Buffyverse Vampires and Criminal Liability

The inspiration for this post comes from an email from Will, who asked about vampires in Joss Whedon’s Buffy the Vampire Slayer and Angel.   Buffyverse vampires are a bit different from most mythological or fictional vampires.  For legal purposes, the biggest difference is that Buffyverse vampires retain their memories from mortal life but are possessed by a demon’s soul, so they tend to be evil.  This raises some interesting questions about vampires’ potential for criminal liability, especially for the character of Angel.

Note that I’m going to gloss over the issue of whether vampires are subject to the human justice system in the first place.  It’s arguable that, as non-humans, they lack legal rights.  From a legal perspective, the original human has died  because their cardiovascular functions have irreversibly ceased.  Cal. Health & Safety Code § 7180(a) (the California version of the Uniform Determination of Death Act).  Since they’re dead, they can’t be human.  That’s not very satisfying or interesting, though, so I’m going to ignore it.

I. Mental Capacity

Most vampires seem to be mentally competent, or at least as competent as they were in life.  Some of them aren’t very bright, but they aren’t anywhere near the level of mental incapacity required to be a defense under California law.  In California, the test for mental incapacity is the same as for insanity:  the accused must be incapable of understanding the nature of his or her act or distinguishing right from wrong. People v. Phillips, 83 Cal. App. 4th 170 (2d Dist. 2000).  Vampires seem mentally capable of understanding what they are doing, and they can distinguish right from wrong.  It’s pretty hard to revel in doing evil acts if you don’t understand that they’re morally wrong.

II. Insanity

For pretty much the same reason, it’s hard to argue that vampires are insane, at least under California’s M’Naghten test, which is defined by statute.  Cal. Penal Code § 25(b).  Under a different test, such as the irresistible impulse test, they might be found insane, but California does not recognize that test. People v. Severance, 138 Cal.App.4th 305, 324 (3d Dist. 2006).  The Severance case is actually surprisingly applicable: “The gist of defendant’s claim of insanity was that after he was hit on the head in January 2000, Satan took control of his mind and body and he did things he does not normally do—namely, rob two stores. In the words Flip Wilson playing Geraldine, “the Devil made him do it.” In essence, defendant’s claim of insanity was a claim he acted under an “irresistible impulse.” The irresistible impulse test, however, has long been discredited in California as a test for legal insanity.”  Severance, 138 Cal.App.4th at 324.

III. The Special Case of Angel

The character of Angel is (almost) unique among vampires.  Through various means throughout Buffy and Angel, his human soul is restored, lost, and restored again.  In his human-souled state, he is called Angel; his demonic form is called Angelus.  Angel feels remorse for the terrible deeds of Angelus and works to set things right.  Does this change anything?  From a legal perspective, I think not.  Essentially, he is akin to a person with a recurring mental illness that doesn’t quite rise to the level of insanity.

One might argue that Angel shouldn’t be punished for Angelus’s crimes.  After all, it’s not like Angel is likely to commit any of the same crimes.  But actually, incarcerating Angel would serve the function of incapacitation (i.e. preventing Angel from turning into Angelus and wreaking havoc).  So it wouldn’t solely be an exercise in (mostly pointless) retribution.  And arguably it would also serve a deterrent function for other vampires by showing that they can be caught and punished by humans.  They may be evil, but they’re not stupid.  Well, mostly.

IV. A Side-Note About Blood

Since the vampires in the Buffyverse can survive on animal blood, they can’t claim the defense of necessity for drinking human blood, at least non-consensually.  Angel generally drinks animal blood, so that’s not a problem for him, and California allows animal blood to be sold for human consumption. 3 CCR § 904.17.

V. Conclusion

Assuming the vampires are considered human (and thus capable of committing crimes in the first place), then their vampirism probably won’t save them from criminal liability.  In Angel’s case, that means he’s potentially liable for a couple centuries’ worth of killing, since there is no statute of limitations on murder.  The animal blood is probably legit, though, so I’m sure that’s a certain comfort.

78 Responses to Buffyverse Vampires and Criminal Liability

  1. Since Buffy (and to a lesser degree, others) keeps sending them back to Hell, won’t extradition be a problem?

  2. One small thing — in the Buffyverse, the vampires are not possessed by the demon’s soul, the soul disappears, as stated by Angel in the first season episode “Angel” (see http://en.wikiquote.org/wiki/Buffy_the_Vampire_Slayer, in the quotes under “Angel”)

    • I dunno, Buffyverse vampires are usually spoken of in terms of possession. See, e.g., the Buffy Wiki’s article on vampires, which uses that term throughout. In Season 1, Episode 2 Giles describes them as “a human form possessed, infected by the demon’s soul.”

    • Angel and Buffy (the series that is) seemed to go back and forth on what vampires are. I suspect this confusion was created by a combination of many scripts over many years and the introduction of ‘good’ vampires. Trying to figure out the metaphysics without resorting to fan theories may not be possible.

      • From Buffy’s description in “Lie to Me” (season 2) it sounds like a demon is actually born when a vampire is created- “You die, and a demon wakes up inside, and it walks and it talks and it has all your memories but its NOT YOU.” The demon probably thinks it IS the human person turned evil though (or as good as) since it doesn’t have any other identity.

  3. Ordinarily, I would never presume to compare myself to the mighty Joss, but this time I can’t help it because I *just wrote a book on this subject*.

    Not kidding. All about the legal rights and liabilities of vampires, werewolves, and other supernatural creatures. The main plot is about the trial of a zombie for eating brains.

    Really.

    http://onthebird.blogspot.com/p/legal-fiction-series.html

  4. But if Buffyverse vampires are possessed by a demon, isn’t that similar to someone being mentally dominated by a psychic who takes over your mind and forces you to commit a crime? I’m too lazy to look up that post, but IIRC, the person being dominated was not responsible, if they could prove the domination.

    I’d think it’d be the same here — the actual criminal is the demon who took over the body. And since Angel has proven that the soul is recoverable and replaceable, wouldn’t justice require that some attempt be made (by the state? by the demon? are there authorities on the demon side who could be held responsible? I’ve never watched Buffy) to make the victim — the person who was turned into a vampire — whole again, as well as compensating the vampire/demon’s victims or their families?

    Angie

    • That would be a good defense in the case of someone like Angel (i.e. a vampire whose human soul has been restored). But for a regular vampire it doesn’t make much sense, since the possession is ongoing and virtually impossible to end.

      And of course it depends on how the vampire became one. If the vampirism was contracted voluntarily, and the prospective vampire knew what he or she was getting into, then the defense probably wouldn’t work, akin to voluntary intoxication versus involuntary intoxication.

      • Given how long they live, couldn’t that last test be hard to prove?

        “Your Honour, I would like to call Reginald de Huygens to the stand, that he might testify to the voluntary nature of the defendan’ts transformation. However, we will need the use of a medium and an official crystal ball with recording apparatus, as Mr. de Huygens has been dead for five hundred and thirty-six years.”

      • Circumstances of vampirism are actually irrelevant- its the corpse that is possessed, not the person. Angel is a case of a human soul being put back into the unliving corpse after leaving it upon death. For the vast majority of vamps intoxication or mental domination do not apply because they are actually distinct entities and the original person is dead and gone.

  5. Well, the court could issue an injunction requiring the defendant to bring in Willow to restore the soul (or make a good faith effort), now that she has shown it is possible. Assuming the court acknowledges the existence of vampires.

    But does the demon have any rights? (There is a marked discrepancy between treatment on “Buffy” and on “Angel”, where demons — most of the time — are just people.) Would effectively evicting him be punishment without due process? I remember Joan Patricia Basch’s “Alas, Poor Yorick, I Knew Him Well Enuff”, where a lawyer for Actor’s Equity steps in to stop a production from exorcising a haunted skull (of an Equity member) on the ground that the procedure would “render him incapable of gainful employment, and is tantamount to execution”. Not to mention the Gadarene precedent.

    • A court probably couldn’t force Willow to do anything because of the 13th Amendment. Positive injunctions (i.e. requiring a person to do something affirmatively rather than refraining from doing something) are unusual and are typically done in order to enforce a judgment against one of the parties rather than to compel action by a non-party. Examples include destroying things that infringe intellectual property and being compelled to return property to the plaintiff in a case for conversion or specific performance of a contract.

      • Perhaps you could argue that it is a medical procedure meant to help the victim. Of course with that you get into issues of patient consent and whether this would actually help anyone who is forced to live with the knowledge that they have probably killed a good number of people. I think the accepted power of the state might have to expand a good bit before it’s politically and legally safe.

      • I actually think that the procedure could be forced upon the vampire, akin to administering anti-psychotic medication to prisoners. In their demonic state vampires are definitely a danger to themselves and others, and other forms of therapy are unlikely to work. The problem is that the government can’t just conscript a private citizen like Willow, but if she were willing to do it, then it could probably be done without the vampire’s consent.

        This is not to say that it could be done without Due Process, however. “We hold that, given the requirements of the prison environment, the Due Process Clause permits the State to treat a prison inmate who has a serious mental illness with antipsychotic drugs against his will, if the inmate is dangerous to himself or others and the treatment is in the inmate’s medical interest.” Washington v. Harper, 494 US 210, 227 (1990). The Court did state that “The Due Process Clause does require certain essential procedural protections,” but they were provided by the regulation in question.

  6. My impression was that the demon souls were possessing human corpses, so it would be not be possible to restore the human soul without powerful magic as used in Angel’s case. And since the magic used for Angel was a curse designed to torture him with the memories of crimes committed by Angelus, I’m not sure it would be appropriate for a court to order such magic to be performed on other vampires. My impression (I’m not a Buffy expert, I could be wrong) was that the original human souls would be a lot happier in their final resting place.

    But I think with Angel, the real legal question is not “was he insane when acting as Angelus”, but rather whether Angel and Angelus can legally be considered the same person. I don’t think Angel can be legally responsible for crimes committted by a foreign entity controlling his body. But how you would punish Angelus without punishing Angel beats me.

    • The trick is that Angel can become Angelus through Angel’s voluntary actions (e.g. by experiencing a moment of pure happiness, such as through sexual intimacy). So while it doesn’t necessarily make sense to punish Angel as such (i.e. retribution isn’t very sensible), it may make sense to incapacitate him and to deter other vampires through his incarceration.

      Perhaps that’s an argument for involuntary commitment rather than imprisonment, but the overall effect is the same.

  7. The thing that I’m curious about is most of Angel’s and some of Spike’s murders were committed in England or Europe. If those authorities through ignorance or apathy don’t charge Angel/Spike with those murders, how long can the American authorities hold them, assuming they learned of them?

    Also, and this is a special case that I might not be remembering properly, Spike killed his elderly mother twice, he turned her in to a vampire (maybe it was Dru, I don’t remember), which follows the irrevocable cessation of metabolic processes, then he destroys her as a vampire. Both events happened in her/their house, and it was implied that she was pretty much a shut-in. How could the authorities in England (which, granted, you’re not a barrister there) charge Spike with the crime as there is no bodies since vampires dust when killed and as a shut-in it’s unlikely that any of her neighbors saw her in a long time.

    • Even if there’s no body I don’t think that prevents you from being charged with murder, it simply makes it harder. Additionally with advances in forensic science there’s the possibility that someday a court would be able to say with certainty that the accused had definitely murdered someone, after all a vampire created in the 17th century couldn’t predict they could be convicted by their fingerprints.

    • The court in the UK may not be able to prosecute. According to British cop shows (admittedly not the best source for legal information, but I’m just going to go with it) there is a statute of limitations on murder in the UK. It’s very long, but presumably doesn’t go all the way back to the VIctorian age.

    • Spike had just become a vampire. Which is to say, the demon occupying the body had just been created. As such, Spike would be a minor who by modern standards is too young to be held responsible for the crime.

      Of course, this raises the question that comes up in the clones context: of people who are very young but have the memories and body of older people.

  8. That still leaves the murder of Jenny Callender, and any other crimes committed by Angelus when he was loose in Los Angeles.

    There might also be a question of jurisdiction. Angelus murdered his family in Ireland before the UK existed. Does the Republic inherit jurisdiction?

  9. I’m curious about the statute of limitation issue. My understanding is that statutes of limitations among other things are an application of the Due Process Clause. After a certain amount of time, evidence disappears, witnesses die or move and cannot be found, memories fade, etc making a fair trial very difficult. Of course, this must be balanced against the severity of the crime committed, but it seems to me a statute of limitation is always required. In the real world, not having an explicit statute of limitation is not a problem because you will eventually die. But if you never died, then suddenly, you could be prosecuted for a 300 year old crime which presents all of the problems I cited about. Sounds to me that vampires would have a decent chance of success claiming that their right to Due Process is being violated when being prosecuted for very ancient crimes.

    • It’s hard to say exactly what inherent limitations on prosecution the Due Process Clause imposes. The Supreme Court has held that “statutes of limitations, which provide predictable, legislatively enacted limits on prosecutorial delay, provide the primary guarantee, against bringing overly stale criminal charges. … But … the statute of limitations does not fully define [defendants’] rights with respect to the events occurring prior to indictment and … the Due Process Clause has a limited role to play in protecting against oppressive delay.” U.S. v. Lovasco, 431 U.S. 783, 789 (1977).

      The implication from the main cases on this issue seems to be that there would be a balancing act involving the actual prejudice the defendant (pretty severe in the case of a 300 year old crime) and the intention of the prosecutor (arguably perfectly pure: presumably they would have brought the charges earlier if the suspect could have been found and arrested). Of course, it’s questionable whether a prosecutor could even successfully indict, much less convict, Angel on the basis of what would have to be very stale and sparse evidence.

      • Interesting side question: criminal cases are “the people of (jurisdiction) vs. defendant”. If 100% of the people of (jurisdiction) who were alive at the time of the crime have passed away, do the people of (jurisdiction) who are alive today have standing? Does the present interest of the people to peaceful and crime-free life relate back to the, say, 300-year-old murder by a 300+ year-old murderer?

        (It might be necessary to examine this question in the time-travel context, as well.)

      • Not all criminal cases are styled that way in the US. Some are “State of XYZ v. Defendant” or “Commonwealth of XYZ v. Defendant.” In any case, I suspect the continuity of government preserves the government’s claim against the defendant in a manner similar to the way a person’s heirs can inherit civil claims.

  10. “How do you plead?”
    “BRAINS!”

  11. Giles is sometimes guilty of lapses in terminology. What it amounts to is that a vampire (as in Biersach’s THE DARKNESS DID NOT) is a corpse animated by a demon. (Which does not explain how and why it retains the victim’s memories and much of his personality.) Liam’s soul was presumably “out there” somewhere until the Kalderash decided to step in with their “stupid curse”. (And since Willow does it by following “cookbook” instructions, it could presumably be repeated in other cases.)

    • Practically speaking the result is the same: the vampire’s mental state changes through some mechanism but remains sane and competent. If the human soul is restored, then the vampire is still capable of relapsing, which potentially justifies criminal liability even for a human-souled vampire.

  12. To clarify: what happened to Angel is that his soul was PUT BACK. The demon has remained there continuously, and resisted when Eygon attempted to possess Angel’s body.

  13. So is Buffy in the clear because she presents a clear case of defense of self and and others, or is she in the clear because, since the vampires are already dead, she hasn’t killed anyone?

    How about liability for battery in the case of bystanders injured by Buffy’s fighting with demons, vampires, etc.?

    • Dare we get into Faith?

    • What about Buffy killing demons who were never human and/or never died? Are demons ‘people’ under the law?

      • I would expect that in a world with non-human entities intelligent, they would eventually be given similar rights in general. However, I would guess that the inherent evil of demons would be a serious impediment to the success of their civil rights movements.

      • Defining them as ‘alive’ probably depends on the biological functions on demons in Buffyverse. As with vampires, I have to note that the two series Angel and Buffy seemed to go back and forth on what demons are and whether or not they were all inherently ‘evil’. Based on different episodes you could argue that all demons are evil*, that some are and others can be considered ‘good’ or that trying to attach such definitions is an exercise in futility.

        *Based on some universal definition of evil I suppose.

      • While the show never quite broke with its rule that the demons in vampires cannot be moral, for some reason demons *in general* weren’t subject to this. Other types of demons could in fact act morally. So I’d think they’d count as intelligent beings and (since some of them can be moral) cannot be treated like psychopaths or talking tigers.

    • Even if she doesn’t get in trouble for ‘killing’ vampires and demons there are still plenty of things you could get her on. She once conspired with Xander to break into a military base and steal a rocket launcher and actually used it inside a mall.
      An episode with Faith showed Buffy breaking into a shop* and stealing weapons. That’s followed by kicking the back of a police car and causing it to crash with the officers inside. After that she helped cover up an accidental homicide** of a human.
      Later on she once again asked Xander to break into a military base and steal weapons, only this time she armed a group of high school students and deliberately blew up the school.
      Following that she broke into another military base (a secret one this time) at least twice.
      Much later on she deliberately set fire to a building because her boyfriend had been allowing vampires there to feed on him.
      Even further on she broke into a building and used a social worker’s computer to make it look as though the person working there was insane simply because said social worker didn’t think she was a good parent figure for Dawn.
      All that’s just off the top of my head. I’m sure if you looked at every episode you’d have a wealth of material to charge Buffy with, and that isn’t even considering the comics. She’s rather lucky that all the local authorities are either incompetent, actively helping any demons or vampires or a black op that the government can’t admit to.

      As for Faith, she confessed to at least some crimes and willingly went to prison for them so there’s less to discuss.

      *Actually you could get her on a lot of breaking and entering charges.
      ** Though she and Faith clearly expected it to be a vampire and casually staked the man so it’s dubious how ‘accidental’ it was.

      • As for Faith, she broke out of prison near the end of the series and never went back. Breaking out of prison is a crime in itself (the scenario of breaking out to prove your innocence gets you screwed in real life) and even if you ignore that, her sentence clearly wasn’t over. She’s also avoided punishment for many crimes (remember when she tied Xander to a bed because he dared try to talk to her, and he was rescued by Angel making jokes about his safeword? That’s sexual assault.)

    • Defense of others would obviously apply if Buffy accidentally comes across a vampire attacking a victim, but would it still apply if she goes out actively hunting vampires so that she can kill them preemptively?
      I would expect to get into legal trouble if I, say, put a picture of a skull on my shirt and then went out looking for bad guys to kill, on the theory that they were probably going to hurt someone eventually. Is there a legal distinction between this and what Buffy does?

      • I don’t think the Punisher is right parallel… more like Kraven. Buffy doesn’t hunt people who do bad things, she hunts non-human animals who, by their very nature are dangerous to people.

        Most of the animals capable of preying on humans have been hunted to near extinction (Bengal tigers, African lions, Eureopean and North American wolves… California vampires?)

      • I’d agree that “dangerous animals” was how vampires were portrayed in the episodes of Buffy that I watched. If vampires are fundamentally creatures that prey on humans and are unable to abide by the rules of human society, it wouldn’t be logical to treat them as humans under the law.

        Since we have no comparable predators of humans in our world, and even dangerous animals are mostly endangered, it is tricky to draw an analogy. Tapeworms are the closest I could think of. Really, bacteria are the only creatures that pose the same level of threat as vampires.

        Maybe the best example would be a school custodian running into a tiger that was pacing the corridors during school hours, looking for something to eat. Even if you had no proof it was going to eat a child rather than go to the cafeteria, wouldn’t it be legal to shoot it on the spot rather than let it wander through the classrooms until animal control arrives?

      • It depends on the nature of the hunt. When she patrols a graveyard she tends to be attacked by the vampires and responds in self-defense. But there are other times when she’s clearly attacking vampires that aren’t an imminent threat to anyone (e.g. exposing sleeping vampires to sunlight).

      • In real life, we don’t have creatures that can talk but are incapable of acting morally, except maybe psychopaths, and you can’t diagnose someone’s psychopathy as easily as seeing that they don’t cast reflections in a mirror.

        (Although it was later established that vampires can act in ways we would consider moral if they do it out of self-interest, like Harmony.)

        A vampire, being a demon, is the equivalent of an incurable psychopath. I would think that if you go by existing law, you have to lock him up forever–the insane can’t be executed. You can restore the vampire’s soul, but the soul is a different person than the demon; restoring the soul would leave the demon helplessly imprisoned in the body anyway. You’re imprisoning the demon, not “curing the vampire”, since you are putting a different person in control of the body. A “cure” would imply that the cured vampire is the same person with a different mental state, and he’s not.

        This does raise questions like “how do we know a vampire isn’t another Harmony?” You’re not allowed to lock up psychopaths who never hurt anyone, even if they have no feelings and only avoid hurting people because they don’t want to get arrested.

        I suppose there’s a way around it, though. Finding someone not guilty by reason of insanity requires not being able to tell right from wrong. The vampire arguably can tell, he just doesn’t care. If so, you can execute him after a trial (depending on what state you are in, and whether more execution methods can be approved as not cruel to vampires). But you still can’t just stake one in the street.

        I agree that vampires should be treated like dangerous animals, but we don’t treat psychopaths right now as dangerous animals. The law would have to change, and there would be a lot of reluctance. “They can talk intelligently but they’re really just an animal” has, in real human history, always been an excuse to abuse fellow humans and has never been genuinely true before vampires were discovered.

      • The American Psychiatric Association does not recognise psychopathy as a personality disorder or mental illness. It instead has the diagnosis of Anti Social Personality Disorder and considers sociopathy and psychopathy to be obsolete terms for the same condition. It is absolutely not in any way considered a valid insanity defence.

        There are those psychologists who do consider psychopathy to be a distinct condition and a massive amount of research has been done on such subjects but their stance has not been adopted by the APA; even if it was, it would STILL not be a valid insanity defence and many who advocate its existence do not believe it should be. Psychopaths may have no conscience, but they know when they are breaking the law (and ignorance is generally not a defence anyway). The claim that you cannot execute psychopaths is false because any number of people who have been executed were considered psychopaths by either definition, by professionals and laymen alike; in other words, psychopaths are executed ALL THE TIME.

        If they commit a serious crime that warrants the death penalty, psychopathology would not save them, especially since the (slim) majority of psychopaths do not commit such crimes, and they don’t because despite being psychopaths they may not have an urge to do so and more importantly they certainly know they will be seriously punished if caught. Incurable psychopaths are not legally insane.

  14. Re Angel / Angelus – couldn’t a good case be made for treating him as someone with multiple personality disorder?

    Given his track record his treatment as a special case deserving of endless second chances seems VERY silly – even as Angel he killed several innocent parties or left them in harms way (most notably the lawyers he locked in a wine cellar with Darla and Drusilla), as Angelus he’s a mass-murderer.

    • I don’t think multiple personality disorder (aka dissociative identity disorder) has any special legal significance. Remember, legal insanity is independent of a medical diagnosis of mental illness. Someone can be found insane without having a diagnosis, and someone can be diagnosed with a severe mental illness without being found insane. It’s true that most people who are found insane are mentally ill, but a diagnosis is not a strict requirement. Since neither Angel nor Angelus seems to be legally insane, I don’t think a diagnosis of dissociative identity disorder would help.

      A diagnosis of mental illness would be required in order to treat a vampire without their consent, however (e.g. by restoring their human soul).

      • It varies from state to state and country to country. There are actually cases of a person being found either legally insane or unfit to stand trial on the grounds of DID. With regards to California the most infamous case would be Kenneth Bianchi, one of the Hillside Stranglers, who faked DID- its not clear if he would have gotten off (ie. sent to a psychiatric hospital for probably the rest of his life) but it was seemingly going that way until he was exposed (he wasn’t brought to trial until after this, but four psychiatrists were prepared to testify to his mental illness and the police were certainly worried. It might actually work.

        I’m not sure if the consent thing matters- the vampire should have no legal right to the host corpse. Incidentally, restoring the soul is not curing the condition- they are still vampires. Curing them of vampirism would mean the return to being dead, not that their soul was restored.

  15. I honestly can’t find your e-mail addresses on the blog anymore so I’m just going to post this here and you can treat it as an e-mail.

    Spoilers for Horrible Bosses to follow.

    In the movie Horrible Bosses, Nick, Dale and Kurt break into Bobby’s house and steal his cell phone. Late, they break into Harkin’s house and accidentally leave Bobby’s cell phone under a couch. Harkin, suspicious that is wife is having an affair, finds the cell phone with Bobby’s address on it and immediately concludes that Bobby is the man his wife was having an affair with. Harkin then goes to Bobby’s house and kills him with a gun, shooting him once in the chest and once in the head. If you’ve seen the movie could you let me know if Nick, Dale and Kurt could be charged with felony murder. (They broke into two houses and a man died as a result.) Or is the causal link broken because Harkin jumped to a conclusion and acted irrationally?

  16. Caitie: Well, the Watchers have documentation on these things. Or Wolfram and Hart, where Files & Records seems to know EVERYTHING.

  17. Pingback: Geek Media Round-Up: February 14, 2012 – Grasping for the Wind

  18. It seems that the turning would almost always be voluntary to some extent, since “First they have to suck your blood, then you have to suck theirs. It’s a big sucking thing.”

    • Under those circumstances it would be hard to prove that the person being turned into a vampire had given informed consent. You could even make a case for it being an instance of unlawfully assisted suicide. Also it’s entirely possible to force someone to drink your blood.

    • The bit where you have to suck their blood is nearly always involuntarily. They bite your neck and suck your blood (ie, inflict a fatal injury) then they cut themselves and press your open mouth against it- and you can do nothing about it.

  19. It strikes me that the state Angel/Angelus find themselves in might be considered analogous to conjoined twins (inoperably conjoined). If one conjoined twin commits a crime, can you really lock them both up? I’m hoping this has never come up (a google search reveals it to be a very popular but apparently hypothetical question: http://www.slate.com/articles/news_and_politics/explainer/2010/01/if_a_siamese_twin_commits_murder_does_his_brother_get_punished_too.html )…

    Of course since Angel/Angelus share a great deal more than a physical body and actually have a close mental connection that creates all kinds of havoc with distinguishing which one intended what. However, I have to say that while I seem to recall they may have colluded to commit a crime or two, they do seem like distinct people. It does seem like while they share a physical body and memories two distinct substances, essences or mechanisms are at work generating two different mental lives and sets of behaviour, glowly spatially located soul stuff independently attested and so on. When they are conjoined things get a bit confusing but I’m unconvinced that we should posit a third hybrid person as the outcome.

    To point out problems with considering them the same person, thanks to the joys of statistical mechanics we all have a little bit of the matter that made up people in the past (we breathe out carbon that used to be our flesh, or otherwise get rid of it, it enters the chain of living organisms and gets spread around other people eat it or breathe it in and ta da). You can’t banish someone to St. Helena for being made up of Napoleon’s atoms (assuming his sentence stands 200 years later), you can’t even send Napoleon’s identical twin to St. Helena. Similarly crazy people who think they are Napoleon are not exiled to St. Helena, and even if some twisted neurologist gives some guy all of Napoleon’s memories that does not make him Napoleon. If Angel and Angelus were truly indistinguishable I could see a case for considering them the same person, as it is they seem distinguishable to me.

    • It’s not a matter of considering Angel and Angelus to be a third person. I used the names only as a shorthand for distinguishing between the demon-possessed and human-souled states.

      Instead, it’s a matter of holding that there was only ever one person. The law does not recognize mental illness as creating a new person, even in cases of traumatic brain injury that result in a completely different personality and memory loss.

      Someone who has a severe mental illness that is treatable with medication may have two very different personalities: the person on medication and the person off of it. They are distinguishable in the same way that Angel and Angelus are, but the law considers them the same person. And unless the mental illness is so severe as to qualify as legal insanity, that person will still be potentially liable for their criminal acts. In this case, neither Angel nor Angelus seem to fit the definition of insane according to California law.

      • But why would the law treat demon possession in the same way as mental illness? The demon is a separate person. It just *sounds* like the same person. Presumably the law could get experts to testify that yes, a vampire has a demon, a separate entity, in it.

      • Functionally, possession by a demon and traumatic brain injury are the same: both can result in the same body having a very different mind. The source of the change in personality doesn’t seem to be relevant. In fact, since Angel can become Angelus voluntarily (whereas a mentally ill person generally cannot voluntarily cure themselves) suggests that, if anything, there’s all the more reason to hold Angel liable for Angelus’s crimes.

      • The law does not consider a person who is under the influence of drugs, mental illness or brain damage to be a completely different person (from the same person without said influence), but is that because it never would (no new evidence could compel such ruling)? Or because cases where one might claim a truly different personality is at work are rare enough and disputable enough (ie psychological, cognitive and neural science can not give a clear enough definition of personal identity to decide the question) that pragmatism dictates not making distinctions in those sorts of cases? In all cases the person has the same brain (less of it in the case of brain damage, but the same brain) and so it seems possible to say, sure some difference in capabilities and personality, but fundamentally the same mind at work.

        The thing is the law does make the distinction about more than just the physical body in question at some point (hence why people sharing atoms with Napoleon are not considered to be Napoleon, maggots inhabiting human corpses have no legal standing as people etc.). So could new evidence such as new science (brain transplant surgery?) or the revelation that magic and demons really exist and some delineation about their properties cause legal authorities to refine their definitions (by say declaring vampires people)? I think the answer has to be yes (otherwise as you said it makes for a boring exercise).

        In a world where vampires are granted the legal status of persons and souls can be transferred between people (as seen in one episode of Angel) or held in a glass ball (I believe Willow has to get Angel’s soul into that before sending it into the body), the issue becomes remarkably clear cut (in cases involving bonafide magic spells and human souls at any rate) and the pragmatic considerations lean towards making the distinction not just on the basis of gross physical characteristics, but including the basis of the “soul” in-line with the new evidence.

        For example, if the courts in Buffy and Angel would refuse to recognize the existence of souls or their part in constituting personal identity (even after being given evidence of wizards who can transfer souls around and the like) then the wizard who goes around switching souls/bodies with various victims is committing no crime and has full rights to the body he ends up inhabiting, all the property associated etc.. This seems like an especially bad will and lack of charity in interpreting the statutes about property, consent and so on. It seems more likely that they would rule switching souls with people is some crime against the person and would not allow the wizard access to the property rights and privileges associated with his new body.

      • The thing is the law does make the distinction about more than just the physical body in question at some point (hence why people sharing atoms with Napoleon are not considered to be Napoleon, maggots inhabiting human corpses have no legal standing as people etc.)

        In philosophy this is known as the sorites paradox, which is related to the Ship of Theseus problem. When confronted with these kinds of problems the law often has to make bright-line rules that are ultimately sort of arbitrary (e.g. the age of majority, the drinking age, the voting age). Here the bright-line rule is that what matters is the body, not what happens to the mind.

        So could new evidence such as new science (brain transplant surgery?) or the revelation that magic and demons really exist and some delineation about their properties cause legal authorities to refine their definitions (by say declaring vampires people)? I think the answer has to be yes (otherwise as you said it makes for a boring exercise).

        The answer doesn’t have to be yes, and I don’t think that’s the point at which it becomes a boring exercise. It’s boring if the answer is that vampires are just corpses because the person died, therefore they have no rights, cannot commit crimes, and can be killed with impunity. I mean, frankly, that’s probably the real answer, but I wanted to play with the ideas a bit. Sometimes we have to jump over a small legal obstacle in order to get to much more interesting material.

        Now, we can posit an alternative answer, one where, given a sufficiently large change in personality, one person can “die” and another person be “born” in the same body. But that would be a dramatic change in the way the law treats people and changes in mental state.

        And again, how can we distinguish traumatic brain injury from vampirism? If becoming a vampire results in a different person, how does TBI not? What about something like a curable mental illness? Is someone with bipolar disorder a legally distinct person when on their medication versus not? That would be a tremendous change in the law with far-reaching consequences. That’s not jumping over a small legal obstacle, that’s fundamentally reshaping the law, which is not really what we do here. That’s not to say legal fan-fic can’t be interesting (just look at the book mentioned upthread), but it’s not our thing.

      • James Daily, on the one hand it is clear that on the question of criminal culpability a natural analogy is between fictional vampires with a certain state of mind and hypothetical humans with the same state of mind and asking whether they have the sort of mental state that is consistent with being found guilty of crimes (mens rea as I think lawyers sometimes call it). I don’t really have any comment or criticism there, it all seems like a sound and reasonable consideration of the issues to me, given the small leap required.

        However I have to say that I think that analogy is not perfect and breaks down with respect to the question of whether the human before transformation and the vampire after are the same person for example, (this is an example of what philosophers call a question of personal identity). Is vampirism just the same as developing a mental illness (legally speaking)? Now as you have said the law deals with this in an arbitrary manner in terms of gross physical characteristics (essentially in terms of physical continuity of a living being) against whatever our intuitions or fanfiction ideas might be.

        The thing is vampires are physically completely different from humans, they do not breath (this is explicit in Buffy when Buffy needs mouth to mouth Angel says he has no breath), defecate (I’m guessing) and so on. Perhaps more dammingly, they cast no reflection, turn to dust when their heart is destroyed and their flesh ignites when exposed to sunlight. Vampires are not a continuation of the life of the being they superficially resemble and given the physical characteristics of their body it would be hard to argue they are even made of the same sort of matter as regular human beings (or indeed any substance known to science).

        Any argument that unites the human and the vampire they superficially resemble as a single person creates a new, very different, legal standard of identity (ignoring the new kind of person it also creates), because they lack the gross physical continuity. Since for the reasons given it can’t be on the basis of physical continuity grounds I can only assume it is on mental grounds that you decided to unite the vampire and human Angel (unless you are going to argue that legally any two people who look enough like David Boreanaz are the same person :-). Using such mental characteristics would be new law (or at least a novel interpretation of law). Therefore I can only say to your charge of engaging in legal fanfiction that I was following your example, so I can’t see the force of your classification (in legal terms I think that is tu quoque).

        Now of course if we don’t invoke new interpretations of the law then Angel the vampire with a soul and Angelus the vanilla vampire are legally one and the same sure, but I don’t think Angelus can be culpable for any crimes the human Angel committed in 18th century Ireland. Also, there was an episode of Angel where demon blood turned Angel into a human (obviously this was undone), this newly human Angel would clearly be physically (and therefore legally) distinct from vampire Angel/Angelus and therefore has a pretty good get out of jail free card. Legally it would be hard to physically connect a 20th century human Angel and 18th century Irish Angel, so presumably, they are also different legal persona also and so on.

      • I think we may be talking past each other. It may help to establish a foundation. When considering the case of Angel, there are 3 “entities”: Liam (i.e. the normal person), Angelus (i.e. the evil vampire), and Angel (i.e. the good vampire). When Angelus was sired, Liam died. That much is legally uncontroversial because his cardiovascular functions permanently ceased. Angelus is a separate legal entity from Liam because Liam is dead. Thus, Angelus could not be held liable for any crimes committed by Liam, but nor would he have any inherent rights to Liam’s assets.

        Now, the boring thing to conclude from this is to say that Angelus has no rights, is no different from a dangerous animal, and is incapable of criminal liability for his actions. The same, then, would be true of Angel. I glossed over that because I wanted to address the question of vampire liability, as requested by a reader. This requires assuming that vampires are legal persons.

        So, assuming that Angelus is regarded as a legal person, it seems clear that Angel is the same legal person. It’s no different, legally, from a mentally ill person receiving medical treatment that changes their personality for the better. Angel can voluntarily revert to Angelus, just as a mentally ill person can voluntarily cease taking their medication. And unless the mentally ill person was legally insane at the time, they can be held criminally liable for acts committed while off their medication, even if they later return to treatment. The same is true of Angel. The fact that it occurs via a soul coming and going rather than an anti-psychotic drug doesn’t seem to matter, legally-speaking.

        There is room in the law to consider a vampire to be a legal person. If rights can be granted to animals, then they could be granted to vampires. But there seems to be far less room to tie legal personhood to one’s personality. The legal side-effects (intentional and unintentional) would be far greater than those resulting from vampire personhood.

      • Why would Angel and Angelus be considered the same legal person?

        Suppose that instead of Angel being a vampire, he stayed human, but some technowizard like Warren kidnaps him, forcibly plants a device in his head and begins moving him around using a Playstation controller. If he presses forward, Angel moves forward. If he presses sideways, Angel turns. Whenever he presses a certain button combination Angel’s body sticks out its hand. In fact, he later develops a virtual reality glove he can wear which lets him control Angel’s body as if it was his own, since his hands are getting sore from pressing buttons.

        Warren then steals the Trio’s invisibility ray and zaps himself, and proceeds to follow Angel around invisibly, using the virtual reality glove to manipulate Angel. One of the manipulations he does is to kill someone.

        It would be absurd to hold Angel responsible for that killing. But that’s exactly the same thing that’s going on with Angelus, except that instead of standing next to him, and controlling his actions as if the body was his own, the demon is inside his head, and controlling his actions as if the body was its own. The only difference that that should make is that it’s harder to *determine* that there is an invisible person controlling him, but there are plenty of Buffyverse experts who can testify to that.

      • It would be absurd to hold Angel responsible for that killing. But that’s exactly the same thing that’s going on with Angelus, except that instead of standing next to him, and controlling his actions as if the body was his own, the demon is inside his head, and controlling his actions as if the body was its own. The only difference that that should make is that it’s harder to *determine* that there is an invisible person controlling him, but there are plenty of Buffyverse experts who can testify to that.

        The distinction is that the demon is still around when Angel has a human soul, and Angel can become Angelus voluntarily. So holding Angel liable makes sense because it would a) deter Angel from deciding to become Angelus and b) limit the havoc caused if Angel became Angelus again and c) deter other vampires from committing crimes and d) effectively punishes Angelus as well.

        Punishing Angel in your example wouldn’t serve any penological purpose because a) Angel has no reason to voluntarily be controlled by Inviso-Warren and b) Angel can’t unilaterally decide to be controlled by Inviso-Warren even if he wanted to be and c) it wouldn’t deter anyone else because no one else wants to be controlled by Inviso-Warren and d) punishing Inviso-Warren’s victims doesn’t punish Warren.

      • Thanks for your clarification.

        One thing is still bugging me, you keep saying Angel can become Angelus voluntarily, but little seems to hang on this. One can voluntarily become brain damaged in a way that would make one dangerous to others (simple take a screwdriver to the part of your brain that is associated with self-control, it might not work or it might kill you but it hardly seems impossible and would strictly be voluntary), going back is hard, but so is getting Angelus to turn back into Angel (basically it seems to require a set of minor miracles in each case). Also, you can easily become temporarily mentally unstable by the application of any number of drugs (and it has been alleged that in some cases those can precipitate a more general mental disarrangement). This sort of extreme chemical or physical intervention seems analogous to the way that magic spells can relieve Angel of his soul in one way or another, but they would relieve anyone else of their soul as well (now for most people that would merely render them catatonic or something but still).

        Angel can also break the curse by experiencing a moment of perfect happiness and you seem to think this can be achieved voluntarily. While I suppose for normal people some change in affect can be achieved by will alone, to suggest that somehow the only reason we are not all perfectly happy is through lack of will is a deeply flawed and troubling statement, especially when we consider the plight of those suffering from clinical depression.

        Even for normal people the pursuit of happiness is not something that admits of a direct path, achieving goals makes you happy but you can’t say oh I’m just playing tennis to be happy, so what I will do instead is just decide to be happy and wow that is just as much fun as playing tennis. This is called the paradox of hedonism ( paradox of hedonism).

        Also, happily or sadly once Angel learned that his curse would be broken by perfect happiness it made him anxious about situations where it might occur (such as sexual intimacy with someone he truly loved etc.) and so that anxiety mars his happiness preventing it from being perfect (I think that was invoked at least once in the Angel series). Since Angel does not want to lose his soul he more than anyone else is subject to the paradox that he can only be perfectly happy when he is not worried about happiness.

        If Angel really wanted to lose his soul then arguably we get into another paradox, because then one thing needed to make him truly happy would be for the curse to break and so he loses his soul, so as long as the curse is in effect he could not be happy enough to break it thereby guaranteeing the curses continued efficacy (sort of like the mirror puzzle in the first Harry Potter book). This is assuming that perfect happiness means PERFECT happiness, so that any unfulfilled desire would mar its perfection, arguably it has to be a little weaker than this, something like temporarily forgetting all other cares, but this still means the more intense Angel’s desire to break the curse by finding perfect happiness, the harder it would be to forget and therefore the more difficult it would be to be perfectly happy.

        There are ways to make Angel really happy that might create perfect happiness and Angel might voluntarily pursue those means. However there are ways to make a person really irritable and angry, if someone voluntarily decides to endure those means I don’t doubt that they could become perfectly homicidally enraged. So I don’t think for that reason alone that Angel is a greater risk to others than any other person in the Buffyverse. There are other things to consider, but this voluntarily become Angelus thing seems like a complete sideline.

      • The distinction is that the demon is still around when Angel has a human soul, and Angel can become Angelus voluntarily.

        I don’t think that counts. The initial vamping of Angel was probably not done with consent and certainly not with informed consent. That would be like Warren putting the implant in his head against his will or using trickery.

        Ignoring all the arguments about not being able to achieve perfect happiness, let’s say that Angel can choose to be taken over by the demon. But in the Warren example, Angel could always go to Warren and say “well, someone broke the implant. Fix it and take over my body again”. I’m sure Warren would oblige. (I can even think of scenarios where Angel has something to gain–let’s say Warren needs to use his body for some goal beneficial to them both. Furthermore, Angel knows Warren is without conscience; it’s as predictable that Warren will use his body for evil as that a demon would.)

        If Angel did that, you could make a case that he was responsible for the killings. But it would still only make him responsible because he *did* consent. It would make no sense to hold him responsible for the killings performed during the initial implant period, when he did not consent, merely on the grounds that we want to discourage him from consenting in the future.

      • It would make no sense to hold him responsible for the killings performed during the initial implant period, when he did not consent, merely on the grounds that we want to discourage him from consenting in the future.

        As I understand it, the demon is still present, even when Angel has a human soul. Thus, holding Angel responsible is, in part, holding Angelus responsible.

        But this is getting into the notion that Angel and Angelus are legally separate entities, which I don’t think they are. Angelus isn’t insane or incompetent, and Angel is the same legal entity, so Angel is still liable for crimes committed by Angelus.

        Is this right or just? Maybe, maybe not. Legal scholars have argued that isn’t right to hold someone with dissociative identity disorder (aka multiple personality disorder) responsible for something one of their alters (i.e. alternate personality) did. Elyn R. Saks, Multiple personality disorder and criminal responsibility, 25 U.C. Davis L. Rev. 383 (1991). The issue of conjoined twins hasn’t really come up in practice, but it’s a similar issue. So far, though, the law seems to hold that Angel would be liable for crimes committed by Angelus.

    • The demon is still *present* when Angel has a human soul, but it’s not in control. In my analogy, that would be equivalent to having the implant break, so invisible Warren can no longer control Angel, but he can still occasionally whisper in Angel’s ear “Kill that person”, which Angel ignores. Under these circumstances it would be silly to treat Angel+Warren as a single entity, responsible for Warren’s crimes, just because Warren used to use Angel’s body and he’s still hanging around even though he no longer can.

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  21. Assume the invention of a drug which was provably able to completely suppress the conscience, feelings of guilt, and whatever else you’d use to define somebody’s moral compass beyond “enlightened self interest.” That is, somebody under the influence of this drug is provably able to tell legal from illegal and even make intellectual judgments as to whether a certain moral system would define a given act as “right” or “wrong.” He is even able to make rational decisions regarding likelihood of getting caught in illegal acts, but is unable to conceive of “feeling bad” for doing something that has no personal negative consequences and is totally robbed of any empathy he could possibly feel for others.

    Assume, further, this drug, when it wears off, leaves the dosed individual totally cognizant of all he’s done while under its effects, and ceases to shield him from the emotional consequences as his moral compass – whatever it happens to be normally – reasserts itself.

    Obviously, anybody who willingly took the drug and knew its effects would be legally liable for anything they did while under its influence.

    However, take a man who does not take it willingly. I will assume two cases:

    1) He is dosed without his knowledge or consent (maliciously or by accident) and is not educated enough on the drug’s existence to appreciate that he has fallen under the influence of mind-altering chemicals. Further, he has no reason to believe that he will ever feel guilty for anything he does.

    2) He is dosed against his will, but knows that it is a drug that has removed his conscience. He has no reason to believe it will ever wear off, however, as he doesn’t know this is not a permanent amputation of his moral compass.

    In either case, he makes the rational decision that he can get away with a crime that will serve his selfish ends. He is certain he can avoid being caught at it. Let’s say it’s murder, just to get to a nice first degree premeditated felony.

    Two more cases:

    1) He’s right, and the police can’t pin the murder on him (may never even suspect him). But the drug wears off, and, because he’s actually a HIGHLY moral man, he turns himself in, wracked with remorse. He gives a detailed confession, including a horrified deposition on his mental state at the time.

    2) He’s wrong, and the police do arrest him. The trial is iffy, but there’s a good chance he’ll be convicted. Then, in the middle of the trial, the drug wears off. He’s just as moral as in case 1. He confesses in open court, once again giving a similar deposition.

    Assuming there is enough knowledge that the drug’s existence and effects can be brought in as evidence, is the man legally culpable for those crimes or not? They are crimes he never, EVER would have committed had he not been drugged. It’s likely, even, that he wouldn’t have committed them had he known he was drugged and known it would wear off, because his rational enlightened self-interest would say “I will turn myself in because I’ll act in a stupid fashion.”

    Therefore, he never would have done the crime if he’d known he was in an altered mental state that would return to being his normal one later, and he did not willingly alter his mental state to recklessly risk engaging in such behavior. He knew the murder was “wrong” according to a moral system he’d held beforehand, and definitely knew it was illegal, but the man who is wracked with guilt over it would never ever do it. Would undo it if he could.

    There’s similarity to the criminal who finds God or something and repents of his crimes, but in this case, he had the lack of conscience imposed on him against his will.

    Does he have a legal case to be made for “impaired capacity” or somesuch? Or is drugging people without their knowledge sufficient to ensure that normally moral people who think they could avoid being caught commit crimes for which they will be legally culpable?

    • Involuntary intoxication can work in two ways: it can allow a defense of temporary insanity/incapacity or it can defeat the mens rea (i.e. mental state) requirement of the alleged crime.

      In this case, the drugged person is not insane by just about any test that I can think of. He understands right and wrong, he know what he’s doing, he’s not incapable of resisting the urge to commit a crime, etc. And he’s capable of forming the mental state required for premeditated murder. Basically the drug makes the person into a sociopath but a legally sane one.

      What you’re getting at is an important philosophical issue in the law: the criminal law presumes that people have free will. It’s not enough that the drug caused the person to do something he otherwise wouldn’t have. To illustrate why this may be more reasonable than it may sound, consider this example:

      Imagine a person is told (falsely) by a trusted friend that a loved one has been brutally murdered. Now suppose that person then kills the alleged murderer. The person isn’t insane, is capable of forming the required mental state for premeditated murder, and ordinarily the person would never commit such a crime. When the person learns that the loved one is still alive, they show extreme remorse over the needless killing.

      Should we excuse the revenge-killing and hold the liar responsible for the murder? The law says no, we assume that the person made a free choice to commit murder.

  22. Except that, in the revenge-killing case, he’s demonstrated that his conscience DOES permit illegal action of provoked sufficiently.

    The hypothetical drug actively produces an altered mental state that is not demonstrably one which can be reached absent this drug.

    In your counter-example, if his family is later brutally murdered, he’s demonstrated that he’s capable of and willing to commit the revenge-killing, with no involuntary alteration of his mental state required. Well, no unnatural one, anyway.

    In that revenge-killing example, if the guy who tricked him never actually suggested that the guy take vengeance in any way, but merely tricked him as stated, would the guy who tricked him be legally liable for the murder that was supposedly for revenge? He hasn’t actually hurt the guy’s family, and he never once even suggested vengeance. Would it make a difference if he had good reason to suspect this man WOULD seek revenge? Had good reason to suspect he would do nothing but be miserable?

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  24. Never thought I’d hear Flip Wilson cited as a legal precedent.

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  26. Aren’t their any old, old laws concerning demonic possession or similar, and would they have bearing on the matter?

    I mean, if they were never technically repealed, could they be used if its found out that yes, this person is indeed possessed?

    Lets face it, if Buffy-style vamps walked among us either new laws would quickly be made or reinterpreted, or old ones would be re-used, because legality aside comparing demonic possession to brain damage or mental illness is just factually wrong. In fact a case like Angelus is more like enslavement, or having a serial killer forcing someone (beyond all realms of culpability) to be his accomplice and / or keeping them prisoner and using their property (in this case, their body) to commit murders. I know most cases on this site would likely mean a change in the law but this really takes the cake, since it otherwise means you can be punished for something that you ultimately did not do.

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