Category Archives: movies

Nova’s Complex Legal History

Although the Guardians of the Galaxy movie did not feature a specific character identifiable as the superhero Nova (e.g. Richard Rider), it did feature the Nova Corps, and there have been indications that Nova may make an appearance in a sequel.  It turns out that the character of Nova has an interesting legal history, one that attorney Britton Payne has written a great post about on his copyright blog, Copyright On.  Check it out!

Guardians of the Galaxy and She-Hulk

Guardians of the Galaxy was a really terrific movie, and I highly recommend it.  As with many of the more cosmic Marvel storylines there isn’t much more for me to say about it than that.

I’ve continued to follow She-Hulk with similar results.  The last couple of issues have been good (albeit a little bit wheel-spinning in terms of the larger story arc), but there haven’t been any big legal issues that leapt off the page at me.  Still, it’s a good book.  The writer, Charles Soule, has indicated that “There’s a bunch happening in issues 8-10 I think [Law and the Multiverse will] have a field day with”, so I’m looking forward to that in a couple of months.

So, back to the backlog of questions from readers.  Look for more (and more substantial) posts in the coming weeks.

X-Men: Days of Future Past and Thoughts on Due Process

This guest post was written by Joe Suhre, of Suhre & Associates, LLC, a firm with offices in Chicago, Illinois, Dayton, Ohio, and Columbus, Ohio. Joe previously wrote guest posts on Defending Loki and Captain America: The Winter Soldier.

The Most Important Movie of the Year?

Recently, US-authorized drone strikes killed several American citizens accused of being a threat to the country based on their terrorist affiliations and unapologetic rhetoric opposing US policy.

Oh, wait . . . that was the beginning of X-Men: Days of Future Past.

You probably already know that this article will have multiple spoilers, so if you haven’t yet seen the latest iteration of Marvel’s X-Men, you should go see it soon. Then come back and tell me in the comments whether you believe in my assessment of this film or not.

What’s the Big Deal?

If you have seen Days of Future Past already, did you see what I saw? I will admit it is somewhat hidden, but only because we are trained to ignore it, since it just gets in the way.

I am talking about due process—due process, as in the opposite of capricious verdicts and judgments based on prejudice, fear, and political expediency; as in that little right we inherited from our Founding Fathers, who had experienced the lack of due process first hand and decided the Constitution wasn’t complete until we included it in the Bill of Rights.

You might disagree with me when I say the framers of the Constitution had the events of X-Men: Days of Future Past in mind when they insisted that due process be inviolate, so let’s review the instances in the movie and then see if we face the same issues today.

First Class 

Everything really started at the end of X-Men: First Class when, in a mercurial moment, mutants went from heroes to goats on the beach in Cuba, incurring the wrath of the instantly allied US and Soviet fleets. The Soviets would obviously have no problem firing on a small contingent of Americans, but why did the generals calling the shots in Washington order the execution of US citizens without due process? And why were the American Sailors, so soon after World War II, willing to “just follow orders,” especially after hearing Agent MacTaggert screaming over the com that the situation was contained?

I guess their justification for such an attack was fear; fear based on ignorance and concern for safety. Which, by the way, is the same tactic currently exercised by law enforcement across the country. In fact, according to the Bureau of Justice Statistics, police kill 400 – 500 innocent people each year out of fear for their own safety, significantly more than the 33 officers killed by firearms each year in the line of duty.

A 2012 example of irrational fear in Cleveland, not unlike the attack levied against the mutants on the beach, involved a man and woman whose car backfired. The retaliation by police to the possible gunfire from the car resulted in a force of 60 police cars pursuing the now frightened couple and ended with 115 officers firing 140 bullets into the car in less than 30 seconds. The unarmed couple was pronounced dead on the scene.

Kennedy Assassination

Speaking of no due process, although the details were sketchy on how the US government accused Magneto of complicity in the JFK assassination, it is clear that government suspicion that Magneto manipulated the “magic bullet” was justification for his incarceration.

Of course, in 1963 Erik Lehnsherr’s incarceration was illegal, but now after several rounds in congress and many court challenges, the President on December 26, 2013 signed into law that the government can arrest anyone on suspicion only and detain them indefinitely without trial. Welcome to Magneto’s world.

Not that I subscribe to the rhetoric of Magneto, but you have to admit that being thrown in solitary without due process, tends to sap any loyalty one might have for King and country; whether you are a German Jew or a US Citizen of the wrong color, species, or ideology.

Vigilante Justice

One element of vigilante justice that makes it not only illegal but immoral as well is that the vigilante, lynch mob, or angry villagers with torches and pitch forks don’t feel bound by due process. Their aim is to dispense justice, quickly—right or wrong. What drives the vigilante is fear that justice won’t happen without them taking over.

Vigilante justice in Detroit occurred in April of this year when a man hit a 10-year old boy with his truck. The driver stopped to help but was immediately beaten into a coma in retaliation even though surveillance cameras would later show the boy ran in front of the oncoming truck leaving no time to stop. Concern for due process would have allowed the mob to see that the man was not at fault after a thorough investigation.

But in another universe, maybe the boy was a mutant, and his fellow mutants felt that there would be no justice unless they acted on their own. Thus was the mindset of Mystique as she set about finding and executing Trask. It all seemed clear what she had to do since nobody else was willing to stop Trask from continuing with his plans against mutants. Due process wasn’t on her mind, and as it usually does, her vigilante justice backfired.

Due Process and Personhood

Without getting into a history lesson on civil rights in America, one doctrine that kept slaves and minority races under the boot of the majority was the belief that they didn’t fully qualify as human. The majority claimed belief in rule of law, due process, and justice, yet denied an equal share of this philosophy to those deemed as “less human.” This belief also fueled the Holocaust in Germany, where enslavement and execution of “untermenschen” or “subhumans” was ok, to the tune of eleven million dead.

Trask was quick to play on this flaw in humanity when he was able to convince the powers that were, that mutants, by virtue of their differences also didn’t deserve consideration as humans and should be targeted as enemies. His deep seated prejudice was made plain when, suspecting a Vietnamese general to be a mutant, he said to others in the room driven to panic, “Don’t shoot it.”

Denying Due Process 

I dare say, in a classroom most students would see the injustice and immorality of denying human rights to any individual based on race. Maybe racist attitudes are fading away in our culture. Let’s hope so. But my discussion has not been about the obvious ethnic lessons of X-Men: Days of Future Past. I have been talking about due process and why we should be aware of its importance.

To whom are we willing to deny due process today? Do you think we should afford all people the right of presumed innocence? Or are some crimes so heinous that it is hard to restrain us from rushing to judgment and bypassing due process? Unfortunately, I have seen instances where many people feel that for some crimes due process isn’t important and should be suspended. Let me toss around a few words. Let’s see what your emotional response is to arresting:

  • Drunk drivers;
  • Terrorists;
  • Child molesters;
  • Rapists;
  • Drug dealers

A police officer arrests and handcuffs a man.

You have the right to . . . oh never mind, just get in the car @$&hole.

The question is, are we willing to trust our system of justice when it comes to these types of crimes? Or do we treat these individuals as “mutants . . .” to be feared and condemned as guilty before they are even tried? In the case of a drunk driving arrest, you are presumed guilty. Your license is suspended and you are given a notice of suspension. Police officers in these cases are judge, jury, and executioner. It is a very efficient system.

However, putting justice in the hands of the people can be slow. It was a risky move by the founding fathers. Many feel that people show too much mercy and not enough justice. They fight for mandatory sentences, new laws, and regulations that take authority away from the judge and jury. They allow exceptions to every right we have in an attempt to control our “unruly” system.

I like what Charles Xavier said to Raven at the end of X-Men, “I have been trying to control you since the day we met and look where that’s got us . . . I have faith in you Raven.” Perhaps we should have faith in each other as well.

Due process isn’t perfect, but it is fair. It is foundational to our freedom. In light of the alternative, it is a pretty big deal. Is it significant enough to suggest that X-Men: Days of Future Past is the most important movie of the year?

Ask me again in ten years.

Captain America: The Winter Soldier

This guest post was written by Joe Suhre, of Suhre & Associates, LLC, a firm with offices in Chicago, Illinois, Dayton, Ohio, and Columbus, Ohio. Joe previously wrote a post on Defending Loki.

Introduction by James Daily: This post contains significant spoilers for Captain America: The Winter Soldier.  It’s a very good movie, and if you haven’t seen it you should definitely check it out!

Continue reading

The Hobbit and Refugee Law

This guest post was conceived of by Piyali Syam and authored by Eric Jokinen. Piyali is Managing Editor of LLM Info, where she occasionally writes about Middle Earth legal problems as well. Eric got his J.D. at the University of Southern California, and was an associate at Proskauer Rose in New York before branching out and becoming a full time freelance writer. Thereafter, he somehow got involved in attempting to analyze the legal problems of fictional characters.

 

The Hobbit and Refugee Law

With the recent release of the movie The Hobbit: The Desolation of Smaug, we thought it would be interesting to offer a bit of legal analysis to go along with the film. The central story is one that involves the displacement of a group of dwarves from their homeland by a conquering dragon, and it made us wonder—what would happen to the dwarves under modern international refugee law? What about the dragon? And what of the dwarves’ treasure hoard? Below, I will attempt to answer some of these unique questions.

It’s tempting to say that this entire post is a flight of fancy, given that we’re talking about fantastical beings. But since it seems that just like real-world dictators, dragons don’t bother themselves with the dictates of international law, the parallels may be closer than you might think.

Background facts – the dwarves’ expulsion from the Lonely Mountain

According to Middle Earth lore, the dwarves were the first to inhabit the Lonely Mountain.  Originally, it was used as a mining colony. Over many years, however, it developed into a central stronghold of a major dwarvish kingdom.

The dwarves of the Lonely Mountain were a prosperous people, and their mining activity yielded an extraordinary amount of precious metals and gems. Unfortunately, this attracted the attention of Smaug, a fire-breathing dragon. One day, he attacked the Lonely Mountain, and killed and drove out the dwarves. The surviving dwarves, led by Thorin Oakenshield, fled and went to live in exile in the Blue Mountains.

Back to reality – basic international refugee law

Refugee law on Regular Earth is governed mainly by the Convention Relating to the Status of Refugees of 1951 and the Protocol Relating to the Status of Refugees of 1967, to which most nations are parties. The primary international organization tasked with facilitating the proper treatment of refugees is the United Nations High Commission on Refugees (UNHCR).

So, who is a refugee under international law? A person who:

  • Is outside his or her country of nationality or if he or she doesn’t have one, outside his or her country of former habitual residence;
  • Has a “well-founded fear of persecution” due to race, religion, nationality, membership in a particular social group, or political opinion; and
  • Is unable or unwilling to return to their former country and attempt to avail him or herself of the protection thereof.

If a person meets this definition, he or she is entitled to a number of protections. Even if a person does not meet the definition, however, principles of customary international law generally still provide that person with some protection. For example, the principle of non-refoulement provides that a person should not be expelled or returned to the “Frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” There is also the 1984 Convention Against Torture, which prohibits the forcible removal of persons to a country where there is a real risk of torture.

So, where do the dwarves stand?

The dwarves are in an interesting situation.

Assuming that the Lonely Mountain was a sovereign nation under the control of the dragon Smaug, the danger is clearly too great for them to return there. The probability is quite high that, if they attempt to return home, they will be killed. And it can be argued that this danger is due to their race, nationality, or even political view. Thus, it seems that they might be entitled to protection as refugees under the laws of Regular Earth.

But the dwarves aren’t seeking asylum, and this changes things.

If the dwarves wanted to stay in the Blue Mountains, or the Shire, it would be a different question. But everyone knows that a soft life in a hobbit hole with a dozen meals a day doesn’t suit the pleasures of the dwarves.  They prefer to occupy themselves with mining and smithing. Instead of settling somewhere new, the courageous lot decided to retake their mountain—thanks in part to the persistence of Gandalf the Grey, who is a notorious troublemaker or one of the saviors of the world, depending on whom you ask.

They’re not asking anyone to allow them to settle within their borders. Instead, they mainly need material support and safe passage through various nations. Sadly, however, many of their actions on this quest, as detailed in J.R.R. Tolkien’s novel The Hobbit, would probably lead to their lawful arrest.

Detention of the dwarves

Take, for example, the dwarves’ detention by the elves of Mirkwood. While it’s true that detaining a refugee is generally presumed to be inappropriate, this rule is fairly broad. It even covers refugees that enter a country illegally, provided that they’ve come directly from their homeland and present themselves to authorities without delay. There are certain exceptions, however. An authority may detain refugees if time is needed to make an asylum determination or to verify identity, to name a few purposes.

Unfortunately for the dwarves, by the time they reach Mirkwood, they’ve traveled through a number of nations (without so much as a single passport stamp). Accordingly, the elves of Mirkwood were probably within their rights to apprehend the dwarves after finding them in conflict with giant spiders. This provides them with an opportunity to control the situation while attempting to properly verify the dwarves’ identities and immigration statuses.

Voluntary repatriation

Okay, so the dwarves aren’t asking anyone for asylum. Amazingly, they actually want to return home. So what happens to those refugees who want to go back? Well, there is historical precedent for voluntary repatriation, but it generally requires the participation of the government of the country the refugees want to return to. And, like difficult regimes back here on Regular Earth, there are no indications that Smaug wants to pursue a repatriation initiative—which means that the dwarves’ only option to return home is war.

Could Smaug ever become the rightful “owner” of the territory of the Lonely Mountain?

Under U.S. real estate law, a person can become the legal owner of the real property of another by “adverse possession.” This requires the new owner to make use of the property for a certain period of time and meet a number of other requirements. In our hypothetical scenario, however, Smaug is a conqueror of a nation, so adverse possession may not be the right way to view the situation.

In the context of war, the so-called “right of conquest” once was a principle of international law that legitimized conquerors of nations. Now, however, “wars of aggression” (i.e., not for self-defense, but for territorial or other gains) are negatively defined in U.N. Resolution 3314, but are not illegal per se.

War crimes, however, are illegal. Murder is a war crime that Smaug is likely guilty of in connection with his taking of the Lonely Mountain. As a war criminal, he likely would not be allowed to remain in possession of the Lonely Mountain. This includes the loss of the masses of gold and jewels within it, along with the key symbol of dwarvish royalty, the Arkenstone.

Guest Post: Defending Loki

This guest post was written by Joe Suhre, of Suhre & Associates, LLC, a firm with offices in Chicago, Illinois, Dayton, Ohio, and Columbus, Ohio. Joe received a Criminal Justice degree from Xavier University and worked for 6 years as an auxiliary police officer. He later received his Juris Doctorate from the University of Cincinnati.

In the closing sequence of Marvel’s The Avengers, The World Security Council that evidently has the authority to order a nuclear strike on New York City, questions Nick Fury about the disposition of Loki. Calling Loki a war criminal, they ask Mr. Fury why he let Thor take Loki away when he should be answering for his crimes.

In this iteration of the Multiverse, evidently the bureaucracy of the United States has given way to the autocratic decisions of an infighting oligarchy that ignores due process and extradition laws. Well, at least Nick Fury does.

I think I would have rather seen a little more adherence to law and let Loki have his day in a U.S. Court. I say this, because as a criminal defense attorney, I believe there is a reasonable defense for Loki.

Loki’s Past, the Key to His Defense

Based on Loki’s actions and behavior, Loki’s best defense would have to be the truth—he is insane—but not a generic insane; Loki suffers from grandiose delusional disorder, a very complex psychosis where non-hallucination influenced delusions become core beliefs and the main motivation for daily activities.

Loki’s delusions began when he was very young. As his defense attorney, I would chronicle his delusions from early childhood on, showing how specific events helped create and support his grandiose delusions. I would produce expert witnesses and then introduce testimony from Loki’s past that would that Loki’s behavior is consistent with his delusions.

Establishing the Beginning of Loki’s Delusions

Loki was born the son of Laufy, king of the Frost Giants. Laufy kept his infant son in seclusion due to his non-giant size. Odin, leader of the Asgardian gods led his armies to victory against the Frost Giants where Laufy was killed in battle. Loki was discovered hidden in the giant’s main fortress. His size, considered diminutive by his own kind, was actually similar to Odin and other Asgardians. Odin took Loki back to Asgard and raised him alongside his biological son Thor.

Even though Loki was raised as a god in Odin’s court, he would eventually learn the truth; Odin, Loki’s father since he could remember, destroyed Loki’s true family. He would never be favored above Thor. He was a “god” by association, not by blood. Despite his home address, Asgardians did not respect him as they did Thor.

As Thor rose from favor to more favor, the contradictions in Loki’s circumstances drove him to seek out the dark arts and mischief.

Expert Witnesses

After going over his past, I would bring in a child psychiatrist as an expert witness who would explain how the tragic and ironic events in Loki’s life from infancy to adulthood led him to replace the realities of his life with delusions.

My next expert witness would be an adult psychiatrist who had interviewed Loki extensively. I would have him or her explain the complexity of delusion disorder to the court and describe Loki’s dominant delusions. Since I am not a psychiatrist, I don’t know everything a doctor would find. My assumption would be that Loki’s main delusions would be his belief that he is the rightful king of Asgard, that he is smarter than everyone, and that as king of Asgard he is the rightful ruler of Midgard (Earth).

Corroborating the Findings of the Experts

Expert witnesses are indispensable to back up an insanity plea but equally vital are the actions and statements of the accused that would back up the claims of the experts. My next witness would show examples of Loki’s behavior that matched the findings of my experts.

Some of the instances I would use would be the following:

  • Loki’s introduction in the Avengers, “I am Loki of Asgard, and I am burdened with glorious purpose.”
  • Loki demanding a crowd of people to kneel to him and when they do states, “Is not this simpler? Is this not your natural state? It’s the unspoken truth of humanity, that you crave subjugation. The bright lure of freedom diminishes your life’s joy in a mad scramble for power, for identity. You were made to be ruled. In the end, you will always kneel.”
  • You are, all of you are beneath me. I am a god, you dull creature, and I will not be bullied…
  • Bruce Banner’s assessment was also an interesting observation, “I don’t think we should be focusing on Loki. That guy’s brain is a bag full of cats, you could smell crazy on him.”

Interspersed between Loki’s moments of delusion are cases where he acts normal and even helpful. This is typical for grandiose delusion disorder since people suffering from the same exhibit normal behavior when they aren’t trying to advance their delusions.

Conclusions

This part of the trial would typically be quite lengthy because we are attempting to establish a severe mental illness that would explain his crimes and his mental state during that time. We would not dispute the facts of the case, only the intent of the accused and his ability or inability to distinguish the morality of his actions.

We may weave through our defense the “McNaughton rule.” This rule creates a presumption of sanity, unless the defense proves “at the time of committing the act, the accused was laboring 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 what he was doing was wrong.” The McNaughton rule is the standard for insanity in almost half of the states.

In 1972, the American Law Institute, a panel of legal experts, developed a new rule for insanity as part of the Model Penal Code. This rule says that a defendant is not responsible for criminal conduct where (s)he, as a result of mental disease or defect, did not possess “substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.” This new rule was based on the District of Columbia Circuit’s decision in the federal appellate case, United States v. Brawner, 471 F.2d 969 (1972).

One of the most famous recent uses of the insanity defense came in United States v. Hinckley, concerning the assassination attempt against then-President Ronald Reagan.

In 1984, Congress passed, and President Ronald Reagan signed, the Comprehensive Crime Control Act. The federal insanity defense now requires the defendant to prove, by “clear and convincing evidence,” that “at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of his acts” (18 U.S.C. § 17). This is generally viewed as a return to the “knowing right from wrong” standard. The Act also contained the Insanity Defense Reform Act of 1984, 18 U.S.C. § 4241, which sets out sentencing and other provisions for dealing with offenders who are or have been suffering from a mental disease or defect.

The Verdict

Proving Loki’s delusion wouldn’t be difficult. However, on top of his grandiose delusion disorder is his Asgardian culture that believes in the glory of war, utterly destroying one’s enemies, and a totalitarian monarchy, that would further qualify him as being “unable to appreciate the nature and quality or the wrongfulness of his acts,” under Federal guidelines.

Even though John Hinckley, Jr. was found not guilty by reason of insanity, he has yet to be given unsupervised released from his hospital. Loki would most likely receive similar treatment after his verdict. However, maybe after 100 years of therapy and counseling Loki could be cured and lead a normal autocratic warrior life in Asgard.

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.

Continue reading

The Wolverine

The Wolverine is the latest X-Man movie from Fox, the sixth in the series overall. It’s set after the events of X-Men III: The Last Stand, and is in continuity with the earlier (admittedly dreadful) X-Men Origins: Wolverine. Unlike that one, this movie is actually okay. It focuses on Wolverine’s connections with Japan, introducing Mariko Yashida (first appearance, Uncanny X-Men # 118, 1979) and several other characters from the comics, including Yukio and Viper.

In this post we’re going to take a look at one of the legal issues, specifically the issue of inheritance, which is actually pretty key to the plot. But we’ll have to do so with a disclaimer: the movie is set in Japan, and neither of us know much if anything about Japanese law, either in general or particularly about estates and inheritance. So we’re forced to analyze it in the context of American law, and we’ll do so in comparison to prevailing opinions, not any particular state’s law.

There are major spoilers inside. Continue reading

Pacific Rim

If you take legendary anime franchise Neon Genesis Evangelion and strip out the pseudo-oedipal pop psychology, crushing angst, fan service, crypto-Judeo-Christian imagery, and enormously surrealistic endings, you can get a pretty good idea of what Pacific Rim is like: ten-story mecha beating up gigantic biological monsters. Good times.

For our purposes, there is a legal issue raised by the movie. We’re going to just sort of hand-wave the Jaeger project as a necessary plot device. But the concept of the “Life Wall,” a massive coastal wall combined with a multi-hundred kilometer safe zone around the Pacific coastline does raise an interesting question about eminent domain and Fifth Amendment takings. Continue reading

The Man of Steel Confesses

I know I said the post on Lois Lane’s employment contract would probably be our last post on Man of Steel, but we got a great question from Neal that I couldn’t resist writing up.  Neal—who is a rabbi in New York—writes:

You may remember that Clark Kent goes into a church and confesses to the priest (let’s assume he’s a Catholic priest, for the sake of argument, though to be clear different religions handle “confession” and counseling relationships differently) that he’s the guy everybody is looking for. Now, in NY, that priest can’t be compelled to testify or reveal information obtained while performing the duties of a clergy- penitent or clergy-congregant relationship (as I broadly understand it) but there ARE mandated reporting laws, e.g. regarding child and elder abuse.

So could the Feds or the state government have compelled the priest to testify given that:

1) An alien might not be presumed to be a member of the church, especially if he just showed up and had no prior relationship to this denomination or its clergy,

and

2) the stakes are just so damn high, like planetary destruction. If there is a mandated reporting law for child abuse- and to be clear I am not 100 percent sure even that overrides the legal protection of the clergy relationship in all instances- wouldn’t it apply on a vastly larger scale with something like this?

These questions raise several issues related to the confessional privilege.

I. The Confessional Privilege in Kansas

At common law there was little or no legal protection for statements made to a member of the clergy in confession or otherwise while seeking religious advice or counsel.  Instead, the privilege is largely derived from statutes.  Generally speaking it is weaker than, for example, the attorney-client privilege, but in some states the confessional privilege can be pretty broad.

I believe that the confessional scene takes place in Smallville, which is located in Kansas.  In Kansas the privilege is defined in the Kansas Rules of Evidence, specifically K.S.A. 60-429(b):

A person, whether or not a party, has a privilege to refuse to disclose, and to prevent a witness from disclosing a communication if he or she claims the privilege and the judge finds that (1) the communication was a penitential communication and (2) the witness is the penitent or the minister, and (3) the claimant is the penitent, or the minister making the claim on behalf of an absent penitent.

So in other words, Clark (if he’s present) or the priest (if Clark is absent) could claim the privilege (become the claimant) in order to prevent the priest from disclosing what Clark told the priest, or in order to prevent Clark from disclosing the same.

Now, there are a lot of specialized terms in that definition, including “penitent” and “penitential communication” (we’ll assume the priest is a regular or duly ordained minister).  Those terms are defined in 60-429(a):

“penitent” means a person who recognizes the existence and the authority of God and who seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging his or her moral obligations, or in obtaining God’s mercy or forgiveness for past culpable conduct

“penitential communication” means any communication between a penitent and a regular or duly ordained minister of religion which the penitent intends shall be kept secret and confidential and which pertains to advice or assistance in determining or discharging the penitent’s moral obligations, or to obtaining God’s mercy or forgiveness for past culpable conduct.

So right off the bat we can see the answer to one of the issues: there’s no requirement that Clark have been a member of the church in question or otherwise have had a pre-existing confessional relationship with the priest.  As long as he “recognizes the existence and the authority of God and … seeks or receives from a regular or duly ordained minister of religion advice or assistance in determining or discharging [his] moral obligations”, that’s sufficient.  And honestly I’m not too sure about the “recognizes the existence and the authority of God” part, but it doesn’t appear to have been put to the First Amendment test, at least in Kansas.

In this case, Clark is at least seeking advice or assistance in determining his moral obligations (i.e. whether to reveal himself as Superman and try to do good in the world with his powers).  And it appears that he intended the communication to be confidential.  He and the priest were alone in the church, and I don’t recall him telling the priest it was okay to tell anyone else.  There was a strong implication that it was a confidential conversation, and that Clark told the priest what he did precisely because he believed it was confidential.

II. Any Exceptions?

The Kansas statute, like many such statutes, does not contain much in the way of exceptions.  It sets a relatively high bar to accessing the privilege in the first place, but once it’s reached, that’s pretty much it.  Many states do provide an exception for child abuse reporting, particularly if members of the clergy are mandatory reporters, but the issue does not appear to have come up in Kansas.  Certainly there is no broad exception for the public good or public safety.  And that makes a certain amount of policy sense.  The confessional privilege would be largely pointless if those confessing the possibility of endangering themselves or others (e.g. by committing a violent crime) were not protected by it.

III. But Wait, What About the Feds?

It’s all well and good that the privilege would apply in state court in Kansas, but what about federal court?  After all, it’s not exactly the local sheriff that’s looking for Clark.  Would the priest still be able to keep quiet if there was some kind of federal proceeding?

Maybe, maybe not.  There is no federal confessional privilege statute.  One was proposed as part of the Federal Rules of Evidence, but it was not approved by Congress.  Over the years a federal common law privilege has developed, and it appears to be recognized in Kansas. U.S. v. Dillard, 2013 WL 875230 (D.Kan. Mar. 7, 2013) (“Plaintiff does not take issue in this case with the general existence of the [confessional] privilege. Neither does this Court.”).

I have yet to see a federal case that describes the contours of the privilege clearly, so I will take this summary from a treatise on the subject:

The communication by a spiritual communicant is privileged if it is made to an ordained or otherwise duly accredited functionary of a religious organization in his capacity as such. … The communication must have been made for the purpose of obtaining spiritual aid or religious or other counsel, advice, solace, absolution, or ministration. It must also have been made in confidence.

Paul F. Rothstein & Susan W. Crump, Federal Testimonial Privileges § 10:3.

In this case, the federal privilege would also appear to apply.

IV. Conclusion

The state law confessional privilege probably applied in this case and there probably wasn’t an exception.  The same is likely true of the federal privilege, bearing in mind that it exists on somewhat shaky ground, having never been formally approved by the Supreme Court or even (as far as I can tell) the 10th Circuit, in which Kansas is located.