Hansel and Gretel: A Lawyer's Fairy Tale

Hansel-GretelThe fairy tale of Hansel and Gretel is not one that ends with children growing up to be witch hunters, but learning to fight evil with something more powerful than any witchcraft: civil litigation and criminal prosecution.

Hansel and Gretel at its core has more legal issues than candy on a gingerbread house. Let’s follow the legal breadcrumbs.

Counting Pebbles: The Factual Overview

Once upon a time… a father, who was a down on his luck wood cutter, was unable to provide for his children and wife. The step-mother had a creative solution to the family’s financial problems: Leave the Children in the Woods.

“The children must go, we will take them farther into the wood, so that they will not find their way out again; there is no other means of saving ourselves!”

The Step-Mother, Hansel & Gretel

In their quest to be parents of the year, the father gave in to his wife’s demands and left his children in the forest to die, not once, but twice.

GingerbreadhouseThe abandoned children’s situation went from bad to worse with the discovery of a gingerbread house occupied by a witch. After being captured, Hansel was kept in a stable to be fattened up for slaughter, while Gretel was fed only crab-shells and exploited for child labor to help murder her own brother.

Gretel killed the Witch, who was planning to bake Gretel, by trapping the Witch in a very large oven, burning the Witch alive.

The siblings escaped with the Witch’s pearls and precious stones, ultimately finding not only their way home to their father. As an added bonus, Hansel and Gretel’s step-mother had died in their absence.

Possible Civil & Criminal Causes of Action Against the Parents

Virtually every state has laws on parents providing for children. California law requires that “the father and mother of a minor child have an equal responsibility to support their child in the manner suitable to the child’s circumstances.” Cal Fam Code § 3900.

Hansel and Gretel’s parents had a legal obligation to support their children. This would require not just feeding the children, but not willfully leaving them in the woods to fend for themselves. Granted, the step-mother might not have legally adopted Hansel and Gretel, but she would be a legal guardian with the duty to not harm the children.

Snow-Forest2Leaving Hansel and Gretel in the woods overnight with the intent to abandon them would be child endangerment in any state. California defines child endangerment as follows:

(a) Any person who, under circumstances or conditions likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered, shall be punished by imprisonment in a county jail not exceeding one year, or in the state prison for two, four, or six years.

(b) Any person who, under circumstances or conditions other than those likely to produce great bodily harm or death, willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health may be endangered, is guilty of a misdemeanor.

Cal Pen Code § 273a.

A District Attorney could prove beyond a reasonable doubt that leaving Hansel and Gretel in the woods would meet every element of California Penal Code § 273a(a) with the many harms that could have befallen the children and ultimately did with the Witch.

At a minimum, Hansel and Gretel’s father and step-mother failed to provide for their children and willfully endangered them by leaving the children in the woods. There is simply no necessity defense to save oneself by leaving offspring to die in the woods. Moreover, civil causes of action  against the parents would run the gambit from negligence, negligent infliction of emotional distress, intentional infliction of emotional distress, and conspiracy.

Season of the Witch

The old woman had only pretended to be so kind; she was in reality a wicked witch, who lay in wait for children, and had only built the little house of bread in order to entice them there. When a child fell into her power, she killed it, cooked and ate it, and that was a feast day with her.

Hansel & Gretel

A civil litigator would act like a kid who found a candy gingerbread house in bringing a case against The Old Witch. Additionally, a criminal trial would rival that of OJ Simpson, Casey Anthony, and the Lindbergh baby rolled into one on steroids.

Hansel-Gretel-CaptionThe Civil Action

The civil action against the Witch would focus on the following facts:

The Witch Owned a Gingerbread House to Entice Children

The Witch kept Hansel in a stable, well-fed, with the intent of eating him

Gretel was fed only crab-shells

Gretel was forced to work for the Witch

The Witch planned to kill and eat both children

California law does not specifically address cannibalism or attempted cannibalism, however, it is a form of Battery (along with Murder and Desecration of a Corpse if the act is completed). To prove Battery, Hansel and Gretel would have to show that 1) the Witch touched them with the intent to cause harm;  2) that Hansel and Gretel did not consent to the touching; and 3) that Hansel and Gretel were harmed by the Witch’s conduct. 1-13 California Forms of Jury Instruction 1300.

Hansel and Gretel could prove all of the elements for Battery from 1) the Witch captured them; 2) Hansel was forcibly held in a stable; 3) the Witch shook Gretel awake after imprisoning Hansel; and 4) and the Witch’s physical conduct caused harm, not just physical, but likely emotional as well from their imprisonment.

Hansel and Gretel could also prove a claim of Intentional Inflectional of Emotional Distress because of the Witch’s willful conduct. The elements of this claim are:

1. The Witch engaged in a willful violation by kidnapping the children with the intent to eat them;

2. The Plaintiffs suffered serious emotional distress; and

3. The defendant’s willful violation of statutory standards was a cause of the serious
emotional distress.

BAJI 12.80.

The facts to prove the intentional infliction of emotional distress would include the imprisonment in the stable, feeding Gretel crab-shells, various insults and the Witch’s statements on whether Hansel was fat enough to be eaten.

The Criminal Trial

A District Attorney would melt the Witch with a bucket of water for her crimes against the children. The main charges would include Kidnapping, Aggravated Mayhem, Torture, and Attempted Murder.

Green-WitchKidnapping is defined under California law as follows:

(a) Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.

(b) Every person, who for the purpose of committing any act defined in Section 288, hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any child under the age of 14 years to go out of this country, state, or county, or into another part of the same county, is guilty of kidnapping.

(c) Every person who forcibly, or by any other means of instilling fear, takes or holds, detains, or arrests any person, with a design to take the person out of this state, without having established a claim, according to the laws of the United States, or of this state, or who hires, persuades, entices, decoys, or seduces by false promises, misrepresentations, or the like, any person to go out of this state, or to be taken or removed therefrom, for the purpose and with the intent to sell that person into slavery or involuntary servitude, or otherwise to employ that person for his or her own use, or to the use of another, without the free will and consent of that persuaded person, is guilty of kidnapping.

(d) Every person who, being out of this state, abducts or takes by force or fraud any person contrary to the law of the place where that act is committed, and brings, sends, or conveys that person within the limits of this state, and is afterwards found within the limits thereof, is guilty of kidnapping.

(e) For purposes of those types of kidnapping requiring force, the amount of force required to kidnap an unresisting infant or child is the amount of physical force required to take and carry the child away a substantial distance for an illegal purpose or with an illegal intent.

Cal Pen Code § 207.

OldWitchThe Witch purposefully had a gingerbread house with candy to entice unsuspecting to come onto her property to be captured and eaten. This action would fall under subsection (b); holding Hansel in the stable and threatening Gretel would violate subsection (a).

The Witch could also be charged with aggravated mayhem, because of the extreme indifference she showed to the children: Hansel was fattened in a stable to be slaughtered; Gretel was fed only crab-shells and underwent physical and emotional abuse for over a month while in the criminal custody of the Witch.

Aggravated Mayhem is defined as follows:

A person is guilty of aggravated mayhem when he or she unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body. For purposes of this section, it is not necessary to prove an intent to kill. Aggravated mayhem is a felony punishable by imprisonment in the state prison for life with the possibility of parole.

Cal Pen Code § 205.

The State could prove under the facts the Witch’s actions manifested extreme indifference to the physical or psychological well-being of another person and would warrant a guilty verdict.

The same facts that demonstrate Aggravated Mayhem would also support a finding the Witch tortured Hansel and Gretel. Torture is defined as follows:

Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture.

The crime of torture does not require any proof that the victim suffered pain.

Cal Pen Code § 206.

There is no question the Witch planned to murder Hansel and Gretel for food. Thus, this raises the charge of attempted murder.

halloween witch with cauldronTo prove the Witch was guilty of attempted murder, the State would have to prove that 1) the Witch took at least one direct but ineffective step toward killing Hansel and/or Gretel and 2) the Witch intended to kill both Hansel and Gretel. 1-500 CALCRIM 600.

The jury instructions explain a “direct step” as follows:

 A direct step requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder. A direct step is one that goes beyond planning or preparation and shows that a person is putting his or her plan into action. A direct step indicates a definite and unambiguous intent to kill. It is a direct movement toward the commission of the crime after preparations are made. It is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.

1-500 CALCRIM 600.

The Witch had Hansel imprisoned in a stable and fed him with the intent to kill him as a meal. Additionally, the Witch attempted to physically inspect Hansel to see if he was fat enough to be slaughter.

In the case of Gretel, the Witch started the fire in her oven with the intent to bake Gretel alive. All of these actions demonstrated a definite and unambiguous intent to kill, as required by law to prove attempted murder.

Closing Arguments

Hansel and Gretel is about two witches: One witch is a case study in parental gross negligence and malfeasance where a step-mother convinced her husband to leave his children in the woods; the other witch is the traditional version of evil that eats children.

However, no witch is above the law. All of the wrongs inflicted by the parents and the witch would result in civil litigation and criminal prosecution.

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