Defending Kilgrave

(Spoilers for Jessica Jones ahead!  Trigger warning for discussion of rape.)

Jessica Jones features a private investigator, an attorney, accused criminals, and a killer on the loose.  There are so many legal issues it’s hard to know where to begin.  The Legal Geeks have written about the feasibility of Kilgrave’s victims raising an insanity defense, but I’m interested in a related but trickier question: what defense could Kilgrave offer if he were hauled into court (and prevented from influencing the case using his powers)?  At first glance it might seem like Kilgrave is guilty of numerous instances of murder, rape, theft, and countless lesser offenses.  But as Kilgrave claims, he isn’t a murderer himself, he just tells other people to do it.  I will consider three possible crimes: Hope Shlottman killing her parents, Kilgrave’s rapes, and Kilgrave taking money from the poker players.  The show is set in New York City, so I’ll be using New York law for the analysis.

I. Intent

Before looking at each crime, I should first talk about intent.  Not all crimes require intent; there are strict liability crimes such as driving over the speed limit.  But most crimes require some form of intent, which can be divided into two classes: specific intent and general intent.

Specific intent means the state must “prove that the defendant has intended to commit some further act, or has intended some additional consequence, or has intended to achieve some additional purpose, beyond the prohibited conduct itself.” 35 N.Y. Jur. 2d Criminal Law: Principles and Offenses § 26.  Murder is the classic example of a specific intent crime.  The degree of guilt depends on the additional consequence or purpose intended by the defendant.  If the defendant intended to kill the victim, that’s intentional homicide.  If the defendant did not, then that may only be manslaughter.

General intent means that the state only has to prove that the defendant intended to commit the prohibited conduct.  Rape is the typical example of a general intent crime.  What matters is that the defendant engaged in sexual intercourse with the victim and the victim did not consent.  It does not matter whether the defendant was aware of the lack of consent or intended for the intercourse to be nonconsensual.

II. The Killing of Hope Shlottman’s Parents

In this case, Kilgrave instructed Hope Shlottman to shoot her parents, which she then did, resulting in their deaths.  This was done under the influence of result of a virus that Kilgrave produces, which causes others to obey Kilgrave’s commands literally and unflinchingly.  Hope herself has a few solid defenses: involuntary action, legal insanity, duress, and involuntary intoxication.  But what about Kilgrave?  Is he culpable?  After all, he just told Hope to kill her parents.  He didn’t pull the trigger himself.

Alas for Kilgrave, this argument is more effective as a delusional rationalization than a legal defense.  What Kilgrave did is a solid, though unusual, example of solicitation, the basic form of which is this:

A person is guilty of criminal solicitation in the fifth degree when, with intent that another person engage in conduct constituting a crime, he solicits, requests, commands, importunes or otherwise attempts to cause such other person to engage in such conduct.

N.Y. Penal Law § 100.00.  The higher degrees of solicitation depend on the defendant’s age and the seriousness of the offense solicited (in this case, very serious).  Kilgrave both commanded and “otherwise attempt[ed] to cause” Hope to engage in conduct constituting a crime, which she then did.  Once the crime was carried out, Kilgrave became fully liable for the murder. N.Y. Penal Law § 20.00.

But wait!  Isn’t the whole point that Hope isn’t guilty?  How can Kilgrave be guilty of something that wasn’t a crime for Hope?  The New York legislature thought of that, and both the general accessory liability statute § 20 and the solicitation statute § 100 have provisions covering this scenario:

In any prosecution for an offense in which the criminal liability of the defendant is based upon the conduct of another person pursuant to section 20.00, it is no defense that:
1. Such other person is not guilty of the offense in question owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the conduct in question or of the defendant’s criminal purpose or to other factors precluding the mental state required for the commission of the offense in question; or
2. Such other person has not been prosecuted for or convicted of any offense based upon the conduct in question, or has previously been acquitted thereof, or has legal immunity from prosecution therefor

§ 20.05.  Similarly:

It is no defense to a prosecution for criminal solicitation that the person solicited could not be guilty of the crime solicited owing to criminal irresponsibility or other legal incapacity or exemption, or to unawareness of the criminal nature of the conduct solicited or of the defendant’s criminal purpose or to other factors precluding the mental state required for the commission of the crime in question.

§ 100.15.

So Kilgrave is criminally liable for the intentional murder of Hope Shlottman’s parents, even though he only “asked” Hope to do it and she herself is likely not guilty of murder (and in any case was not convicted of it).

III. Rape

This is an even clearer case than the murder of Hope’s parents.  New York criminal law is clear that “A person is deemed incapable of consent when he or she is … mentally incapacitated.”  Penal Law § 130.05(3)(c).  Mentally incapacitated is defined as when “a person is rendered temporarily incapable of appraising or controlling his conduct owing to the influence of a narcotic or intoxicating substance administered to him without his consent, or to any other act committed upon him without his consent.” § 130.00(6).

In this case, Kilgrave rendered his victims temporarily incapable of controlling their conduct owing to a) the influence of an intoxicating substance (the virus) administered to them without their consent or b) the intentional viral infection, again without their consent.

Notably, the prosecution does not have to prove the exact nature of the intoxicant.  People v. Di Noia, 481 N.Y.S.2d 738, 740 (1984).  The considerable circumstantial evidence (Hope lying in bed for hours, refusing to leave, shooting her parents for no reason) is sufficient to show that her mind had been incapacitated.  Similarly evidence exists for Jessica (e.g. the injury to her ear).

Lack of consent could also be proven by Hope and Jessica’s physical helplessness.  § 130.05(3)(d).  Physical helplessness is defined as when a person is “unconscious or for any other reason is physically unable to communicate unwillingness to an act.” § 130.00(7).  Hope and Jessica were conscious, but they were physically unable to communicate their unwillingness to engage in sexual intercourse (as a result of Kilgrave’s compulsion).

Kilgrave can offer no defense to charges of rape.

IV. Theft

Here there is a glimmer of hope for Kilgrave’s defense team (though even this is illusory, as we shall see).  Kilgrave took hundreds of thousands of dollars from a group of wealthy men at a poker game by commanding them to go all in and then promptly fold.  However, at least under New York law, that may not have been theft (technically larceny).

Unlike murder, the end result was not inherently illegal.  Killing a person is generally a crime unless some exception applies.  But it is generally legal for one person to give another a large sum of money.

Unlike rape, the larceny statutes and case law are primarily concerned with the perpetrator’s evil intent, not the victim’s lack of consent or true knowledge.  Larceny most encompasses taking by fraud, embezzlement, extortion, false promises, and keeping lost property.  But Kilgrave didn’t do any of that.  He didn’t make any false representations or promises, he did not embezzle the money, he did not extort it on pain of some injury, nor was the money lost.

So here is one crime that Kilgrave may not be guilty of, at least arguably.  But there’s a catch: rather than simply tell the men to give him the money, Kilgrave nominally played along with the poker game.  This is not a crime in itself: New York appears to allow private, social gambling (although contracts for wagers are unenforceable).  But there is a catch:

Every person who shall, by playing at any game … lose at any time or sitting, the sum or value of twenty-five dollars or upwards … may … sue for and recover the money or value of the things so lost and paid or delivered, from the winner thereof.

NY Gen. Obligations Law § 5-421.  In other words, the men can sue to recover the money from Kilgrave because, technically, it was lost in a poker game.

V. Conclusion

Although perhaps unsurprising, it is reassuring to know that the nature of Kilgrave’s powers does not put him outside the reach of the criminal law.  And even in cases where it does, he might not be able to keep his ill-gotten gains.

27 responses to “Defending Kilgrave

  1. What about the defense that Kilgrave mentions in one of the episodes, that his power isn’t something he administers, he cannot turn it off. Does this confound the ability to determine intent? I mean, just to get in their heads I’ve said “fold, fold now” to people playing poker hundreds of times, and some of them did it. So far as I know, I didn’t compel with any super power though.

    • Well he certainly doesn’t seem to be trying to avoid it activating even though he knows what it can do, and he isn’t warning these people that it might cause something they don’t want to happen.

      • Sure, but I mean, I think pretty much everyone agrees he’s a monster. The point of the comment (and I suppose post, and blog in general) is what would be the legal implications? If he tried to defend himself saying he has no choice, and it isn’t his responsibility to avoid it, would he have a defense? At one point in the show they make a him fairly empathetic: living with his condition, he’s completely incapable of knowing if anyone, ever, has genuinely cared about him, at all. Do the normal tests for intent and consent apply to someone who very much is in that situation, could a defense be built arguing that they don’t?

      • Could his defence team build a case with that? Yes.

        Would it work? Doubtful.

        Firstly, of course, a person like Kilgrave is far too dangerous to simply be allowed to live at large given the amount of damage he causes and the simple nature of his powers. Even if he never, ever committed any crime, he could likely be locked up just because of his abilities, akin to putting someone anyway because they have an incurable disease that puts everyone else at risk.

        But he did use them to commit crimes, and he did so knowingly and wittingly. The nearest equivalents to what you propose would be the Irresistible Impulse insanity defence, whereby someone is found not guilty by reason of insanity because they have a mental illness that compelled them to commit their crime- where that defence is allowed, it doesn’t apply to people who have such an illness, are aware that it puts others at risk, but simply refuse to inform the authorities or seek some kind of medical treatment for their condition.

        It also resembles someone who has a sexually transmitted disease going around having sex and trying the defence “I can’t do anything about having an STD”- it ain’t gonna fly. No, Mr Kilgrave, you may not have much if any real control over your condition and you might not be able to turn it off, but you DO know that you HAVE such a condition and that knowledge has NOT stopped you from being in, at best, an extremely criminal negligent way, at worst (and more plausibly) like an unprincipled psychopath who thinks that the law does not apply to him. It does, and you’re going down for it.

    • Speech is voluntary. If he said, “Stop them,” in a moment of aggravation, then, maybe. But without some such impulse, he intended it.

    • In some instances, it may well confound the ability to determine intent. If, as he alluded to in one episode, he tells someone to go do something profane to themselves and they mutilate themselves in order to attempt to comply literally, he might well not be guilty of anything. He could argue that his intention was just to make a profane comment, which is perfectly legal and done all the time. It might well be true. Even if he did actually intend the harm, establishing that intent would be nigh impossible.

      But that will only help him out in certain circumstances. First, as the post here describes well, it is no help at all in rape. They are incapacitated by the combination of his virus and his command. If he gives them a command such that they are incapacitated or helpless of that purpose then it would be rape. Similarly, even people without superpowers can be guilty of solicitation if they verbally encourage a criminal activity, so the fact he can’t turn his powers off will be no help if he says something encouraging about a murder.

      Finally, there are concepts like manslaughter and criminal negligence that would likely help deal with the mens rea issue for at least the most heinous harms that are committed with his powers even when proving he actually intended the crime is hard.

  2. Jonathon, you come up with good analogies, but (and I am not a lawyer myself) I’m not sure the actual laws in NY would apply like you seems sure they would. For example you say an “I can’t help having an STD” as a defense wouldn’t fly, but my understanding is, in many states, it would. In lots of states it’s a felony to knowingly transmit any STD, in some it’s only a specific list (mostly HIV/AIDS of course,) and a few even have no law at all. You could no doubt sue someone in a civil case, but the criminal defense may well work fine. Especially if you’re patient zero for some new disease that has no name and you not being a doctor arguably can’t fully understand.

    • This case has led to murder and rape though, with the person responsible being fully aware of what will happen when he says certain things. Typhoid Mary was kept under quarantine twice (the second lasting till her death), and in that case she refused to believe that she actually had the disease.

      So we have a man who knows full well what he has, what it will do and has taken absolutely no steps to prevent it from effecting others and indeed has deliberately taken advantage of it and to cause others death and lasting damage (might be able to get him on slavery charges too). He’s almost certainly not walking away a free man.

      • It’s also worth noting that he does in fact demonstrate the ability to control his abilities simply by choosing his words carefully. He made painstakingly certain that his purchase of Jessica’s old house had no powers involved in it (other than getting the money), and further specifically avoided using his powers on Jessica throughout most of the series (albeit only so she wouldn’t notice they don’t work). Kinda throws an “I can’t help it” defense out the window when you’ve gone ahead and demonstrated that you CAN help it. He knows HOW to not use it. He just doesn’t WANT to not use it.

  3. Tan’s comment pretty well summarizes the issue. To put a stricter legal gloss on it: in each of the cases discussed in the post, Kilgrave was acting with conscious intent. He does mention that he sometimes accidentally commands people to do something he did not intend, but that appears to be rare from what we see in the show (though it’s possible he went through an awkward learning phase). Once he understood the nature of his powers, however, he could still be criminally liable for the results of even unintentional commands if it amounted to criminal negligence.

    In New York, “A person acts with criminal negligence with
    respect to a result or to a circumstance described by a statute defining
    an offense when he fails to perceive a substantial and unjustifiable
    risk that such result will occur or that such circumstance exists. The
    risk must be of such nature and degree that the failure to perceive it
    constitutes a gross deviation from the standard of care that a
    reasonable person would observe in the situation.”

    If Kilgrave spouts off a command in a gross deviation from the standard of care that a reasonable person would observe in the situation, then he could still be culpable for the result even though he didn’t intend it.

  4. I see it as a proof problem. Can they prove he has this power beyond a reasonable doubt. I’m not saying they couldn’t but it would be tough as it’d be a battle of experts.

    • In the case of murder it doesn’t matter if he has powers or not. He told Hope to kill her parents, and she did. That’s solicitation (and accessory liability for murder) whether Kilgrave has powers or not.

    • As it was artificially created and experimented on, I assume that an in-depth medical examination could prove the existence of the virus, as well as its impact on other people. Now of course they might have a hard time proving he actually did command every single thing that he did, but it’s not necessarily impossible.

  5. With the poker example, are you saying no crime has been committed if there weren’t a poker game? I mean, it’s legal for someone to give someone else a fortune. So can Kilgrave walk up to Donald Trump and say, “Give me $10 million and don’t worry about it later?” secure in the knowledge that if the facts ever fully come out, he’s not guilty of any crime?

    • As near as I can tell he wouldn’t have committed a crime. Someone better versed in the intricacies of New York criminal law might be able to come up with a theory under which he could be prosecuted, but it doesn’t seem to fit the elements of larceny.

    • I would think this would be the same as getting someone drugged or drugged, or hypnotising them, into giving them your money (eg. signing a cheque). Some magician-style con artists are also able to trick people on the street into handing over their wallets by rapidly asking questions or for help (“Excuse me, can you help me with my bag? Thanks. Can you hold this for me? Great. Here, let me take to your wallet- thank you. I just need to grab something- be back in five minutes”).

      Basically, pretty sure using his powers to get people to just give him their money is also illegal. At the vey least, he would be made to hand it back- they were not in the right frame of mind, and he took advantage of that.

      • But, it’s not voluntary. He’s effectively administering them mind-altering drugs (or the equivalent) without their knowledge, then exploiting it. The people Kilgrave is playing poker with are not going out of their way to play with someone who has mind-altering powers- they are neither willing, nor witting. I don’t see how that is much different from him slipping them something and then taking advantage of it.

        The larceny-by-trick example is more to establish that voluntarily handing over your property doesn’t mean you have not been robbed; I didn’t mean it was the same thing.

    • * Drunk. Drunk or drugged.

      • “Getting someone drunk or drugged” implies slipping them something, which is a definite problem. But if someone is drinking (or taking drugs) voluntarily, and they hand over a bunch of money while intoxicated, I don’t think that qualifies as larceny on the part of the recipient.

        Similarly, the magician-style con artist example is much closer to larceny-by-trick: the perpetrator takes possession of the property (the wallet is voluntarily physically handed over) but not title (the giver does not convey ownership).

        In this case, the poker players “intended” to give Kilgrave ownership over their money (that’s how losing at poker works, after all). Clearly their intent was not legitimate (no more than Jessica or Hope’s consent to sexual intercourse was), but larceny looks to the bad acts of the perpetrator, not the lack of consent of the victim. I’m not convinced that Kilgrave could be found guilty of larceny, as dissatisfying as that might be to our sense of justice.

      • But, it’s not voluntary. He’s effectively administering them mind-altering drugs (or the equivalent) without their knowledge, then exploiting it. The people Kilgrave is playing poker with are not going out of their way to play with someone who has mind-altering powers- they are neither willing, nor witting. I don’t see how that is much different from him slipping them something and then taking advantage of it.

        The larceny-by-trick example is more to establish that voluntarily handing over your property doesn’t mean you have not been robbed; I didn’t mean it was the same thing.

  6. Does Kilgrave have any kind of obligation to disclose the known effects of his power?

  7. Related question, pertaining to the new Fox show LUCIFER, loosely (Luce-ly?) based on the Vertigo comic: In the show (and maybe the comic for all I know), Lucifer Morningstar has an almost irresistible seductive effect on women, which he can use to cloud their judgment and get them to do things they’d never normally do (like allowing him to visit or release a prisoner from police custody). He does also use this power to get women to sleep with him, including a psychiatrist that he begins an ongoing “exchange” of therapy for sex with. Now, allegedly all he really does is get people to act on their buried desires, so he would presumably argue that they’re doing what they wanted to do anyway and that it’s therefore consensual. But his power is compelling them to lose their inhibitions, so isn’t that basically the same as intoxicating them? And is he, therefore, committing serial rape?

    • I suppose this would be akin to slipping an aphrodiasic into somebodies drink to get them “in the mood” so to speak without their knowledge…so yes, probably rape.

      Of course, unlike Kilgrave, he’s the Devil, so whether you could ever punish him for this is another story, but nonetheless…

      • It’s worth noting that Lucifer is EXTREMELY upfront about both his identity and his power, to literally everyone. Most don’t BELIEVE him, but for example with the psychiatrist, it’s less that he uses his power to sleep with her, and more that she becomes openly fascinated with him as he uses his power to question her about a patient, he warns her of the danger, she pursues anyway and he agrees to sleep with her. It was never actually his goal to sleep her, and he did make a good faith effort to inform her that she was intoxicated and even why.

      • That’s still kind iffy, to be honest. Pretty sure Kilgrave wouldn’t be off the hook if he was upfront about HIS powers and nobody believed HIM, for one, anymore than if I spiked your drink, told you upfront, and you didn’t believe me then either. If I know or strongly suspect that you don’t believe me when I tell you you are intoxicated, that doesn’t let me off the hook, because I’m still the responsible party here.

        Frankly even when they DO believe him, it’s still murky given how little control they how have.

        Side note- haven’t read all of the Lucifer comics, but based on the ones I have read…no, he would not engage in that sort of behaviour. He is adamant that he doesn’t make humans “do” anything in any way, shape or form, and doesn’t like being blamed for it. He’s a totally different personality from this guy- an ice-cold ubermensch, not a playboy hedonist.

  8. What do the legal minds here think of Jeri’s lawyering to get the murder charge against Jessica dismissed? For those not watching, it was : “Kilgrave can control people’s actions through unknown and unspecified means, as the defense will be able to demonstrate by testimony from the police and civilians on the dock (not to mention other people Jessica encountered like her support group, Trish, the stockbroker, the club patron at the fence, etc. ) It is unreasonable to assume that she is somehow immune to his powers. It is therefore reasonable to believe that the only way Jessica could have snapped his neck is if he asked her to do so.

    Was there an involuntary manslaughter charge hiding in there?

    • No, because then Kilgrave could order all sorts of crimes and everyone who committed them would be legally guilty.

      Involuntary manslaughter only applies if it is a) Constructive Manslaughter (ie. you accidentally killed someone while committing another crime, like running someone over while speeding), or b) Criminally Negligent Manslaughter (ie. failure of duty that leads to a death, like a cop ignoring a break-in or a surgeon drunk in the theatre). All other forms of manslaughter are subtypes of these two.

      Neither of these apply here. If the idea is that Jessica committed murder because someone brainwashed and ordered her to commit said murder, and there is strong evidence that this is indeed the case, then Jessica is not guilty of anything- Kilgrave is the killer, and Jessica is merely his weapon. There is no manslaughter involved because this is a clear case of intentional killing, but the intent was not Jessica’s.

      You COULD argue that Jessica is guilty of manslaughter if she, for instance, knowingly sought Kilgrave out knowing full-well that he might take control of her and order her to commit murder…but that is legally and ethically murky as it comes awfully close to victim-blaming, since at the end of the day it is still Kilgrave who is ultimately responsible for the act.

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