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.
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.
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.
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.
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.