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Justice system issues in Superhero games


DasBroot

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I wanted to spin this off into a new thread instead of threadjack the 'in battle' thread.

 

I know we have some lawyers (real lawyers) kicking around the forums - in a world where Cellular Shapeshifting was a possibility, no matter how remotely, how difficult would it be to ever get a conviction on anyone that wasn't immediately apprehended at the scene and placed under 24 hour surveilance for the duration of all legal proceedings?

 

How about mind control?  It's pretty clear (I would think) that the controller should be the one at legal fault for all actions taken by the victim ... but what if they were never really controlled and are just trying to use that they were as a defense? How would they prove they 'were'? How could the prosecutors prove they weren't?

 

How about telepathically gained evidence?  Valid or protected by the right against self-incrimination?

 

How about a person who uses a cosmetic transform or shapechange not to imitate anyone but just to look better / not have to hit the gym?  If they didn't reveal themselves as looking like SLoth from the Goonies beforehand would any relations they enter into be considered rape by deception?

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Well, I am inclined either not to get into legalities or to give the judicial system enough technology to circumvent superpowers. So truth helmets, advanced genetics and other stuff that would make our current system SO much more effective but necessary to deal with a super-powered world. Unless you ignore the difficulties...

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Steve Long (himself a lawyer, of course) wrote a short treatise on "Superhumans and the Law" which appears in Champions Universe, and greatly expanded on the subject in the Stronghold source book. Those books don't specifically cover every circumstance you raise, and of course refer to conditions in the official Champions Universe; but they logically address how the world would deal with the legal problems posed by superhumans, as well as suggesting where realism should give way to fun storytelling. They make a very good start to building your own world's "superlaw."

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Astro City actually had a very good comic on this very topic.

 

A lawyer takes a no-win case to defend a mob criminal from a murder charge.  He pulls out all the stops: what if it was a shape shifter?  What if it was an alien duplicating him?  A clone?  An alternate dimension duplicate?  Illusions?  Mind control?  How can you be sure this man was the one who did the crime?  The lawyer is a good enough guy, and he's being leaned on by the mob to get the guy off, but mostly he's just doing what he thinks is "giving this man the best defense the law allows."

 

Ultimately a super cool looking cop-based vigilante hero called the Blue Knight visits him and tells him not to worry, justice will find the bad guy anyway.  But it was in interesting comic.  The lawyer notes that later the law found answers to all that but it was the first time someone had pulled that defense.

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I wanted to spin this off into a new thread instead of threadjack the 'in battle' thread.

 

I know we have some lawyers (real lawyers) kicking around the forums - in a world where Cellular Shapeshifting was a possibility, no matter how remotely, how difficult would it be to ever get a conviction on anyone that wasn't immediately apprehended at the scene and placed under 24 hour surveilance for the duration of all legal proceedings?

 

How about mind control?  It's pretty clear (I would think) that the controller should be the one at legal fault for all actions taken by the victim ... but what if they were never really controlled and are just trying to use that they were as a defense? How would they prove they 'were'? How could the prosecutors prove they weren't?

 

How about telepathically gained evidence?  Valid or protected by the right against self-incrimination?

 

How about a person who uses a cosmetic transform or shapechange not to imitate anyone but just to look better / not have to hit the gym?  If they didn't reveal themselves as looking like SLoth from the Goonies beforehand would any relations they enter into be considered rape by deception?

I would start with "I Am Not A Lawyer" but I hate the abbreviation IANAL...

 

My players were quite irked when a powered armor villain skirted most of the charges against him by claiming that he wasn't wearing the armor during most of the crimes he was charged with.  No real proof that John Smith was Armored Bad Guy at crime scenes he managed to get away from safely.  And even at the crime where he was caught, all they could really get him on was relatively minor stuff like property damage, since the heroes he attacked refuse to register (see PAB info below) and thus couldn't testify against him in court. 

 

RE: Mind Control, I use Mental Signatures and Mental Traces to prove/disprove things like Mind Control.  Of course, that depends on PRIMUS being able to test someone soon enough after mental powers were used.

 

Evidence gained by telepathy, without a warrant, is just as invalid as evidence gained through illegal search and seizure.

 

How would shapechanging your appearance be any different from someone getting cosmetic surgery, and then having relations with someone?  Could someone having liposuction and a facelift be charged with rape by deception?  I seriously doubt that.

 

On a related note, in my game I've instituted Paranormal Activities Boards based on a rather excellent writeup by Bob Greenwade.  This allows superheroes to testify in court, request warrants, etc.  The current players in my game, except for one, have refused to join the New England PAB, so this does raise serious problems with convicting supervillains unless they're caught red-handed in a crime in front of witnesses and handed over to PRIMUS immediately.

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How would shapechanging your appearance be any different from someone getting cosmetic surgery, and then having relations with someone?  Could someone having liposuction and a facelift be charged with rape by deception?  I seriously doubt that.

 

Generally, I agree. Certainly just making yourself better looking would fall into that category. However, a few things might come up:

 

1) Impersonation. If the shapeshifter actually duplicated the victim's spouse a strong case would exist for rape by deception (and probably other charges relating to identity theft). Even if a relationship had not previously happened I think the principle would hold. ("Wha- where's George Clooney!?!")

 

2) Some places allow for sex or marriage between younger people of the same age (i.e both are 16-17) but where sex between a 16 yo and an adult is statutory rape. If an adult shapeshifted into a 16 y.o. form you could find that statutory rape charges apply.

 

3) Gender swaps. A LOT of people would not be happy to find out the hot chick they'd just slept with was actually Mister Flexible. (More power to those who'd chill and explore their new options). Definitely worth talking to a lawyer about.

 

4) Species swaps. MANY people would have issues finding out that the hot stud who rocked their world last night was a slimy, tentacled blob from Tau Ceti (again, more power to those... etc). Though it worked out okay in Galaxy Quest, I guess.

 

(Mister Flexible is now definitely appearing in my campaign :))

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As to impersonation, the OP specifically stated "a person who uses a cosmetic transform or shapechange not to imitate anyone but just to look better", so that is what I was specifically responding to.  If all they're doing is improving their looks, that's really no different than cosmetic surgery.

 

To your other points:

 

 

 

If an adult shapeshifted into a 16 y.o. form you could find that statutory rape charges apply.

 

I doubt that.  How do you define how young or old someone looks?  That's a very subjective thing.  Let's turn it around -- if an adult had sex with a 15 y.o. who looks over 18, would he/she be safe from statutory rape charges?  I don't think so. 

 

 

 

A LOT of people would not be happy to find out the hot chick they'd just slept with was actually Mister Flexible.

 

True dat.  Though "unhappy" and "legally actionable" may not be the same thing.  Take it out of superpowers and into the real world.  If someone has a sex change operation, are they required to tell all potential sexual partners this fact beforehand? 

 

And Mister Flexible might make a guest appearance in my campaign as well.  :)

 

 

 

MANY people would have issues finding out that the hot stud who rocked their world last night was a slimy, tentacled blob from Tau Ceti.

 

Here, someone might make a case on public health grounds.  Does inter-species sex put one or both partners at risk health-wise? 

 

Don't get me wrong, I get where you're coming from in all this.  It's a case of reducing an unknowing partner's ability to fully consent, based on mis-representation.  But let's take another real-world example - let's say a guy meets a girl in a bar and tells her he's a high-priced attorney, they go back to her place, and then later she learns that he bags groceries at the Piggly-Wiggly.  Sure, it's a lying douchebag thing to do, but does that take it into illegal territory?  I'm not sure, but I'm inclined to say no.

 

As a GM, I could see many ways to use all of this in a Champions campaign.  I'd never pull something like Mister Flexible passing himself off as a woman on a male player character -- if I was a player, I'd be supremely pissed if a GM pulled a bait-and-switch like that on me.  Though it would be interesting to explore the issue in-game with, say, the PC seeing a "hot chick" with some guy at a bar, and then watching said "girl" head towards the restrooms and shapechange back to a guy before going into the men's bathroom.  Maybe it's completely consensual -- the non-powered guy may know it's actually Mister Flexible, and this is a game they play.  (But just watch the players over-react!)  Or maybe it's not, and the player has to decide how to handle it.  I'd keep it legally murky in-game, personally, just to hear the players' thoughts and arguments and actions. 

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I wanted to spin this off into a new thread instead of threadjack the 'in battle' thread.

 

I know we have some lawyers (real lawyers) kicking around the forums - in a world where Cellular Shapeshifting was a possibility, no matter how remotely, how difficult would it be to ever get a conviction on anyone that wasn't immediately apprehended at the scene and placed under 24 hour surveilance for the duration of all legal proceedings?

 

How about mind control?  It's pretty clear (I would think) that the controller should be the one at legal fault for all actions taken by the victim ... but what if they were never really controlled and are just trying to use that they were as a defense? How would they prove they 'were'? How could the prosecutors prove they weren't?

 

How about telepathically gained evidence?  Valid or protected by the right against self-incrimination?

 

How about a person who uses a cosmetic transform or shapechange not to imitate anyone but just to look better / not have to hit the gym?  If they didn't reveal themselves as looking like SLoth from the Goonies beforehand would any relations they enter into be considered rape by deception?

 

Lot of good questions here.  I don't have the answers to all of them, but I'll chime in with my thoughts.

 

--As far as shapeshifting goes, I don't know that it would be that difficult to get convictions most of the time.  There are actual examples of "lookalike" cases today, where somebody is arrested for a crime, and it turns out some other person just happens to look exactly like them.  I remember a few years ago some teenage girl who was an honor student spent 6 months in jail, waiting for trial on a robbery.  Video evidence looked conclusive that she did it.  If the actual robber hadn't decided to go commit more crimes exactly like the first one, the innocent girl would probably have been convicted.  As it was, police were like "oops, sorry" and released her.  Things like this happen on occasion, but it's infrequent enough that people normally don't give the possibility any weight unless there's evidence that it happened in this particular case.

 

--Mind control is going to be something similar, in that people won't believe you unless there's something showing you were mind controlled in this circumstance.  Committing a crime requires two elements -- the actus reus (criminal act) and the mens rea (criminal mind/criminal intent).  If I'm walking down the street and I trip over something and fall, bumping into someone and shoving them out into the street in front of a bus, I've got the criminal act (shoving someone in front of a bus), but no criminal intent -- it was an accident, and I wasn't acting in any sort of inherently dangerous way that can substitute for the criminal intent (like drunk driving -- the criminal intent is in getting behind the wheel, not in running over the person you hit).  So being a victim of mind control would be a defense to a criminal action, but you would likely have to provide some evidence supporting it in order to raise that defense.  It would probably be what is called an "affirmative defense", evidence that the defendant can present during a trial that if true, would be a legal defense.  Normally the defendant has to present enough evidence to raise this issue to argue it to a jury, and then once raised it becomes the prosecution's burden to prove untrue beyond a reasonable doubt.  So as an example, self defense.  I'm charged with murder, I can't argue self defense to the jury unless I can present some sort of evidence that will back that up.  That may be the defendant taking the stand and testifying.  Once I've presented enough evidence so I can argue it, now it becomes the prosecution's responsibility to disprove my self defense claim.  I think mind control would probably be the same situation.

 

--Telepathically gained evidence would almost certainly be excluded under the 5th amendment.  However, that's going to depend on exactly how telepathy works and how the case law develops.  Suppose you have a "passive" telepath, somebody sitting in their car minding their own business.  And suddenly they hear the equivalent of telepathic shouting.  They "hear" the defendant's mind screaming "I'm gonna murder that son of a bitch!" or something similar.  I could see the possibility that a court would allow that evidence in.  They aren't intentionally prying into someone's thoughts, after all.  They just happened to "overhear" what the defendant was "shouting".  It would be very controversial, but as the saying goes, bad cases make bad law.  If the key piece of evidence leading to the arrest of some serial killer is that Joe the police telepath just happened to innocently overhear his thoughts about where he buried the bodies, a lot of courts will bend over backwards to not let the serial killer go.  And so Joe the police telepath is now going to have every incentive to lie about exactly how his powers work, because he doesn't want to describe them as "reading someone's thoughts".  He wants to describe them as "receiving his mental projections" or something.  Lots of possibilities for good argument there.

 

--You'd need a specific statute to make shapechanging into a hot person equal rape.  Courts aren't going to want to accept that idea.  If shapechanging into an attractive person is rape, what about a wonderbra?  Isn't that what makeup does for women?  People lie about how much money they have all the time.  Unless the person shapechanges into your wife or husband, I don't see the court touching that.  And even then, how do you prove that this person is the shapechanger?  This is similar to the first question, except now the accusation is that a shapechanger was the culprit.  If I'm the defense attorney, I'm arguing that my client is just a regular old ugly dude.  If some shapeshifter pretended to be her husband, and fooled her once, how do we know he didn't fool her a second time when he pretended to be my client?

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I've actually had the telepathy one come up because psychic powers are relatively common in my campaign setting - even the police use psychics (but not invasively - Mental Awareness to see if a suspect is under the influence of a mental power, breaking the hold of a hostile power on targets, providing mental defense to their non-psychic officers, mind blast to subdue suspects, mind scan to locate missing children, telepathy only at the communication level to warn people to get out of the building, etc).

 

My 'legal' rules for their use (the ones that I bothered defining) are as follows:

 

- Telepathically gained evidence cannot substitute a confession and is not directly admissible.

- However, if a Samaritan (what legalised supers are called in my setting) happened to mention that the murder weapon was buried in a dumpster on 43rd street the police might not question how he came across that knowledge and file it under / argue 'inevitable discovery'.  I'm certain the defense attorney might have some things to say about it.

- Be that as it may *any* non-consensual telepathy deeper than communication is an Invasion of Privacy so said Samaritan better be careful about how they present this knowledge.  Communication level telepathy is mostly handled like normal speech - but due to the inability of the target to leave the conversation easily 'Harassment' and 'stalking' has a much lower threshold in the eyes of the law.

- Like lie detectors a defendant can choose to have their mind read and have their lawyer try and get it admitted (off the record, however, the police might start considering other suspects if you're innocent)

- A person controlling a mind is responsible for all actions taken by their victim, and open themselves up to a slew of human trafficking and slavery charges depending on what they have them do.

 

Basically psychic evidence is an of itself is inadmissible but the evidence it might lead to is (you might not be able to establish an alibi but you know you didn't do it, they scan your mind and know you didn't do it, and are more inclined to look for evidence that establishes you were not at the scene of the crime based on what they learned).  I don't know how realistic that is.

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OK Here's how I understand it; naturally this will vary from place to place.

 

Cops cannot use evidence that was obtained illegally or improperly (or in a way that corrupts the evidence) but they can use the information they get from it to find other courses of action to take.  For example, if someone breaks into a house and finds kiddy porn all over, cops can't then arrest the person on kiddy porn charges.  However, they can go from an "anonymous tip" and begin to investigate said person to find legal evidence to get into their house and arrest them.  Or they can watch the person and bust them for something else and then stage from that to the real target.

 

Police use traffic laws to deal with bad actors they are aware of but can't do anything about directly.  You can't cross town without breaking some traffic law, there are too many and too specific.  if one tire touches that center line: ticketable.  But cops will generally let that slide, because their main goal is safety and stability of the community, not the letter of the law.  They use that fact to pull over the person they are dang sure has a body in the trunk, but cannot actually just pull over to see.

 

HOWEVER: A good lawyer will attack your "anonymous tip" and try to find the real reason you went after this person and if it turns out it was based on criminal or improper gathering of evidence, then you may lose the entire case.  So its not safe or best to do so.

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I doubt that.  How do you define how young or old someone looks?  That's a very subjective thing.  Let's turn it around -- if an adult had sex with a 15 y.o. who looks over 18, would he/she be safe from statutory rape charges?  I don't think so. 

 

Actually, they probably would be charged. I know locally (Tasmania) there was a child prostitution case a few years back where that defence was tried and failed miserably. But circumstances are important - if the 15 yo was (illegally) in a cocktail bar and using fake ID the defendant would have a strong case.

 

The thing about statutory rape is that it usually applies based on factual age, and regardless of consent. A 25 year old who sleeps with a willing 17 year old can be charged, regardless of how youthful he appears, even if he disclosed his age to the teenager (assuming these ages match up with the local laws, of course). Often it's not the younger partner that brings charges, but their guardian or the state.

 

Also note my scenario requires that there's some waiver on statutory rape when the people involved are both underage themselves. That isn't a universal (we've got something like it here, but it's just a valid defense for older teens, not an immunity from being charged).

 

What I was getting at was that a shapeshifter (or disguise master) might pose as a 17 year old to get around that law, or the scrutiny of the parents. But if discovered I can certainly see an angry guardian calling the cops and laying charges.

 

@Das Broot:

 

In relation to the "Anonymous Tip" angle, it should be fairly watertight as long as it came in through established channels like a "Crimestoppers" reporting line and was definitely NOT set up by the cops. So a cape who found a suspected murder weapon could report it, just as any private citizen could (and should leave it untouched). However a gun in a dumpster near a crime scene is pretty cut and dried - the cops don't need a warrant to gather THAT evidence.

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Actually, they probably would be charged. I know locally (Tasmania) there was a child prostitution case a few years back where that defence was tried and failed miserably. But circumstances are important - if the 15 yo was (illegally) in a cocktail bar and using fake ID the defendant would have a strong case.'

 

As mature as girls look these days it would be an easy defense to attempt.  A bunch of pictures of girls: ask the expert how old they are, one after another.  Some older that look young, some younger that look old.

 

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As mature as girls look these days it would be an easy defense to attempt.  A bunch of pictures of girls: ask the expert how old they are, one after another.  Some older that look young, some younger that look old.

 

 

Mm. My example was for when the age of the minor was NOT in question, but the age of the adult, who was deliberately misrepresenting themselves in order to sleep with the minor. Law aside, a parent who was happy to see their 17 yo fool around with her high school sweetheart ("As long as you take precautions, dear") might not be as happy to find out that it was our old pal Mister Flexible!

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The laws in statutory rape cases do not require knowledge of the girl's actual age.  A buddy of mine handled a case where the defendant was a bartender.  The "victim" was a 15 year old girl who was quite, umm, well-developed.  She gave the bartender a fake ID saying she was 21.  When asked by the police why she had lied about her age, she said "because if I didn't, he wouldn't have (made love to)ed me!"  It still took a lot of negotiation with the DA to keep that guy from being a convicted felon and sex offender.  Guy still did 6 months in the county jail.  People who become sex crimes prosecutors don't choose that path because they are easygoing and understanding.  Too often they're hardcore Lawful Stupid.

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  • 2 weeks later...

I wanted to spin this off into a new thread instead of threadjack the 'in battle' thread.

 

I know we have some lawyers (real lawyers) kicking around the forums - in a world where Cellular Shapeshifting was a possibility, no matter how remotely, how difficult would it be to ever get a conviction on anyone that wasn't immediately apprehended at the scene and placed under 24 hour surveilance for the duration of all legal proceedings?

 

 

Not that hard.  Here's the thing.  There's a distinction between "beyond a reasonable doubt" and "beyond any doubt".  For example it's always possible that the police and forensic people in any given real world case are lying liars who lie.  But unless you can provide some indication that the ones associated with this case are actually liars your defense will usually be shown the door.  Even in Baltimore.  Mr or Ms. A. Chaser Esq. can only bring up "My client was impersonated by a shapeshifter" under the roughly same circumstances where it could bring up "My client has been mistaken for an unknown sibling".  He needs to present evidence suggesting that his client was in two places at the same time.  Or that someone saw him or someone else in the vicinity turning into a bird and flying away.  

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Not that hard.  Here's the thing.  There's a distinction between "beyond a reasonable doubt" and "beyond any doubt".  For example it's always possible that the police and forensic people in any given real world case are lying liars who lie.  But unless you can provide some indication that the ones associated with this case are actually liars your defense will usually be shown the door.  Even in Baltimore.  Mr or Ms. A. Chaser Esq. can only bring up "My client was impersonated by a shapeshifter" under the roughly same circumstances where it could bring up "My client has been mistaken for an unknown sibling".  He needs to present evidence suggesting that his client was in two places at the same time.  Or that someone saw him or someone else in the vicinity turning into a bird and flying away.  

 

See, now I want to make a super villain for my game called "Alibi" - for the right price he/she/it will be sure to be seen somewhere else while you commit a crime.

 

Or for a higher price maybe they'll make sure that they're one of the jurors the day of deliberation...

 

Maybe that's how the villains keep getting set free. :) 

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1.  Cellular Shapeshifting -- a tough cookie.  At first blush, particularly if cellular shapeshifting is rare, it would likely be treated like the early days of DNA testing.  It would likely fall under the inverse of the better 9 guilty go free than one innocent be incarcerated falsely, which is, sometimes that innocent person is just gonna get screwed.  That's why it's "reasonable doubt" and not "absolute certainty."

 

In short, cellular shapeshifting would most likely be used as an attempt to impeach witness identification testimony.  But good luck with that.

 

2.  Mind control-- is pretty easy.  Most crimes require a mens rea, or broadly put "criminal intent" a person who was mind controlled lacks that criminal intent and therefore cannot be guilty of any crime requiring such (which is almost all of them, except for a few financial crimes and other artefacts of bygone eras).  In practice, it would like have to be asserted as an affirmative defense with the defendant carrying the burden of production to invoke the defense (then it depends on jurisdiction whether or not the State or the Defendant has the burden of persuasion, currently the several States vary quite a bit.  For reference see Self Defense).

 

3.  Telepathically gained evidence -- Absolutely inadmissible by any current standard.  I cannot imagine a circumstance under which a non-voluntary telepathic intrusion would be considered anything other than an unlawful search.  But then again the Bill of Rights isn't what it used to be.  Any "hard evidence" gained by following leads from an unlawful telepathic "search" would be excluded under the fruit of the poisonous tree doctrine.  

 

4.  Cosmetic shapeshift -- does not equal rape or even come close to it.  Presuming the actor was not impersonating someone there is no legal difference I can see between Cosmetic shapeshift and wearing cosmetics or designer clothes.  For rape to occur you have to vitiate the consent of one of the parties.  There are several ways to do that:  force/threat of force, intoxication, lack of ability to give consent in the first instance (for example those under the age of consent), etc.  There have been attempts to prosecute people for various crimes when they engage in sexual contact knowing for example that they are HIV positive and failing to inform their partners, but I honestly don't remember if those cases ever came to anything.

 

I am aware of no case of "rape by deception."  

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