Mailbag for June 17, 2011

In today’s mailbag we have a follow-up question about the legal ramifications of psychic powers.  We’ve discussed some of these issues already, including hearsay, Fourth, and Fifth Amendment issues; liability for and the unintended consequences of causing amnesia; and more recently liability for causing others to commit crimes.  Astute reader Tim had three questions about some areas that we haven’t addressed yet, or at least not fully.  As always, if you have questions or post suggestions, please send them to james@lawandthemultiverse.com and ryan@lawandthemultiverse.com or leave them in the comments.

I. Surface Thoughts

Tim first asks “Is picking up the ordinary surface thoughts of another person a form of illegal intrusion?”  It’s important to emphasize that we’re talking about a private actor here.  A government psychic would generally need a warrant in order to read even someone’s surface thoughts (i.e. what they are thinking of right then) because if there is anywhere a person has a reasonable expectation of privacy it’s their own thoughts.  But what about a private actor like Professor X?  If X-Men: First Class is anything to go by then he does it all the time to chat up women in bars.  Is he breaking the law or just slightly sketchy?

First, let’s define some terms.  Since by “surface thoughts” we mean what the person is thinking of at the moment, the psychic isn’t causing any changes in the subject’s brain or body by reading those thoughts.  In other words it’s non-invasive.  It’s more like a very precise long-distance EEG.  The best real-world comparisons might be eavesdropping, which is generally legal—if impolite—although the eavesdropper may be breaking the law in other ways, such as trespassing.

Taking our cue from eavesdropping we can turn to the law of privacy, which we’ve talked about before in a four part series.  The best fit seems to be intrusion, discussed in the first part of the series.

Intrusion can be summarized as follows: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff’s solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person.  Moreover, courts have held that the right to privacy includes psychological & emotional solitude and the intrusion can occur in a public place.  See, e.g., Phillips v. Smalley Maintenance Svcs, Inc., 435 So.2d 705, 711 (Ala. 1983) (holding “one’s emotional sanctum is certainly due the same expectations of privacy as one’s physical environment.” and “the ‘wrongful intrusion’ privacy violation can occur in a public place, when the matter intruded upon is of a sufficiently personal nature”).  Finally, most reasonable people would probably consider having their mind read to be a highly offensive intrusion, especially if the thoughts read were personal or private.

II. Deeper Thoughts and Memories

The second question was about deeper thoughts (i.e. actively plumbing the depths of the subject’s mind or forcing them to recall memories).  This is probably just a more intense form of intrusion, particularly in the case of forced recall (i.e. the subject is not just being passively scanned but rather actively experiencing the memories).  That begins to enter the next category.

III. Mind Control and Memory Alteration

Now we shift gears from mere intrusion to outright assault or battery.  Because of the way the brain works, anything a psychic does that actually affects the mind of the subject must necessarily affect the subject’s physical neurons.  That’s definitely the way it works in the DC universe, as well, as Doctor Mid-Nite testified in Manhunter vol. 3.

If the alteration is harmful or even merely offensive then that’s a battery in tort terms because battery only requires an intentional harmful or offensive contact, which does not have to be a literal touching of the defendant’s body to the plaintiff’s.  For example, many jurisdictions have held that intentionally blowing tobacco smoke at a person can be a battery.  See, e.g., Leichtman v. WLW Jacor Communications, Inc., 92 Ohio App.3d 232 (1994).  Even something as incorporeal as a laser is also capable of touching a person.  Adams v. Commonwealth, 534 S.E.2d 347 (Ct. App. Va. 2000) (Adams is a criminal assault and battery case but the principles are applicable to tortious battery).

And speaking of criminal assault and battery, as we discussed in the comments on the amnesia article, these kinds of psychic attacks may qualify.  In the comments we discussed Missouri law, but it is not unique.  In Virginia, for example, “battery is the actual infliction of corporal hurt on another (e.g., the least touching of another’s person), willfully or in anger, whether by the party’s own hand, or by some means set in motion by him.”  Adams, 534 S.E.2d at 350.  Affecting even a single neuron would seem to qualify as “the least touching of another’s person,” and a psychic attack is definitely “some means set in motion by [the psychic].”

These kinds of psychic attacks may also be grounds for a claim of intentional infliction of emotional distress, especially if the forced actions, forcibly recalled memories, or implanted memories are extreme or outrageous.

IV. Conclusion

Psychics should be careful of how they use their powers.  There are many possible defenses, including consent, necessity, and self-defense and defense of others.  But intruding into another person’s private thoughts or reaching out and touching their mind is not something to be undertaken lightly.

That’s all for this week!  Keep your questions coming in!