Wolverine is one of a number of comic book characters who is extremely difficult to kill. It has been theorized that it would take decapitation followed by immediate removal of his head from the vicinity of his body to effectively kill him. Similarly, though Superman has died, he can survive far, far more punishment than a standard Homo sapiens sapiens.
Which raises the question: if it is impossible for a given action to kill a potential target, does it constitute a crime? And if so, which crime?
I. Mens Rea
The question has to do with the way crimes are defined at law. Crimes are made up of elements, all of which must be present for the crime to have been committed and proven by the prosecution for a defendant to be found guilty. One of the elements of most crimes is an appropriate “mens rea,” i.e. an appropriately guilty mind.* The great American jurist Oliver Wendell Holmes, Jr. is said to have remarked, “Even a dog knows the difference between being tripped over and being kicked.” In short, the law recognizes a distinction between things which are done on purpose and things which are done by accident, and intentional acts are generally treated more seriously.
The Model Penal Code sets up five types of mens rea: purposeful, knowing, reckless, negligent, and strict liability. To be convicted of murder in a state which has adopted some version of the MPC (i.e. virtually any state), one must kill another either purposefully, knowingly, or recklessly. That is to say, one needs to have either 1) actively intended for the person to die, 2) known that a particular course of action was practically certain to lead to a person’s death and engaging in said course of action anyway, or 3) known that there was a substantial risk that a particular course of action will lead to a person’s death and engaging in said course of action anyway. Killing another negligently, i.e. engaging in a course of action which one should have known was likely to lead in the death of another, is only good enough for manslaughter, and killing someone completely innocently isn’t a crime at all. I mean, good luck convincing a jury of that one, but if you do, you walk.
So far we’re basically only talking first year Criminal Law. Where things get interesting is when the intended victim is someone like Wolverine or Superman. Say, for example, Pyro lights Wolverine on fire. Wolverine is going to be pissed, and it’s going to hurt like hell, but he’s going to be okay in a minute. (Superman might not even notice, depending on when and in what continuity said ignition occurs.) If Pyro had targeted a non-mutant (or most mutants other than Wolverine), said target is going to have a pretty unpleasant final few minutes. Pyro is clearly guilty of assault, as he deliberately inflicted harm on Wolverine (though Wolverine’s civil damages are going to be nominal), but not of murder, as Wolverine is still around. The question is whether he can be convicted of attempted murder.
Attempted murder requires that you act intending to kill someone but somehow fail to do it. Knowing or reckless activity will not suffice, because the legal system is only willing to punish inchoate offenses of the most serious sort. On first blush, it would seem that yes, Pyro would be guilty of attempted murder, as he tried to kill Wolverine and failed. But what if this isn’t Pyro’s first rodeo and he knows damn well that burning Wolverine is just going to make him mad? That Pyro can’t actually kill him, or, at least, that lighting him on fire isn’t going to do it? Now the picture gets a little murkier, as it would seem that the requisite mens rea is missing. Again, he’s still obviously guilty of assault, as he did intend to harm Wolverine, but it seems at least questionable as to whether doing something that you want to kill someone but that you know won’t work does not constitute the mental state necessary to ground attempted murder.
II. Factual impossibility with a twist
There is another question here: does the fact Pyro can’t kill Wolverine this way make a difference? In other words, does factual impossibility operate as a defense here? In general, factual impossibility is not a defense to any crime, but these aren’t normal facts.
Consider an analogy: A man is trying to kill his neighbor. So he sneaks into his neighbor’s home after midnight, fires three rounds into the bed, and leaves. It turns out that the neighbor was at his girlfriend’s house and the bed was empty. Clearly, we have no murder charge. But do we have an attempted murder charge? If the man fired the shots believing the neighbor to be in his bed, then the fact that he was not does not change the fact that the man took an action he believed was going to kill his neighbor. This constitutes an intentional attempt to kill another, which is all you need for an attempted murder charge. The intended victim being in actual danger is not, in fact, an element of attempted murder. So whether the neighbor survived because the man was a bad shot and only winged him, or because the neighbor was in a difference house entirely is irrelevant: the man’s guilty mind and actions are enough to convict him.
But if the man saw that his neighbor was gone but shot the bed out of frustration, wishing that he was there so that he would die, this is another matter entirely. Here, the most he can be convicted of is probably some combination of unlawful discharge of a weapon, destruction of property, and burglary. But because he knew that the man would not die, he lacks a guilty mind with respect to attempted murder.
So it would seem that if Pyro attacks Wolverine and is surprised that he survives, an attempted murder charge will stick: the fact that the attack couldn’t have killed him is irrelevant if Pyro believed that it would. But if Pyro attacks Wolverine, intending to kill him but knowing that the attack will not succeed, factual impossibility may actually serve to defeat a charge of attempted murder. Pyro certainly had the intent to kill, but did not commit an act which produced a substantial risk of death and knew this to be the case at the time.
This would seem to be in keeping with the classic case on the subject, State v. Mitchell, 71 S.W. 175 (Mo. 1904), which held “it is no defense that the defendant could not succeed in reaching his goal because of circumstances unknown to him.” The implication is that it would be a defense if the defendant knew he could not succeed. An excellent discussion of intent in criminal law can be found in People v. Joseph, 172 N.Y.S.2d 463 (County Ct. of N.Y., Kings County 1958) (with apologies to those without access to legal research tools; that case is not available freely online).
III. Serious bodily injury
But what about a slightly different case: what if the person truly only intended to hurt Wolverine, not kill him? And what if, knowing that Wolverine is one tough bastard, they used force which would have completely obliterated a normal person? Again, no attempted murder charge, but intent to inflict “serious bodily injury” (defined in federal law at 18 U.S.C. 1365(h)(3)) is something the law recognizes. If we were talking about a normal person, intent to inflict serious bodily injury is good enough to ground a murder charge if the victim does die, because recklessness, i.e. disregard for known risk, will work for murder. So if Pyro lights someone on fire and they die, it doesn’t matter whether or not he actually intended them to die, because he would have completely disregarded an obvious risk that they might. The legal system is pretty comfortable imputing intent to defendants who display extreme disregard for human life.
But intent to inflict “extreme physical pain” coupled with the knowledge that death will not result will not seem to ground an attempted murder charge, which is a specific intent offense. But even if the intent was only to inflict “extreme physical pain,” intent to do that coupled with the knowledge that it will not result in death will still turn the crime from simple assault, which is normally a misdemeanor, into aggravated assault, a felony. This would be true regardless of the intended victim: doing something which is going to cause a lot of pain is a serious crime. Wolverine being Wolverine does, however, mean that you can dish out a lot more pain and still only get stuck with an aggravated assault charge. Which kind of sucks for Wolverine, but hey, nobody said having a mutant healing factor was an unmitigated good. Most people I know would probably be willing to give up potential attempted murder charges against them in exchange for, you know, being invincible.
Superman is an interesting case here. Lighting him on fire may or may not even be possible, but assuming that it even works, it’s an open question as to whether or not he’ll notice. Probably depends on who’s writing the story in question. Attempted aggravated assault is, in fact, a crime, but that one’s going to be difficult to actually get to. If Pyro has run into Superman before–yay, crossovers!–then he knows that Superman isn’t going to die, so we’ve got no attempted murder charge. But he might not know whether Superman is going to feel it. If he knows, then we’ve probably just got a simple assault: Pyro was attempting to do something to Superman, and he did something, but he knew that it was futile. But if this was their first meeting, there doesn’t seem to be any room to argue that Pyro was only trying to burn him a bit, not kill him, Pyro having reason to believe that fire is really, really bad for people. Factual impossibility being no help to defendants not aware of the impossibility, it would seem that we have an attempted murder charge.
Thus, whether an attempted murder charge will stick when the victim is basically indestructible essentially depends on whether the attacker knew beforehand that the target would survive. If they did know, then it’s going to be very difficult if not impossible to convict them of attempted murder. But if they didn’t, then an attempted murder charge should stick, because factual impossibility is no defense for the unwitting defendant.
*There are a few exceptions. Statutory rape, for example, does not require one to know that the person with whom one is having sex is underage. It is a “strict liability” offense, i.e. one for which the commission automatically brings liability, regardless of one’s state of mind. Speeding is similar: one need not have intended to speed to be guilty of doing so, even though one does need to be on notice as to what the speed limit actually is. But as intent is such a basic part of almost every ethical system, strict liability is reserved for offenses society deems to be either so serious as to be worth punishing at any cost, or so minor that the efficiency gain of disregarding intent is worth including some involuntary infractions.