The Wolverine: Grand Theft Superpower

When I saw The Wolverine I was reminded of this post on “Superpowers as Personal Property,” which considers the idea of treating “stealing” superpowers as theft.  If you’ve seen The Wolverine you probably know where I’m coming from.  If you haven’t, read on but beware: major spoilers follow.

Spoilers Ahead!

In the movie, the elder Yashida offers to take Wolverine’s healing ability, allowing him to live and die as a mortal while saving Yashida from death (of natural causes).  Wolverine refuses and later Yashida attempts to take Wolverine’s power by force.  He comes close to succeeding but is ultimately thwarted.

It’s an open question whether Yashida could have taken Wolverine’s power without killing him, since it appears that when it is taken by force that doing so is fatal.  Still, assuming Yashida was being honest in his original offer, what if he stole Wolverine’s power non-voluntarily but also non-fatally?  What crime could Yashida be charged with, other than some flavor of assault (the procedure apparently involved cutting off Wolverine’s claws and extracting bone marrow from within).  Although the movie is set in Japan I will be analyzing this from the US perspective, since I know essentially nothing about Japanese law and do not have easy access to good research materials on it.

I. A Real World Analogy

I think a good analogy in the real world might be organ theft.  Although the oft-told story of someone waking up in a bathtub of ice minus a kidney is an urban legend, in principle the analogy is sound.  In both cases, a person has something involuntarily physically extracted from their body in order to preserve the life of another.  If non-fatal organ theft did occur, could the perpetrator be charged with some kind of theft or only with assault?  As is so often the case, it depends on the jurisdiction.

II. Torts?

Some states have created statutes criminalizing the mishandling of a cadaver or making it into a tort, but they specifically only address cadavers, not organs or tissues taken from living people.  One district court has held that a human cell line is property capable of being converted, but that is definitely a minority position. U.S. v. Arora, 860 F. Supp. 1091 (D. Md. 1994).  In any event, conversion is only a tort rather than a crime, which seems like a fairly weak remedy for something that would turn an immortal being mortal.  On the other hand, Yashida has deep pockets, and Wolverine’s damages would be immense.

III. Crimes

As an example, in New York Yashida would be guilty of first degree assault:

A person is guilty of assault in the first degree when:  1. With intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a  deadly weapon or a dangerous instrument; or
2. With intent to disfigure another person seriously and permanently, or to destroy, amputate or disable permanently a member or organ of his body, he causes such injury to such person or to a third person; or
3. Under circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to  another person, and thereby causes serious physical injury to another  person;

N.Y. Penal Law § 120.10.  Any of those could work in this case, but that’s just a Class B felony.

Some states also have separate crimes for maiming (aka mayhem, mutilation), but they are often quite specific, like this one from North Carolina:

If any person shall, of malice aforethought, unlawfully cut out or disable the tongue or put out an eye of any other person, with intent to murder, maim or disfigure, the person so offending, his counselors, abettors and aiders, knowing of and privy to the offense, shall be punished as a Class C felon.

N.C. Gen. Stat. § 14-30.  That wouldn’t apply in this case, since Yashida didn’t affect Wolverine’s tongue or eyes.  California’s is a bit broader however:

A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body. For purposes of this section, it is not necessary to prove an intent to kill. Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole.

Cal. Penal Code §  205.  This would probably apply, it doesn’t require intent to kill, and the penalty is life in prison (albeit with the possibility of parole).  In fact, this would seem to apply to just about any theft of an organ from a living person.

IV. Conclusion

In the US at least, the crime Yashida could be charged with for non-fatal healing factor theft would vary greatly depending on where the crime occurred.  In at least some jurisdictions he could go to prison for life, even if he didn’t intend to kill Wolverine (and didn’t, in fact, do so).  But if there are any experts on Japanese criminal law in the audience, we’d love to hear what Yashida could be charged with there.

26 responses to “The Wolverine: Grand Theft Superpower

  1. Could Logan make an argument for murder, especially if they were in a jurisdiction that has done away with the “year and a day” limit for murder, or at least attempted murder? After all, but for Yashida’s intervening act of stealing Logan’s healing powers (were Yashida to have been successful), Logan would remain immortal. Thus Yashida’s actions would directly contribute to Logan’s eventual demise.

    • Wolverine would have to die from natural causes. If Wolverine were killed by any other means then it would have to be proven that his healing factor would have kept him alive.

      • Martin Phipps

        I take back what I just said because there’s the question of intent. Does Yashida intend for Logan to die? I think the answer has to be yes because he promises to “end [his] suffering” which implies that he will die as a result of the procedure albeit not right away. Thus if Wolverine were to eventually die then surely Yashida would be charged with his murder… unless of course Japanese law allows for mercy killing. If someone in Japan were to say to me “I am suffering! Kill me!” and I kill them is it murder under Japanese law? I would think it would be, in which case it would not be good enough if Logan agreed to a procedure that ended up causing him to die: Yashida should still be on the hook for murder.

        The problem being if someone were to shoot Logan and he died would that person also be charged with murder. Again, it would be a question of intent. If you know that Logan can no longer heal and you shoot him then you should be charged with murder: in fact, you and Yashida should both be charged with murder because you both contributed to hus death, although again it might have to be proven that Wolverine could have survived being shot if he still had his healing factor.

        If on the other hand you shoot Logan and you DON’T know his healing factor is gone then you would be charged with assault but not murder or attempted murder because you didn’t expect him to die. If he does die then Yashida should be charged with the murder.

      • Martin Phipps

        I forgot about manslaughter. If you shoot Wolverine and he dies even though you thought his healing factor would save him then it is not on;y assault but also manslaughter. Again, if it can be proven that Wolverine died not only from the bullet wound but also as a result of no longer having his healing factor then Yashida should also be charged with murder.

        I think the analogy would be this: suppose you poison someone but rather than killing them the poison causes the person to pass out, fall down the stairs and break their neck. It is still murder even though the actual cause of death was the fall.

        Am I wrong?

      • Poison
        As to the question of poison causing the victim to fall down the stairs, it would still be murder. You intended to cause the death and did in fact cause the death. The fact that the death came through a slightly different mechanism than you originally expected is irrelevant.

        Shooting Depowered Wolverine
        Now, as for your discussion of shooting a depowered Wolverine believing he would survive, I believe that would still be murder under most circumstances. You shot him with “malice aforethought” and he did in fact die. That is sufficient for murder. Otherwise, you could go around hitting people with a baseball bat to death and claiming you only intended to hurt them and turn murder into assault.

        Now the fact you didn’t intend a death may make it Second Degree (or similar depending on the language used by the state in question) rather than First Degree murder, but it remains murder.

        Yashida

        Whether Yashida would be responsible for murder for depowering Wolverine (in a non-fatal way) seems to be less clear cut, but I suspect the answer would be No. In that question, there is always something else intervening that kills him. I don’t mean something else intervening in the sense of falling down the stairs while poisoned, but some other active and truly independent force that kills him. That intervening cause breaks the chain of causation from Yoshida’s act to Wolverine’s death, which may well come decades later.

      • Martin Phipps

        “there is always something else intervening that kills him”

        That can be applied to all murder cases. “Your honor, it is true that my client shot at my client but that is not what killed him. It was massive blood loss that killed him.” In this case, as in any case, it would have to be proven that Yashida was responsible for Logan’s death if, say, he fell from a height and died from internal bleeding.

      • @Martin Phipps In a sense it is true, there are often other things that do the final killing. But there are degrees of intervention. In the case we are talking about with Wolverine, then the thing that finally kills him will probably be something sufficient to act as an intervening and supervening cause and break any legally meaningful chain of causation.

        In your example, it was the blood loss that killed him, but that blood loss is a direct result of him being shot with no intervening much less supervening causes in there.

        For comparison, imagine you accidentally hit a child crossing the street while you are driving. If he dies, you are may be guilty of manslaugher. On the other hand, if after you accidentally hit him but before he dies, someone else runs over and shoots him three times, that would most likely be a supervening cause and relieve you responsibility for manslaughter (though you may easily be open to other charges depending on responsibly you were driving).

  2. I don’t think the California aggravated mayhem law applies to stealing the healing power. “A person is guilty of aggravated mayhem when he or she unlawfully … causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body.”

    You could argue that losing his healing factor does not cause permanent disability as it leaves Logan at the level of an ordinary human.

    However, the method they use of cutting off his claws causes dissfigurement and deprives him of a member of his body.

    • Hmm… on reflection I could see a prosecutor charing someone that attacked a concert pianist if they did something that affected his ability to play.

    • Christopher L. Bennett

      But it does cause permanent disability, because it permanently deprives him of an ability he was born with. The fact that most people don’t have that ability shouldn’t matter, since lots of people have abilities others don’t.

  3. Superpower theft comes up a lot in comics. Generally, the parties solve the problem out-of-court (and often out-of-doors).

    PS: (only) when you get a chance, get around to my email request, por favor.

    • Most frequently in the cases of Rogue and Leech, both of whom absorb superpowers involuntarily. I suppose there’s a case to include Luthor’s (and various others’) use of Kryptonite. Plus the Scarlet Witch depowered a LOT of people, all at once, Was she charged with a crime for doing so?

      Also, of course, there are people who wish, frequently fervently, to be rid of their super power(s). Various incarnations of the Hulk, Ben Grimm, Cyclops, Rogue, Rahne Sinclair, and Unus the Untouchable fall into this category, along with (arguably) young Franklin Richards (evidence… he uses his power to suppress his power).

      Of course, the good guys often have to depower the super-baddies to defeat them. THAT list is endless. I would assume that the general defense of necessity covers nearly all cases of the good guys depowering the bad guys, if it IS illegal to depower someone without their consent.

      • Christopher L. Bennett

        But most of those aren’t stealing the powers (i.e. acquiring them for oneself), but simply eliminating/disabling them. I think that would constitute malicious destruction, or whatever the term would be, rather than theft.

  4. Due to cultural and religious factors, the rate of organ transplants in Japan are quite low and the laws are very strict on the matter; Japanese who want organ transplants often go abroad for it. It has to do with traditional views on the purity of the body.

    I don’t know what the laws would be on the matter, but its probable that Yashida should have went abroad before he committed his crime. I don’t see Japan treating organ theft lightly (then again, he’s powerful and rich, so maybe that doesn’t matter).

    On the other hand, I don’t think the law would see stealing bone marrow as the same as organ theft. Bone marrow regrows. Which does raise the question of whether or not Wolverine really would have lost his healing factor or if it would only have been temporary, although from the looks of things the process might have killed him anyway, and if it didn’t I doubt Yashida planned on leaving him alive (save maybe KEEP harvesting his powers).

    I take it Yashida would also be guilty of abduction and unlawful imprisonment as well, possibly some manner of conspiracy, and possibly torture considering how painful the process actually was (and that it was done while he was awake).

  5. Matthew Carberry

    I understood the adamantium to be poisonous to Wolverine, without his healing factor it would kill him.

    • In the comics you are absolutely right. In the movie continuity, they seem to be either ignoring that fact or presuming that Logan is unaware of it.

    • How does that work? Adamantium is supposedly chemically inert.

      • Melanie Koleini

        I don’t know how it works. But gold is chemically inert too and it is possible (albeit expensive) to die of gold poisoning.

        My guess is that the adamantium’s presence in his body interferes with some necessary possess like making bone marrow.

      • James Pollock

        Gold isn’t inert. It’s not very reactive, but it does react.

        I’m going to suggest that having gold-plated bones could cause problems, but gold poisoning not being one of them. Why do I believe that? Because I have gold bonded to my teeth.

      • Melanie Koleini

        I only mentioned gold poisoning because I vaguely remember reading about people (a long time ago) trying to maintain their youth by eating gold. Most of the time this was harmless (albeit ineffective) but one person (I can’t remember who) supposedly died of drinking too much of the gold infused elixir. Give the time period, who knows what relay killed him.

        On a separate note, ‘poisonous’ and ‘nonpoisonous’ is almost always dose dependent. People can die of ‘water poisoning’ even though human bodies are made of mostly water.

      • Could you possibly be thinking of mercury? For a while in China there was a belief that mercury would prolong long life and there was an emperor that historians believe died of mercury poisoning after trying to use it to extend his life.

      • Melanie Koleini

        Edit: technically, people can die of ‘water toxicity’ not ‘water poisoning’. To most non-medical people, ‘toxic’ and ‘ poisonous’ mean the same thing.

      • James Pollock

        “Could you possibly be thinking of mercury?”
        No it’s gold, and the belief still exists. There are people who take colloidal gold (colloidal silver, too) despite the fact that it does absolutely nothing for them.)

    • Very late reply: The issue wasn’t that it was poisonous. The comic explanation was that it interfered with the production of red blood cells from his bone marrow. His healing factor compensated for this, but when his healing factor is suppressed he’ll gradually become ill and eventually die.

  6. Wouldn’t it be analogous to severing a person’s spine to rid them of a constant pain they have on their legs; while that person is on the path of a natural out-of-control forest fire?

  7. Intentional infliction of emotional distress/”outrageous conduct” certainly comes to mind as a potential tort cause of action.

    Assault and battery is probably a better analogy than conversion. Powers are part of your person more than they are “property”.

    Medical malpractice is another plausible claim as a medical procedure was carried out without informed consent in a manner that caused harm without a good faith belief in the benefit that it would provide to the patient.

    Unjust enrichment is yet another plausible claim. This would seek disgorgement of the economic value of the benefit that Yashida received without consent, as opposed to focusing on the harm caused.

    I would be inclined to think that the remedies might be similar to those for an involuntary lobotomy or sterilization.

Leave a Reply

Your email address will not be published. Required fields are marked *