Kilgrave, AKA The Purple Man, has the ability to make people do his bidding, whether it is preparing him dinner or killing someone. In AKA Jessica Jones, Kilgrave used his power from everything for financial gain to playing hyper-creepy sugar daddy with any woman who caught his eye.

Hope Shlottman was Kilgrave’s collegiate victim who was kidnapped for a month as his personal plaything, enduring everything from emotional torture to rape. Hope was programmed by Kilgrave to execute her parents after Jessica Jones rescued Hope in the first episode. After shooting her parents in an elevator, Hope only said, “Smile.”

A defense attorney could argue that Hope was not guilty by reason of insanity. However, this is highly problematic, because there are not recognized cases for “mind control” or “brainwashing.”

The Insanity Defense in New York is an affirmative defense where a defendant had a mental disease or defect that prohibited them from either 1) understand the nature and consequences of their criminal conduct; or 2) understanding that such conduct was wrong. NY CLS Penal § 40.15.

Hope clearly was not in control of herself when she committed the double murder of her parents. Unfortunately, cases with “mind control” or “brainwashing” are not helpful in forming an insanity defense.

In one case, a Hare Krishna religious group could not be prosecuted for unlawfully imprisoning two members through “brainwashing,” “mind control,” or “manipulation of mental processes,” because there was no evidence of “fraud, deception, intimidation or restraint, physical or otherwise.” People v Murphy, 98 Misc. 2d 235, 413 N.Y.S.2d 540 (N.Y. Sup. Ct. 1977). Furthermore, just because a religion is unconventional, does not mean that “a strict regimen, meditation, chanting, self-denial and the communication of other religious teachings cannot be construed as criminal in nature and serve as the basis for a criminal indictment nor is the concept of “mind control” or “brainwashing” a crime in and of itself.” Id.

The Murphy court went on to state:

The concept of mind control or brainwashing is not a crime in and of itself. The fact that indoctrination and constant chanting may be used as a defense mechanism to ward off what another person is saying or doing is devastating and it is equally devastating when used as a technique for brainwashing or mind control. It may even destroy healthy brain cells. It may also cause an inability to think, to be reasonable or logical. However, this does not constitute a crime. Neither brainwashing nor mind control per se is a crime. It cannot be used as the basis for making out the elements of the crimes charged herein.

Murphy, at *243.

Given what has happened since 1977 with cults and international terrorism, not everyone will agree with the Murphy court. As seen in People v. Vieira, a Court prohibited expert testimony during the guilt phase from a cult expert that the defendant was unable to form the required mental state for murder due to the “influence of mind control techniques.” People v. Vieira (2005) 35 Cal.4th 264, 265.

“Brainwashing” also appears as serious allegations between parents in child custody cases. Often in these cases, one parent accuses the other of “brainwashing” a child against the aggrieved parent. See generally, R.L. v J.L. (Sup.Ct.) 2012 NY Slip Op 50447(U); Thomas S. v. Robin Y. (App.Div. 1994) 209 A.D.2d 298, 314; Lazar v. Lazar (App.Div. 1967) 28 A.D.2d 991.

The most on point case for Hope is from a petition for a writ of habeas corpus by the murderer of Senator Robert F. Kennedy. The petitioner argued that there was evidence of “hypnotic programming.” The Court summarized the argument and analysis as follows:

Furthermore, petitioner’s own recitation of the events leading up to the murder are vague and fail to demonstrate that he actually was the victim of hypno-programming by some unnamed person or entity. Petitioner’s recently recalled memories about the bartender, the woman in the polka dot dress pinching him, and entering “range mode,” are far from compelling evidence of his innocence. Petitioner’s recitation of the events of the night he shot Senator Kennedy amount to self-serving recollections that, even if believed, do no more than suggest a sinister plot and a possibly exculpatory theory — namely, that petitioner was under a hypnotic trance and did not intentionally shoot Senator Kennedy. Whether or not the theory that a person can be hypnotized to commit murder and then to lose his memory of committing that murder is scientifically credible, and the Court assumes that it is solely for purposes of this analysis, petitioner has not provided any reliable evidence that this actually occurred. Evidence of a mysterious woman in a polka dot dress, petitioner’s “feeling” that he might have had a relationship with the bartender who used non-verbal signals such as nodding his head and making eye contact, petitioner’s feeling “tired” after drinking alcohol, his following a woman whom he found attractive into the pantry, the “pinch,” and his subsequent drawing out the gun and shooting during his “flashback” to the shooting range are “facts” that could fit the mind control theory. Then again, they are fuzzy recollections of portions of a night more than forty years ago that contradict petitioner’s prior, more contemporaneous statements.

Sirhan v. Brazelton (C.D.Cal. 2013) 76 F. Supp. 3d 1073, 1123-1124.

Hope’s attorneys would need to offer evidence that she was under a form of “hypnotic programming” by Kilgrave to effectively prove she did not understand the nature and consequences of her criminal conduct. There actually is hope that the Defense could be successful with this argument, because Hope spent a month with Kilgrave doing out-of-character actions. These actions include the sudden alienation with her parents, dropping out of school, moving out of her apartment, and spending all of her time with a man at least 20 years older than her. Moreover, a jury would take find it odd that a student athlete with good grades turned into a homicidal “sugar baby” overnight.

The night Jessica Jones liberated Hope from a high-class hotel, Hope had been left to lie in her own waste for hours in bed. Furthermore, upon being moved from the bed, Hope fought to return to the bed, where she had been told to wait for a specific amount of time. Jones’ testimony, coupled with a psychologist, could show Hope was not suffering from Stockholm Syndrome or acting under her own will.

These facts demonstrate a change in Hope that was not consistent with her character. While it might not be direct evidence of hypnotic programing to commit murder, it could be enough to create reasonable doubt with a jury that Hope was not in control of her actions. Moreover, in a world with alien invasions, killer robots, and flying aircraft carriers, convincing a jury of someone with a super power to control others would not be an impossible challenge. Difficult and risky, but not impossible.

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Josh Gilliland
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg for 2013 to 2016, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.

3 COMMENTS

  1. I think this kind of defense hinges on the difference between the Purple Man as written in the comics and as written in Jessica Jones. In the comics Killgrave’s power is basically a psychic power. Even in a world of alien invasions and extraterrestrial gods proving psychic influence is likely to be problematic. On Netflix though Killgrave’s influence is the result of a biological infection. A biological vector that his father actually can effect using standard biochemical techniques (even if his attempts to develop an antiviral agent were unsuccessful.) This means that with the proper scientific support it should be possible to scientifically prove the virus exists and that exposure results in the inability to resist Killgrave’s orders.
    Of course it might take a scientist on the order of Tony Stark or Hank Pym to carry out the appropriate work to document the existence of such a biological agent. I suspect the old S.H.I.E.L.D. could have done it too (though all of their best scientist seem to have been HYDRA, these a worrisome thought.)