The Scarlet Witch and Insanity

Christopher writes:

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?
I. Insanity
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.”
II. Liability
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.
III. Conclusion
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).

21 responses to “The Scarlet Witch and Insanity

  1. (just subscribing to the comments)

  2. I have a couple of follow up questions. First off, wouldn’t Wanda’s powers make her virtually unbeatable in court? Assuming she actually IS rational enough to assist in her own defense, isn’t she going to win on a default when the opposing party and their lawyers don’t show up because they didn’t wake up on time because the alarm clock was broken, had a flat tire, were captured by space aliens, and so on?

    Is removing someone’s mutant ability even a tort? If it is, does the inability to control the removal a defense (Leech needs to know! Rogue probably not so much, because she has to touch a person to steal their powers, and unwanted touch IS a tort.)

    Come to think of it, what IS the theory of liability? Her power violates cause and effect, so… she isn’t the proximate cause of ANY injury.

    • OK, poor editing produced a bit of a grammar nightmare in that first paragraph, but you get my point… Wanda could hex the opposing attorney completely out of any ability to function effectively. Does she get put in some kind of inhibitor collar for the trial? (Of course, attempting to put it on her without her hexing it or the bailiff or both remains a problem to be solved by the bailiff.)

      • Leech’s power is a bit different, since it’s uncontrolled, based on proximity, and fully reversible. But Wanda (basically) permanently depowered most mutants. Since mutant ability is caused by the X gene, that suggests that she removed that gene. Changing someone’s genetic code seems like a battery to me, even if the ‘touch’ was via chaos magic/hexing/reality warping. The principle is analogous to the way that a person’s body is extended to include clothing and objects they are holding (e.g. a walking stick). In the same way, a harmful or offensive contact with someone’s body through intangible means is still (in my opinion) a battery.

      • I’m not sure I go along with your assumptions, depending on the way Wanda’s power actually works. It’s not obvious that the depowered mutants were actually stripped of their X gene entirely… If I recall correctly (not an Avengers reader) her power works like the Black Cat’s, and the laws of probability are altered to the detriment of the person Wanda is hexing. If that is so, then there was some event for each of the depowered mutants that caused their powers to go bye-bye. So the mutants’ lawyers will have to show that that event (whatever it was for each one of them) would not have occurred anyway. I would expect that, depending on the circumstances for each one, this could be more or less of a challenge. Who is going to pay for all the experts to testify? (Presumably, Reed Richards will offer his testimony gratis.)

        And, I’m still not convinced “she made me lose my super-human ability!” is covered by common law, and it’s certainly not statutory.

      • The loss of the superhuman power is best thought of as the damages or injury. The crime or tort (if there is one) is some species of assault or battery. It’s just like “she made me lose my ability to hear above 20kHz” isn’t a specific crime or tort, but “she punched me in the head (causing damage to my ears)” is.

        I agree that proof is an enormous problem, but that’s a separate issue from whether Wanda is theoretically criminally or civilly liable for what she did.

      • I’m arguing not just that it might be hard to prove Wanda’s to blame, I suggesting that even if she is to blame, there might not be a legal theory that can reach her (depending on the exact mechanism that her power works by.)

        Let’s say that Wanda believes a person is following her she feels threatened by it. She hexes him. Suddenly, a car parked on the hill suddenly loses its brakes, rolls down the hill, and strikes the guy (We know that this is a result of Wanda’s reality warping power altering probability). The plaintiff wants to sue for his injuries… the defendant is the guy who didn’t maintain the brakes on his car properly, allowing it to roll into traffic. Wanda’s power didn’t make the car’s brakes fail, it made the car’s brakes fail at that exact moment. And if the car’s brakes had been maintained properly, then her power would have found something else to effect. So it seems possible to me (if I understand her power correctly) that anyone affected by her power actually has someone else somehow legally responsible for any injury, and her own legal resposibility is too attenuated.

        (Analogy, just walking though the air causes a disturbance in the air, standing still in the wind creates eddies and swirls that wouldn’t have been there otherwise, walking can cause vibration that causes objects that are poorly placed to fall. In the first two situations, if papers are blown out the window and cause damage, we blame the person who opened the window (if anyone). In the last case, we blame the person who did the poor stacking, not the person who just walked nearby.)

      • The problem is that you’re applying a negligence analysis (e.g. talking about legal cause) to an intentional tort. In your hypothetical, the person with the poorly maintained brakes might possibly be liable under a negligence theory, but the Scarlet Witch acted intentionally. Even if she didn’t know exactly how her power would bring about the fatal accident, she still had knowledge to a substantial certainty that the tortious result (the fatal accident) would occur.

      • But… is using a mutant power to alter reality an intentional tort? You kind of handwaved that it is, because you think it’s a battery, but I’m not sure that it is. I don’t know that anyone has a right to not have cause and effect and probability altered in their vicinity (At least, I’d be hard-pressed to locate a case on point that said such a right exists… and if it does, it’s probably a case that involves cheating at gambling rather than battery.) Is it a case of transferred intent? She intends some harm to come to the person, and since her power makes something happen, she’s always on the hook? If that’s the analysis, I think you’re back to the battle of experts and the difficulty in establishing exactly how her power works and how much control over it she actually has. Going back to the example upthread, do the guy who didn’t maintain his brakes get to sue Wanda because her power deprived him of the use of his chattel, even though he himself was not hexed?

        Now, I think she has a duty to avoid harming people with her talent, which leads to either a negligence analysis or a strict liability analysis. I suppose being a superhero probably involves some ultrahazardous activities whose risks cannot be effectively mitigated, so strict liability might apply, but otherwise, I think its negligence, and since (again, I may be wrong, as I’ve only read a handful of comics she appeared in, and most of those where while she was still in the Brotherhood, not the Avengers) there’s always a different proximate cause, she skates on negligence. Perhaps new case law defining “proximate cause” would arise from such a case.

        The question of proof comes back… I think she has to have immunity as a practical matter, otherwise anyone who ever has anything bad happen to them while they’re anywhere near her will be filing suit, claiming they were hexed, under a res ipsa argument… which she has no way to defend against… how do you prove that someone was a victim of bad luck, and not a reality-warping, probability-altering mutant power?. It’s not like people unable to sue her are left with no remedy… there’s always another rightful defendant in the picture for anything her power triggers.

  3. You say that Wanda might face civil liabality “assuming she isn’t insane.” Is insanity a defense from tort liability? I’ve always seen it discussed exclusively in the context of criminal law.

    • Insanity is not usually a defense in tort per se, but if a person is so mentally impaired that they lack the required intent, then they wouldn’t be liable. At least in some cases Wanda may have been so separated from reality that she can’t be said to have intentionally or even negligently harmed anyone.

      • Does she have a duty to NOT alter reality?

      • I don’t know that we have to get that far because we could use her violation of criminal statutes as a proxy for violation of a duty of care.

        To answer an earlier question: I also don’t know that the fact that her power consists of altering reality matters. In some sense, everything we do alters reality. If I make myself a cup of tea, I have altered reality from its prior version (in which I had no cup of tea) into the current version (in which I do). The only difference is that the Scarlet Witch changes reality instantly and without regard to causality (or physics in general, really). So if she wants to warp reality in order to, say, make herself a cup of tea, I don’t think there’s anything inherently illegal about that. But changing people’s genetic structure and killing people is a bit different.

      • The problem, again, is remoteness of action. When you make a cup of tea, you heat the water, you hold the kettle and the cup in your hand. When you walk down the street, you alter wind patterns, and let’s just say I’m headed for the butterfly effect as an argument here… maybe the changes to the wind currents you made lead to the creation of a tropical storm that destroys property throughout the Caribbean. (yes, problems of proof arise here, too. I officially handwave those away. Even if it WERE possible to prove that your morning constitutional caused the multibillion-dollar storm, the property owners have rightful claims against their insurance carriers but not you, because the action you took is too remote from the result complained of.
        If a scantily clad young lady walking down the street causes a driver to fail to pay proper heed to the task at hand, we don’t allow the survivors of the crash to sue the credit-card company for authorizing the transaction to purchase of the young lady’s clothing, even though without that step, none of the resulting carnage would occur.
        For any given incident of the use of Wanda’s powers creating harm to a person, it is possible that Wanda’s power actually did nothing at all, and the accident would have occurred entirely without her presence.

  4. The good news is that Wanda can no longer be held liable for the deaths of Hawkeye, the Vision or Scott Lang, since their deaths were all reversed. Hawkeye was even resurrected by Wanda during House of M.

    • Even if the deaths are reversed, shouldn’t they have claim for “Emotional Distress”. Heck, for a while there, Hawkeye wanted to flat out kill her.

      • And killing someone, even if he was revived later, would certainly be battery at the minimum

      • Well, there are a few ways of killing someone that do not actually involve a battery (but probably involve other intentional torts.) The first one I thought of is tricking someone into a gas-tight chamber, sealing it up, and waiting for the oxygen to run out. That could be done without a battery (but not without a false imprisonment).

      • In that hypothetical they can probably get you on far more than just false imprisonment.

      • “In that hypothetical they can probably get you on far more than just false imprisonment.”
        Sure, wrongful death. I’m not making the case for walking away from any lawsuit, I’m making the case that there are some wrongful deaths that don’t involve a battery. I was responding to:
        “And killing someone, even if he was revived later, would certainly be battery at the minimum”
        by pointing out that there isn’t necessarily a battery in a wrongful death.

        Although, since a big part of wrongful death damage awards is often lost future earnings, I wonder what happens to wrongful death awards in a world where resurrection occurs, even infrequently.

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