. Continue reading


The inspiration for today’s post comes from Promethee, who suggested we look at Sleeper, a comic series by Ed Brubaker and Sean Phillips.  We’re going to take a look at the premise of the story as well as one of the character’s unusual superpowers.  Minor spoilers inside.

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The Muppets

The Muppets was released a few weeks ago, the first theatrical release in over a decade, and is widely regarded as an excellent addition to the Muppets corpus. But it also contains a bit of legal finagling worth a second look. “What?” you say. “A Muppet movie? With legal conundrums?” Well… yes. In fact, the entire plot revolves around a lease-to-own contract, as pointedly lampshaded by Waldorf… which lampshading is itself lampshaded by Statler, for all your fourth-wall-leaning needs. Continue reading

Magneto’s Scheme in the X-Men Movie

This is a question we got a while back from Christopher, who wondered about Magneto’s evil plot in the 2000 X-Men movie.  In the movie, Magneto devises a plan to win respect for mutants by turning the world’s leaders into mutants, starting with a particularly anti-mutant U.S. Senator, which would force them to see things from the mutant perspective.  But what if the plan backfired, and anti-mutant sentiment led to an effort to remove the leaders from office?  In particular Christopher wanted to know about the President.*  There are four ways we can think of for getting rid of the President: two might actually work, one is tenuous for legal reasons, and one is tenuous for practical reasons.

* If you’re wondering, Senator Kelly could have been removed by expulsion by the Senate itself, impeachment, or constitutional amendment (more on those last two later).  The Senate, like the House, has the power to decide whether its members meet the constitutional requirements for election but may not do so in order to discipline its members.  Powell v. McCormack, 395 U.S. 486 (1969).

I. Impeachment

Strictly speaking, impeachment refers to charging an official with misconduct, not the resulting trial or getting kicked out of office.  It’s basically an indictment.  At the federal level, the President can be removed from office on impeachment for and  conviction of treason, bribery, or other high crimes and misdemeanors.  U.S. Const. art. II, § 4.  Getting the ball rolling requires a simple majority in the House, but conviction requires a two-thirds vote in the Senate.  The conviction cannot be reviewed by the federal courts.  Nixon v. United States, 506 U.S. 224 (1993) (NB: this was a case about a federal judge named Nixon, not former President Nixon, who was almost-but-not-quite impeached before he resigned).  Nor can the new President (i.e. the former Vice President) use the pardon power  to reinstate the ex-President.  U.S. Const. art. II, § 2, cl. 1 (impeachment is expressly excluded from the pardon power).

On the one hand, it’s unlikely that being a mutant would qualify as a “high crime or misdemeanor.”  The phrase is misleading to modern ears, and it encompasses more than just criminal acts and includes maladministration and subversion of the Constitution.  But even these broader terms require some kind of overt act or omission; simply existing as a mutant wouldn’t seem to qualify.  On the other hand, no one is perfect, and some trumped-up charge could probably be dug up.  Besides, the impeachment and conviction aren’t reviewable by the courts: once you’re out, you’re out.

The major downside of the impeachment route is that it’s still a trial, and since the Chief Justice of the Supreme Court would preside over the case, it’s unlikely that Congress could make a complete mockery of the proceedings.  The President would have the opportunity to present evidence and call witnesses, which buys a lot of time for building public support against removal.

II. The 25th Amendment

The 25th Amendment addresses the problem of Presidential succession.  This includes not only what to do if the President dies, resigns, or is removed from office (the Vice President takes over) but also what to do if the President is nonfatally disabled (the Vice President takes over as acting President).  This second option can be voluntary (e.g. for a planned surgery during which the President will be incapacitated) or involuntary (e.g. an unplanned incapacitation).  It’s the involuntary option that interests us because it can effectively be used to stage a coup, albeit one that needs considerable Congressional support.

The way the process works is that the Vice President and the majority of the Cabinet transmit a written declaration of the President’s disability to the President pro tempore of the Senate and the Speaker of the House.  This makes the Vice President the acting President.  The President can then challenge this declaration.  Ultimately, Congress decides the issue: if two-thirds of both houses vote that the President is indeed disabled, then the VP remains acting President.

The advantages here are that there’s no need for trumped-up charges, the executive branch can start the process, there’s no intervention by the judicial branch, the VP immediately assumes power, and Congress only has 21 days to decide the issue, so there’s a limit on how much time the President has to gather public support.  The downside is that it requires a majority of the Cabinet, who presumably are fans of the President, and two-thirds of both houses, which is a higher bar than impeachment.  And it’s probably still pretty difficult to sell mutant status as such a disability that the President couldn’t discharge his or her duties, although some mutations come close, particularly dangerous, uncontrolled ones.

III. Adding a Qualification for Office

Now we come to the legally tenuous approach.  Congress could try to force a new qualification for office on the President, but we don’t think it would work without a constitutional amendment.  The Constitution specifically lists the qualifications to be President and doesn’t provide for adding any new ones.  It’s also not one of Congress’s specifically enumerated powers.  The houses of Congress are explicitly empowered to judge the qualifications of their own members, which suggests they are not empowered to do so for the Presidency.  Finally, Powell v. McCormack and U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) suggest that the qualifications to be President, like those for federal legislators, are constitutionally fixed and cannot be altered by Congress or the states (except by amendment).

Besides, the President would assuredly veto the bill, and overriding it would require a two-thirds vote in both houses.  It would probably be easier to go the impeachment route.

IV. Constitutional Amendment

And here we come to the wildly impractical but guaranteed effective nuclear option.  There’s no reason the President couldn’t be removed by amendment, either explicitly (“Amendment 28: John Smith, currently President of the United States, is hereby removed from office.”) or implicitly by barring mutants from holding office, notwithstanding all that stuff about equal protection and due process.

The downside is that it would be completely impractical unless virtually the entire country were rabidly anti-mutant.  The upside is that an amendment could affect all mutant office-holders at once, which the other three methods could not.

V. Conclusion

Magneto’s plan, though criminal and insane, would probably not have backfired.  Removing mutant politicians from office would have been difficult, fairly slow, and politically divisive at best and effectively impossible at worst.  It’s more likely that the mutant politicians, if they refused to resign, would have stuck around at least to the end of their terms.

Law and the Multiverse Retcon #3

This is the third post in our Law and the Multiverse Retcons series, in which we discuss changes in the law (or corrections to our analysis) that affect older posts.  This time around we’re revisiting another early post, a mailbag post from March.  In that post we considered an Adam West Batman episode in which the Joker and Catwoman were prosecuted by Batman.  One of the issues was whether their plan to pack the jury with henchmen would work or whether they could be re-tried.  Our conclusion was that the acquittal would stand, though there could be other charges (e.g. perjury for the henchmen, since they probably lied during jury selection, and maybe jury tampering for the Joker and Catwoman, or at least their attorney).

As it turns out, however, there is a chance that they could be re-tried.  This has implications not just for this case but lots of other kinds of supervillain courtroom shenanigans, including psychic manipulation of the judge or jury and replacing the judge or jury with henchmen, robot doubles, or shapeshifters.  But before we get to the possible exception, let’s review the general rule against double jeopardy.

I. Double Jeopardy

The Fifth Amendment provides that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”  There are several aspects and limitations to this rule, but we only have to consider two in this case: when is a defendant “in jeopardy” (a.k.a. when does jeopardy “attach?”) and can an acquittal by a jury ever be appealed by the state?

In a jury trial, jeopardy attaches when the jury is selected and sworn in, and this is true of both federal and state courts.  Crist v. Bretz, 437 U.S. 28 (1978).  In non-jury trials jeopardy attaches when the first witness is sworn in.  So it would appear that the Joker and Catwoman were “in jeopardy” at the time of the acquittal.

As to the second question, the general rule is that the prosecution cannot appeal a jury acquittal, an acquittal by a judge, or a judge’s dismissal on the basis of insufficient evidence.  The Supreme Court has stated this repeatedly and in very strong terms:

A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal. … To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that “even though innocent he may be found guilty.” United States v. Scott, 437 U.S. 82, 91 (1978) (emphasis added).

The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal, for the public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though the acquittal was based upon an egregiously erroneous foundation. Rodrigues v. Hawaii, 469 U.S. 1078, 1079 (1984) (emphasis added).

II. Is There an Exception for Foul Play?

The Court’s language, strong though it is, came out of cases where there was no allegation of foul play by the defendant.  Could a defendant really escape liability by bribing a judge or packing the jury?  If so, it seems like that rule would encourage desperate or powerful defendants (and supervillains looking at a life sentence or the death penalty would fit the bill) to go for broke.  Unfortunately for us, such cases are rare enough that there aren’t a lot of court opinions to go off of.  In fact, there’s really only one modern case: Aleman v. Honorable Judges of Circuit Court of Cook County, 138 F.3d 302 (7th Cir. 1998).

The Aleman case was an appeal brought by Harry “The Hook” Aleman, a Chicago mobster who was charged with murder, successfully bribed the judge for an acquittal, and then was re-tried (and ultimately convicted) after the bribery was discovered.  The 7th Circuit affirmed the validity of the re-trial, holding that double jeopardy was not violated because Aleman had never been in jeopardy the first time around because the judge was in Aleman’s pocket from the beginning.  Thus, Aleman was never in any real danger of conviction.

How solidly grounded is this rule?  Aleman appealed to the United States Supreme Court, but the Court declined to hear the case, so it’s hard to say definitively.  And the case has not been cited frequently, so we don’t know what other courts would think of it.  Legal scholars were divided on the issue both before and after the case, with some arguing for a limited exception for fraud while others find no room for it in the Constitution.

What’s more, some scholars that supported the Aleman court’s conclusion have proposed that the exception should be limited to corrupt judges and should not apply to a corrupted jury.  See, e.g., Anne Poulin, Double Jeopardy and Judicial Accountability: When is an Acquittal not an Acquittal?, 27 Ariz. St. L.J. 953, 989-90 (1995).

So, what can we learn from this unusual case?

III. Applying the Aleman Exception

The Aleman rule would seem to apply to the Joker and Catwoman, scholarly commentary notwithstanding.  Here’s how the Aleman court summed up its view:

Aleman had to endure none of these risks [“traditionally associated with criminal prosecution”] because he “fixed” his case; the Circuit Court found that Aleman was so sanguine about the certainty of his acquittal that he went so far as to tell [a witness] before the trial that jail was “not an option”. Aleman may be correct that some risk of conviction still existed after Judge Wilson agreed to fix the case, but it cannot be said that the risk was the sort “traditionally associated” with an impartial criminal justice system. Aleman, 138 F.3d at 309.

In the case of the Joker and Catwoman there was similarly no risk because the entire jury consisted of their henchmen.  Their attorney engaged in no cross-examination and even declined to deliver a closing argument, stating only that “we feel sure that the jury will bear out the truth in this case.”  It seems clear that the defendants were never in danger.

But what if they hadn’t gone whole hog?  What if the jury was only partially packed with henchmen?  Would that be enough risk?  Or what if the jury were initially uncorrupt but were later psychically manipulated or bribed?  The Aleman rule seems to imply that as long as there is some risk after jeopardy has attached, then the acquittal must stand.  The implication for a supervillain seems to be not to corrupt the jury until after the trial has started or to leave a couple of token regular jury members in place and hope that they are convinced by the others, although this approach risks a hung jury, mistrial, and re-trial.

Another lesson is not to be as brazen about the fix as the Joker and Catwoman’s attorney was.  In the Aleman case the defense still put on a show, even though they knew what the result would be.  It ultimately didn’t work, but it took about 16 years before the sham was discovered.

On the other hand, outright replacement of the jurors partway through a trial seems like a surefire route to a mistrial, however, as in the case of jurors who become unavailable or are dismissed.  Any robot doubles, shapeshifters, or henchmen would need to be put in place before the jury was sworn in for sure and quite possibly before jury selection.

IV. Conclusion

Under some circumstances it may be possible for a supervillain to abuse the double jeopardy rule despite the Aleman exception.  Nonetheless, the supervillain wouldn’t get away completely free, since he or she would still be guilty of jury tampering and potentially many other crimes (e.g. conspiracy and fraud), but that might be preferable enough to more serious charges to make the gamble worth it.


Preacher is the iconic series by Garth Ennis, starring the Rev. Jesse Custer, a Texas preacherman who, accidentally possessed by some kind of supernatural being, unintentionally flattens his church, kills most of his congregation, falls in with a vampire, and goes on a rampage across at least two continents. So it’s basically a traditional, conservative morality play which maintains decent standards of… no, just can’t do it. It’s one of the most violent, disturbing, and alternatively terrifying, disgusting, and downright irreverent but also most interesting comics that’s been written in the last two decades. It’s up there with Sandman in terms of inventive comics, particularly in the non-superhero genres.

Those already familiar with the series will know that Custer gains the power of The Word, i.e. the ability to order anyone to do basically anything, and have them do it. Literally. If it’s impossible, they’ll either do it or (sometimes and) die trying.

Which raises an interesting series of legal questions related to theories of conspiracy and accomplice liability, but also some more subtle ones. There aren’t really any spoilers here, but we’ll move the rest inside for length’s sake.

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Year One Giveaway Winners!

Congratulations to the winners of our Law and the Multiverse: Year One giveaway!  Our winners are:

Tom Wilder
Chris Amico
Walter Biggart
Jack Flynn
Pat Gunn

Each of them has won a copy of Batman: Year One!  We will contact the winners shortly to arrange shipping.  Thanks to everyone who entered and all the well wishes we received as well.  We’re looking forward to another great year!