Justice is a limited DC comic series by Alex Ross and Jim Krueger with art by Ross and Doug Braithwaite. The basic story is that the world’s supervillains band together to… save the world. Which they seem to, for a while, only to have that turn out badly, after which the Justice League steps in to do its thing. It’s an interesting series for a number of reasons, most particularly because it deals with the rather obvious superhero-related question of why people like Superman don’t “save the world” in more mundane ways, e.g., combating disease, poverty, war, the sorts of things superheroes could probably do if they decided to.
But the series also includes a handful of things, largely tangential to the main story, which bear some legal analysis. We’ll take a look a those here. There are some spoilers inside.
I. Mind Control and Affirming One’s Actions
We considered the implications of mind control upon criminal law in a post from December 2010, but Justice includes an interesting little wrinkle that we didn’t look at then.
In Justice, our heroes find themselves under the influence of some sort of microscopic mind control worm. It turns out that the villains are actually under the same influence—except for Luthor and Brainiac—and were actually being manipulated into destroying the world rather than saving it. Under the influence of the mind control worms, the Scarecrow caused a horde of civilians to attack the Justice League, but just as things were about to get bad, Green Lantern swooped in and killed all the worms with his power ring. The civilians come to their senses and disengage, but the Scarecrow says “I… I… What was I… Something wrong…? No, nothing’s wrong. I don’t care what they made me do. I would have done it anyway.” He then goes right back to using his fear powers, only this time causing the civilians to turn on each other.
The question is whether Scarecrow’s seeming affirmation of his actions done while under mind control could defeat one of the mind control defenses we discussed in the previous post. The mind control worms certainly count as “a disturbance of mental or physical capacities resulting from the introduction of substances into the body” pursuant to the Model Penal Code. But does the fact that he probably wanted to do all that stuff anyway make a difference?
Almost certainly. Remember, mind control is a defense to certain crimes because it defeats an element of many crimes, that of mens rea. But if a defendant actually has the requisite mens rea, even allowing for mind control, the defendant’s mind is still guilty, leaving him liable for his actions.
To follow this line of thinking, this is why a pair of defendants can’t avoid a conspiracy charge by each “forcing” the other to do something, hoping that only one of them will be liable. The fact that the defendant being “forced” is entirely willing defeats any argument of duress. So if you want to do something, the fact that someone is pointing a gun at you and telling you to do it isn’t going to serve as any kind of excuse.
II. Liability for Inaction
Early on in the story, the Legion of Doom addresses the cities of the world in a gigantic holographic message, given by Lex Luthor.
Hello, world. I think it’s time we made a statement about the many ways we’re trying to make life better for the common man. I know what you’re thinking. What can Lex Luthor, of all people, say to me? And is it true what I’m hearing? Are the world’s ills and humanity’s sicknesses being addressed and cured by known criminals and super-powered terrorists? This is being broadcast around the world, in every city, to every race, in every language. We know you’re wondering where the Justice League of America is right now. And so are we. But we’re also wondering why they never tried to do what we’ve been doing. Why they never attempted to use their powers and abilities to make this world a better place. I believe their inaction is as criminal as those felonies we went to prison for. Preserving the world and not daring to change it means keeping food from the hungry. Keeping the crippled in wheelchairs. Bowing to the status quo of human suffering. And still, they call us villains.
It goes on for a bit from there, and it’s not a terrible question, as far as it goes. It’s something that’s been revisited by comic books and related media with increasing frequency in the last twenty-odd years, more recently in Superman: Grounded. But while it’s a fairly interesting moral question, from a legal standpoint, it’s obviously wrong.
As we discussed in an earlier post there is, generally speaking, no duty to rescue. The issue is addressed in detail there, so we won’t revisit it here, but suffice it to say that while Luthor makes some excellent rhetorical points, a prosecutor or plaintiff who brought a case premised on the failure of a superhero to save the world from mundane dangers would find themselves thrown out of court. There’s simply no cause of action there.
Justice is really worth reading, and the artwork in particular is fantastic. Neither of the issues discussed above has much bearing on the story, as such, but they do point at the sort of legal issues we try to call out where possible.