Could the Red Skull be Prosecuted for Identity Theft for Stealing Steve Rogers’s Body?

Imagine you’ve been given the ultimate power to shape the universe as you see fit, what would you do? World peace, make yourself a billionaire, gain super powers? The possibilities are endless. In Captain America #115 (from way back in 1969) Cap’s greatest enemy the, Red Skull, had managed to acquire a Cosmic Cube and with it all the power of the universe. So what does he do? Well obviously swaps his mind for Captain America’s. While Skull wanders around in Cap’s red, white, and blues, Cap is sent running for his life from all the people hunting the Red Skull. While Skull/Cap and Falcon manage to defeat the Red Skull and win the day in the end, the question remains if the Red Skull broke any laws. Aside from Cap’s famous star-spangled sock to the jaw, can the legal system do anything to him for essentially stealing Cap’s body?

The obvious place to start looking would be the theft statutes, but those deal with taking property. Considering our history with slavery, courts have been touchy about declaring someone’s body property (although you can apparently paten someone’s genetics, but that’s another post). We do have a class of laws that seem tailor made to this situation, the identity theft statutes. But do they really? Let’s start by taking a look at the Federal Law on ID Theft, 18 USC §1028 Fraud and related activity in connection with identification documents, authentication features, and information.[1]

(a) Whoever, in a circumstance described in subsection (c) of this section—

(1) knowingly and without lawful authority produces an identification document, authentication feature, or a false identification document;

(2) knowingly transfers an identification document, authentication feature, or a false identification document knowing that such document or feature was stolen or produced without lawful authority;

(3) knowingly possesses with intent to use unlawfully or transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor), authentication features, or false identification documents;

(4) knowingly possesses an identification document (other than one issued lawfully for the use of the possessor), authentication feature, or a false identification document, with the intent such document or feature be used to defraud the United States;

(5) knowingly produces, transfers, or possesses a document-making implement or authentication feature with the intent such document-making implement or authentication feature will be used in the production of a false identification document or another document-making implement or authentication feature which will be so used;

(6) knowingly possesses an identification document or authentication feature that is or appears to be an identification document or authentication feature of the United States or a sponsoring entity of an event designated as a special event of national significance which is stolen or produced without lawful authority knowing that such document or feature was stolen or produced without such authority;

(7) knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law; or

(8) knowingly traffics in false or actual authentication features for use in false identification documents, document-making implements, or means of identification;

shall be punished as provided in subsection (b) of this section. [2]

As with all criminal law we first look at the mental state referenced, knowingly. Loosely put, the term knowingly means that one is aware of their actions and the consequences of them. We don’t really need to delve too deeply into the mental states here because it is fairly obvious that the Red Skull intends to switch bodies with Cap, and if the Government can prove intent then they can prove the action was done knowingly. Since Skull has the power of the Cosmic Cube, we can pretty much assume he intends his actions.

Next we see if the Skull’s actions fit any of the 8 prongs of the law, starting with the first one. Knowingly (covered that) and without lawful authority (which we have no reason to assume Skull has) produces an identification document, authentication feature, or false identification document. To figure that one out we need to look deeper in the statute to section (d) for definitions and we find that produces has its usual meaning plus alter, authenticate, or assemble (if you didn’t yell Avengers Assemble, at least in your head you might want to rethink reading this). Each of the other terms deal with documents (see section (d)(1) for the meaning of authentication feature) and since we never see Skull handing over any identification documents or signing Cap’s checkbook we can assume this prong isn’t going to work for prosecuting the Skull. We have the same problems with prong 2. Prong 3 looks promising, we can easily assume that Skull has Cap’s wallet and access to all of his personal documents but we never see him show any intent to use them or transfer them so that doesn’t work.

RedSkull_PII_Id_Theft_005

Therein lies the problem with using this statute to prosecute the Skull for stealing Cap’s body. His intent in doing it is to screw with Cap’s head and not necessarily to use anything we typically associate with identity theft (documents, distinguishing features, etc.) to further his plans. He does impersonate Cap and lie to Rick Jones and Cap’s fans but he could have done the same thing by dressing convincingly as Cap. If he had shown Cap’s ID or used his fingerprints then you may have a shot at a conviction. However, none of that is prominent in the story line and so the Skull can’t be convicted under this statute…..

Now that doesn’t mean he gets away with it (again aside from getting taken down by Cap and Falcon at the end of the story). Since the body swap happens in New York we can look at the NY Penal Code, specifically 190.78 Identity Theft in the Third Degree, it says:

A  person  is  guilty of identity theft in the third degree when he or
she knowingly and with intent to defraud assumes the identity of another
person by presenting himself or herself as  that  other  person,  or  by
acting as that other person or by using personal identifying information
of that other person, and thereby:
  1. obtains  goods,  money, property or services or uses credit in the
name of such other person or causes financial loss to such person or  to
another person or persons; or
  1. commits a class A misdemeanor or higher level crime.
Identity theft in the third degree is a class A misdemeanor.

We’ve already looked at what knowingly means in the federal context and it has the same meaning here. What’s different in the NY code is that includes the language presenting himself, which Skull clearly does, and includes obtaining services. During the time when Skull is masquerading as Cap he’s staying in Cap’s hotel room. Thus obtaining services (the hotel room) by fraudulently presenting himself as Cap. So in a New York state court he could be convicted (assuming that you could prove the whole brain swapping thing). I’d like to think that Jack McCoy would be prosecuting him. ID theft in NY is a class A misdemeanor meaning the Skull would be looking at a maximum sentence of 1 year in jail.

RedSkull_Fraud_Charges_001

But that’s not that satisfying, so let’s think outside the title of this post and look at 18 USC 912: Impersonating an Officer of the United States. “Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money, paper, document, or thing of value, shall be fined under this title or imprisoned not more than three years, or both.” Captain America is a member of the US military, so when the Skull pretends to be him and acts as such, he could be convicted in Federal Court and imprisoned for up to three years. That’s a bit more satisfying, but since we’re in comic books we’ll settle for his impersonating Cap to result in the birth of the Falcon as a hero and the creation of one of the most classic team ups in Marvel history.

*Please note that I am not a member of the New York Bar, this is not legal advice to the Red Skull or anyone else reading this.

[1] Full text of the law can be found here https://www.law.cornell.edu/uscode/text/18/1028

[2] Let’s not worry about this law being passed sometime in the late ’90s and this story being in the late ’60s.

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Jordon is a graduate of the University of Oregon School of Law. He has spent his career practicing criminal defense with Huppert Law Office before moving to the public defender’s office. Jordon was hired to take on the Treatment Court Dockets and also represents the youth in the RAP Court, Juvenile Drug Treatment Court. Jordon has been twice named to the Super Lawyer’s Rising Stars List.

Jordon is also a life long sci-fi and comic book fan, having once told an interviewer that he wanted to be a superhero when he finished law school. His favorite comic book hero is Spider-man and he credits Star Wars with defining large parts of his early life and the Legend of Zelda for giving him the problem solving skills that make him such a good lawyer.