In fairly recent issues of Avengers, the Scarlet Witch
has returned from being in hiding (of a sort) for years. Her last real interaction with her old team and mutant kind was not a pleasant one. She went mad and attacked the Avengers
, leading to the deaths of Ant-Man in an explosion and her own husband, the Vision, at the hands of a berserk She-Hulk, and Hawkeye was lost to a Kree warship as her reality warping powers basically engineered the worst day ever for the team. Not long after that an event called House of M
happened and it ended with her essentially depowering thousands of mutants, many of whom were killed in the aftermath by religious terrorists.
My question is: once the Avengers vs. X-Men
crisis is over, could any of those people affected actually seek legal action against her? I’m sure that the Avengers will forgive her, since they tend to take a lot in stride and be really forgiving even when they should be still rather angry, but isn’t it on the shoulders of the government to prosecute for deaths anyway? And not to mention thousands of mutants who have lost their powers who might not have wanted it, and the families of those killed in the aftermath? Frankly, how can she possibly actually remain a hero and not stuck in jail for the next millenium?
The Scarlet Witch’s madness is a great example of comic book writers’ (understandable) tendency to overlook the consequences of their larger-than-life plots. So would Wanda be on the hook either criminally or civilly? Or would she have a viable insanity defense?
We’ve talked about the insanity defense a few times before (here, for example
), usually concluding that it doesn’t apply. This may be one of the cases in which it does. The Scarlet Witch’s madness may have been caused by some sort of possession or it may have been a more common sort of mental illness, perhaps related to the deaths of her children. Psychic possession could be a kind of insanity or it could simply eliminate the mental state required to commit a crime; either way, that would be an effective defense. But what if the Scarlet Witch wasn’t being actively controlled but was merely ‘ordinarily’ mentally ill?
Unlike many supervillains, Wanda may actually be legally insane. As Dr. Strange describes her in Avengers #503
: “Reality controls her
. … Reality, eventually, as she knows it, starts to slip away. Elude her. Blur. … She loses herself, her reason. … [Y]ou’d say to yourself, this sounds like a person who has lost control of themselves on a deep psychological level. You’d say this sounds like a disturbed person.” That sounds a lot like it would satisfy the most common insanity test, the M’Naghten test
: whether “the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong.”
But supposing Wanda wasn’t insane, she could face both civil and criminal liability. However, in the US system the government is not strictly required to prosecute any particular crime, and you can imagine how it might be reluctant to try to go after someone as powerful as the Scarlet Witch. Even so, the depowered mutants, Ant-Man’s survivors, and Hawkeye’s survivors could probably all sue her in civil court. The nice thing about a civil case is that if the Scarlet Witch doesn’t show up after appropriate efforts are made to serve her with process, then the plaintiffs could get a default judgment. I don’t know if she has bank accounts or other assets that could be seized to satisfy a default judgment, but if she does then that could provide some relief to the injured parties without having to actually get her to show up in court.
The Scarlet Witch has a plausible insanity defense. However, while she might not be guilty of a crime or liable for any torts, I’m not sure that makes Captain America’s decision to offer her a spot in the Avengers more sensible than it would if she had committed the crimes in a sane state (although she declined the offer).