In Hawkeye final episode “So This is Christmas,” attorneys had the great evidence gift of a video with individuals making very incriminating statements. Would those admissions be admission in either New York or Federal Court? The answer…is yes.
The former Black Widow Yelena Belova recorded Wilson Fisk (The Kingpin) and Eleanor Bishop discussing past criminal activity. While MCU villains know not to outright say, “I killed Armon for you,” Eleanor stated she “handled Armon like you asked.” This was after Armon had been killed at his home with a sword. Add in Eleanor’s statements that she had “never asked questions” and did what she was told, there are valid concerns she is admitting to crimes. Toss in her statement “[M]y fiancé is taking the fall for Sloan,” and there is a narrative of criminal activity. However, the icing on the cake is her stating, “I have been keeping an insurance policy. Copies of everything.”
All of those statements are hearsay, which is an out of court statement offered for the truth of the matter asserted. See, Federal Rule of Evidence 801(c)(3) and Nucci v. Proper, 95 N.Y.2d 597, 602 [2001]. The issue is, can those statements be party admissions for trial?
New York caselaw states the following on party admissions:
Plainly, defendant’s own statements could be received in evidence as party admissions ( see People v. Chico,90 NY2d 585, 589 [1997]; Reed v. McCord,160 NY 330, 341 [1899] [“admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever or to whomsoever made”]; Prince, Richardson on Evidence § 8-201, at 510 [Farrell 11th ed] [defining an admission as “an act or declaration of a party . . . which constitutes evidence against the party at trial”]).
People v. Caban, 5 N.Y.3d 143, 151 n._ (N.Y. 2005).
New York’s law holds that Eleanor’s statements could be admitted in evidence, because they go to the following material facts: 1) the death of Armon; 2) her fiancé taking the fall for Sloan; and 3) she kept copies of “everything” as an insurance policy. All of these statements have supporting facts. The ugliest is the corpse of Armon. The easiest is the arrest of Eleanor’s fiancé. The trickiest is the “insurance policy” with “copies of everything.” Provided Wilson Fisk is no longer operating out of a penthouse and now the backroom of a restaurant or dry cleaners, it looks like he is hiding from law enforcement after his conviction in Daredevil season 1 and arrest in Daredevil season 3. Fisk is a wanted man for a long list of RICO charges ranging from murder, bombing Hell’s Kitchen, human trafficking, and aggressive urban redevelopment. The “insurance policy” and established list of crimes, all point to the statements being admissible.
Federal law would have the same result as New York. Statements against interested are admissible under Federal Rule of Evidence Rule 804(b)(3)(A) and (B):
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
Federal law also requires that the statements be truth worthy and that “declaration against interest exception is unreliable unless the declarant is aware at the time of making the statement that it is against his interest.” See Donovan v. Crisostomo, 689 F.2d 869 (9th Cir. 1982); Workman v. Cleveland-Cliffs Iron Co., 68 F.R.D. 562 (N.D.Ohio 1975).” Roberts v. City of Troy, 773 F.2d 720, 725 (6th Cir. 1985).
Neither knew Eleanor or Fisk knew they were being recorded. This gives their statements an air of trustworthiness, because they were being very direct in their statements, without crossing into the fanciful “here is my detailed admission for how I killed Armon.” However, no sane person admits to murdering someone (also known as “handling”) or that they had their fiancé get arrested. Those statements are textbook “expose to criminal liability.” A Court could find these statements were trustworthy and that the speakers knew they were subjecting themselves to criminal liability.
Naruto Uzamaki, the titular character in Naruto, has a monster sealed within him through a sealing jutsu. This monster is what the show calls a “tailed beast.” The tailed beasts are considered demons and are referred to by the number of tails they have attached to them. Generally, the higher the number of the tails on the beast, the more powerful they are. Naruto has the Nine-Tailed Fox sealed within him which turned him into something called a “jinchuriki.” Naruto is not the sole bearer of this title as there are eight others that shoulder a similar burden. Although initially unable to control the imbued powers of the beast, Naruto has come to create a symbiotic relationship with the beast in order to defend his home – the Hidden Leaf Village (Leaf Village). However, Naruto didn’t choose to have this burden. He was forced to carry it because of his father – the Leaf Village’s Hokage – Minato Uzamaki.
At the time of Naruto’s birth, the Nine Tailed Fox was attacking the Leaf Village capital and was wreaking untold havoc within its limits. After battling the Nine Tailed Fox, and realizing that the Leaf Village was losing the fight, the Minato was faced with a choice: lose the entire Leaf Village or sacrifice his son by containing the beast within his son thus saving the leaf Village. Naruto’s father and mother agreed to make the sacrifice and sealed the Nine Tailed Fox within their son when he was born. In the immediate moment, this was good for the Leaf Village, but questions remain about this choice. This article will not focus on the ethics behind this choice; rather, it will look into the international status of the Hokage and see if Minato as the Hokage committed international law violations through the sealing of the Nine Tailed Fox within a child.
Child Endangerment
International humanitarian law (IHL) is the law that governs parties in international armed conflicts (IAC), think Russia vs. Ukraine, and non-international armed conflicts (NIAC), think US v. ISIS. IHL was built around IACs and provides more than 600 treaty rules to help protect parties that are participating in them. However, there is far fewer, think around 30 treaty rules designed to help people participating in NIACs. Within IHL and these conflicts, people are then classified based on their form of participation or non-participation in the conflict. These classifications include combatants, non-combatants, and civilians and each classification comes with a test. Why? The tests that determine a person’s “class” helps meet a core principle of IHL: the principle of distinction. Under IHL, distinction between classes helps us determine what protections you are afforded or what activities you are barred from doing.
Generally, combatants, think soldiers, are provided with many protections and are barred from less activities. Non-combatants, think religious or medical personnel, receive a decent amount of protections as well but have fewer activities they can participate in within a conflict. Civilians are enshrined as the most protected class and IHL foot stomps the fact that civilians should be protected at all costs. So much so, the fourth Geneva Convention treaty is dedicated to civilian protections. Even further, IHL has laws that are designed to prevent civilians from participating in conflicts. These laws layout that if civilians participate they don’t get the same protections like combatants and non-combatants do. Why? Because conflict is meant to remain within the realm of combatants and civilians are to be kept outside of it. As IHL protects civilians, it looks prospectively through its laws and treaties protecting an asset for the future: children. This can be seen in the United Nation’s Convention on the Rights of the Child.
Within Naruto, we see that the Hokage is a complex role. Not only does it confer head of state protections, which gives certain protections we’ll discuss in the next section but is also confers combatant status. To be a combatant, an individual must: wear a distinctive symbol, carry arms openly, adhere to IHL, and be a part of a party in the conflict. The Hokage here meets these qualifications. As stated, combatants are afforded a ridiculous amount of protections but not amongst these protections is the ability to experiment with or involve children in conflict. The Hokage did both with his son, Naruto.There are four Geneva Conventions and of the four civilians have one devoted entirely to them. It quite clearly lays out what protections they are afforded and what things they are prohibited from doing. Of note, is something called “Common Article 3” (CA3) which getsits moniker because it is found in each of the four Geneva Conventions. It states without needing to clarify that civilians will not have committed against them violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture. Nor will they have outrages upon personal dignity inflicted upon them.
There is also a separate international treaty for the protection of children. Notably, it highlights that children are not to be used in armed conflicts and that all other international laws apply to them. Here, the Hokage violated the Fourth Geneva Convention and X Treaty through the experimentation of the jutsu on his son. Regardless if he had knowledge that it may have worked in other villages, there are eight others that are like Naruto, the child should never have been a consideration. His son was a civilian which is exempt from any form of experimentation, know that experimentation is totally banned to begin with, so that is a nonstarter. Furthermore, the sons age leaves him completely vulnerable and the Hokage took advantage of the child for the sake of the community writ large. By all accounts, the Hokage has violated jus cogens by experimenting upon his son. Jus cogens are “actions” that the international community universally condemns and provides no treaties to protect individuals who violate these norms. This includes things like: torture, genocide, civilian experimentation, and creating child soldiers. Thus, Minato is an international criminal; however, despite this violation, we run into the issue that is his position -“Hokage.”
Power Behind The Title
Within Naruto the world is divided into individual Village’s that are equivalent to states like the United States or Canada. The Hokage is the Village’s leader which is equivalent to the head of state much like the President or Prime Minister. The Hokage’s role includes daily Village administerial duties and ambassadorial duties within the realm of foreign affairs as they work with other Villages on complicated issues. Because of this equivalency we will start our analysis there with what we consider “head of state” immunity.
“Head of State” immunity is a controversial topic within the international law community. This is because the immunity has the ability to excuse leaders who may have violated international laws. The immunity can be divided into two areas: first, immunity ratione materiae is attached to the functions of the official; and secondly, immunity ratione personae relates to the position of the official. The latter immunity protects high ranking government officials based on actions prior to and during their role in the high level of government. You might be wondering why do we protect people who violated laws? Well, these immunities are in place to ensure that the state is able to operate without disruption or direct interference from foreign states. The latter immunity, ratione personae, which is our focus here is not something that is given to every government official; rather, think of it being reserved for the heads of states and other senior officials near that level. The International Court of Justice in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium)held four factors for when heads of state no longer hold immunity. Of the four, the third is critical and reads: “when the high-ranking State representative does not hold office anymore, other States “may try the former high-ranking officials in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity.” This third factor is not settled law yet but for sake of this argument I treat it as such.
The Hokage gets “head of state” immunity because of the virtue of his position as the leader of the Village. This means that he gets immunity ratione personae for any actions that he takes during his time as Hokage and for actions that may have occurred prior to his ascension to this role. However, this immunity does not exist forever. When the Hokage is done serving, the Hokage becomes vulnerable to an international court’s prosecution, if they have jurisdiction, for actions that he took in a private capacity. It then begs the question. Was the sealing of the nine tailed fox a private or official action and what courts might exist to hold the Hokage accountable?
This could be a private action. The Nine Tailed Fox’s assault was focused only on the Hidden Leaf Village. It did not spillover into another Village nor did foreign actors fight alongside the Nine Tailed Fox. This knocks out the thought that this could be an IAC or a NIAC. It was during the fight that the Hokage chose to seal the Nine Tailed Fox within his own son, Naruto. This is because the Hokage didn’t consult other government officials before doing the sealing jitsu and he was away from the battlefield. Lastly, the Hokage made this choice in agreement with his dying wife to seal the Nine Tailed Fox within his child. If this then qualifies as a private action then there is the possibility that an international court would him accountable because of the actions taken upon a child which is considered a protected class. Even going this far, it wouldn’t be likely because the other central Villages also committed the same actions. Setting this precedent would mean they would be leaving the door wide open to have their leaders targeted and no sane state would want to see that happen. Could it then be an official action?
The sealing of the Nine Tailed Fox is more aligned with an official action. The Nine Tailed Fox was attacking the Hidden Leaf Village and the Hokage had to act to protect the land and people he governed over. Although, the Hokage committed the action within his own family without consultation of other government officials, it was an official action taken within his capacity as the Leaf Village’s Hokage. Because this was taken as an official action it seems that as Hokage he is prevented from criminal prosecution. However, Article 27(1) of the Rome Statute gets rid of the supposed security of immunity rationae personae. This Article basically says regardless of title or position if you committed a violation of international law the Rome Statute can be applied against you. Article 27(1) hasn’t been weaponized yet against heads of state. The second paragraph of the same article then strips away any supposed “immunity” that would prevent the International Criminal Court from bringing the culprit forward. Candidly, it is very difficult nigh near impossible to hold a head of state accountable. I think Article 27(1),(2) hasn’t been successful in use because international courts are wary of it because of the precedent that would be established if they unleashed it. It is like the nuclear option, and we wont see it utilized either in our world nor within the realm of Naruto.
Conclusion
There is no doubt that the Hokage violated IHL when he experimented on his son through the sealing of the Nine Tailed Fox into Naruto. But is the Hokage protected from prosecution from this action based on head of state immunity? Yes and no. Most would be inclined to say yes because the Hokage’s action would fall under official action rather than personal action which would leave vulnerable to accountability. However, the Article 27(1) of the Rome Statute says otherwise. It cuts through this form of immunity and seeks to hold any party accountable for their IHL violations. This means the Hokage could stand trial. The real question at the end of the day though…is any party willing to bring him to court? Likely, no. Why? This is because each Hokage from the other Villages within this world have done the exact same thing as Naruto’s father. If he were to be held accountable, then they would become vulnerable. This is the last thing the Villages want as they are currently rebuilding after the Third Great Ninja War. Therefore, although the Leaf Village’s Hokage should be punished, he will not be for the sake of internal and international stability.
The Galactic Empire is exceedingly good at a few things, from holding the Guinness World Record for using the most black/gray color schemes to allowing the Millennium Falcon to slip through its fingers at only the most opportunemoments. Chief among those “accomplishments” is its constant innovation in the field of brutal torture. From the moment the frightening black interrogation droid and its menacing needle floated into Princess Leia’s cell in A New Hope, it has been clear that torturing prisoners is part of the Galactic Empire’s core means of doing business. From Luke to Han, Hera, Kanan, and even poor Chewbacca, the roster of Imperial torture victims is so deep the best question to ask is what prisoner has the Empire somehow not tortured?
Unfortunately for Dedra, getting accosted outside work by the creepiest man this side of Alderaan doesn’t meet the legal definition of torture.
Andor showcases one of the darkest examples of this ruthless practice in Season 1, Episode 9 (titled “Nobody’s Listening!”), as Bix Caleen, Cassian’s longtime friend and ally, is brought in for questioning on Ferrix. Following the Rebel raid on the Imperial garrison at Aldhani, the Empire tightens its galactic noose in an effort to identify and destroy Rebel networks. Lieutenant Dedra Meero, ever the dutiful fascist, leads the ISB effort to identify the Rebel agent believed responsible for planning the raid—someone they dubs as “Axis” (whom the audience knows to be Luthen Rael, portrayed masterfully by Stellan Skarsgård). Her efforts lead to the capture of Bix and her colleague Salman Paak, who are hauled in for questioning.
Dedra wastes no time in laying out her demands to Bix, seeking information on Axis, Cassian Andor, and every piece of equipment that she’s had a role in stealing or selling. However, it quickly becomes clear that this will not be any normal interview. Dedra reveals that Salman resisted his interrogation and suffered a terrible fate at the hands of the exceedingly creepy Dr. Gorst. With Gorst lurking in the background, Dedra warns Bix that failure to cough up every bit of information would result in Dr. Gorst taking over. The threat of torture couldn’t be clearer if Dedra had “REFUSE AND YOU’RE GETTING TORTURED…BIG TIME” tattooed across her forehead.
Dr. Gorst: Reigning 12-time champion of the Galaxy’s Creepiest Smile competition.
After Bix shows the slightest bit of defiance, Dr. Gorst steps in and lays out one of the most brutal methods of torture ever seen in the galaxy far far away. Using a specialized headset, Bix is subjected to enhanced recordings of children dying en masse. Gorst explains that the recordings came from the Imperial massacre at Dizon Fray, in which the Empire wiped out the moon’s native sentient species after they resisted construction of an Imperial facility. The Empire discovered that recordings of the Dizonites’ screams while dying possessed unique acoustic characteristics that caused devastating psychological impact on anyone listening. Never one to miss a sadistic opportunity, the Empire weaponized the recordings as a novel method of extracting information from prisoners. Bix is strapped to her chair and subjected to the recordings, almost immediately letting out a primal scream that makes Luke’s yell on Cloud City seem like a tiny mouse squeak.
Just in case you thought “maybe the Empire’s not so bad,” Andor is here to fix that with one little headset.
Before Dedra unleashes Dr. Gorst, she makes clear her belief that Salman and Bix are part of a Rebel cell, describing Bix’s connections with Salman, Cassian, and Axis as a “nest of relationships.” Dedra’s mission is to bring the weight of the Empire down on the nascent Rebellion, destroying Axis and his Rebel network before more damage can be done.
The Rebellion’s struggle against the Empire implicates the real-world Law of Armed Conflict (LOAC), also known as International Humanitarian Law (IHL)—the branch of international law that governs how warfare is conducted. IHL is a large web of treaty, domestic, and customary laws that aim to reign in the destructive effects of war and provide critical legal protections that help reduce suffering.
Before diving into the business of torture, it’s important to assess the type of armed conflict occurring in Andor. Real-world armed conflicts are classified as either “international” or “non-international.” The classification depends on the parties involved in the conflict. International armed conflicts (“IACs”) involve two or more nations fighting each other, such as World War II or the current Ukraine conflict. On the other hand, non-international armed conflicts (“NIACs”) involve a nation fighting an organized non-state armed group (e.g. Iraq versus ISIS), or multiple non-state armed groups fighting each other in a country. The law behind how conflicts are classified is best saved for another article, but how a conflict is classified means a great deal. For our purposes, we’ll consider the Rebellion’s fight against the Empire to be what’s known as a “non-international armed conflict.” That classification determines which provisions of IHL are applicable during the fighting.
There is a big difference in legal coverage between the two types of armed conflicts. IACs trigger the full suite of IHL, including more than 600 treaty rules. Contrastingly, NIACs trigger only a portion of IHL, including fewer than 30 treaty rules. This difference in legal coverage is especially pronounced when it comes to protections for those captured on the battlefield. For example, combatants captured during IACs are generally considered to be Prisoners of War (POWs). While “POW” is a commonly used term, it refers to a key legal status that grants a robust set of protections. There is no such thing as POW status during NIACs, which has huge implications for captured fighters.
Nothing brings a smile to Dedra’s face like committing grave breaches of international humanitarian law.
Even though NIACs don’t trigger the full complement of IHL rules, that doesn’t mean there are no protections at all. Both Common Article 3 of the Geneva Conventions (CA 3) and Additional Protocol II to the Geneva Conventions (AP II) provide the bedrock set of rules for NIACs. Those rules include provisions for the protection and humane treatment of prisoners, including addressing torture.
The Rome Statute of the International Criminal Court defines “torture” as:
The intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody of the accused.
In the case of Andor, Dr. Gorst’s method of extracting information from prisoners like Bix and Salman absolutely qualifies as torture. The Empire’s use of the recordings to inflict mental suffering is unquestionably intentional. The Empire is fully aware of the serious mental effects inflicted on those who listen to recordings of dying Dizonites. After discovering three of their own officers huddled in various states of emotional distress after listening to the scream recordings, the Empire elected to weaponize the audio for use against prisoners. They even took the additional astoundingly cruel step of isolating a section of audio featuring dying Dizonite children, which apparently has an even more devastating effect on the listener, in an effort to maximize the psychological damage.
Even though Dr. Gorst doesn’t lay a finger on Bix, his intentional infliction of severe mental torment squarely fits the definition of torture. The law recognizes that physical harm isn’t the only method of inflicting suffering upon a prisoner. Infliction of severe mental distress counts as torture the same as any punch, kick, or other physical abuse. The Empire clearly saw the Dizonite recordings as a way to inflict a tidal wave of mental anguish on prisoners in order to quickly get them to divulge information. Here, Gorst and Dedra went above and beyond in their effort to maximize Bix’s mental distress by telling her the disturbing backstory of the recordings and disclosing the awful effects they’d just had on Salman.
The extreme severity of mental suffering caused by the records is immediately apparent, as Bix is in obvious distress. Within seconds of donning the headset, she is sweating, shaking, and lets out a bone-chilling guttural scream. Dr. Gorst fully understands the effects, requiring her to be strapped down and noting that she might not even have the ability to speak while listening. When we next see Bix, she’s laying in a devastated heap on a mattress in her cell after only a short time listening. Under IHL, there is no requirement that torture last for a certain amount of time to qualify as “severe”—here, the Empire was able to inflict an extremely high degree of distress in a short period.
Although IHL differs in many aspects between IACs and NIACs, torture is treated the same across the board. Torture is flatly outlawed in all circumstances under IHL, regardless of the type of armed conflict. Common Article 3 of the Geneva Conventions bans torture outright, including in NIACs. Similarly, Additional Protocol II, Article 4 enshrines its ban on torture as a “fundamental guarantee” for those detained during NIACs. This flat ban reflects the uniform view of the international community that torture has no place in any type of armed conflict. Torture as a practice represents the exact type of needless suffering that IHL is in place to eliminate.
The ISB goes from zero to brutal torture in record time.
Dedra and her stiff-collared ISB colleagues might argue that Bix’s torture was necessary because of an urgent need to identify Axis and gain information about his Rebel cell. However, IHL bans torture without any exceptions. In other words, there is no legal justification for torture. Period. That includes situations where interrogators have a perceived pressing need for information—a scenario commonly played out in movies and TV against the backdrop of some looming major threat (looking at you, Jack Bauer and 24). Simply put, the law of war roundly rejects torture in all circumstances.
That means there is no excuse for the ISB’s use of torture as an interrogation tactic. Even if Bix held a treasure trove of valuable intel, including Luthen’s exact whereabouts, Mon Mothma’s ATM PIN code, and the whereabouts of Luke Skywalker’s juicy personal diary, that still wouldn’t legally justify her torture. Making things worse, Dedra and the ISB seemingly torture Bix and Salman because they want to, not because they think they must due to some existential threat to the Empire. Both Dedra and Dr. Gorst seemingly take twisted pleasure in subjecting Bix to this awful new torture technique.
Even if an exigent security threat justified torture—which is absolutely does not—there is no such urgency at the time Bix is tortured. The raid on Aldhani was long finished by the time Bix is tortured. As Bix is strapped to her chair, the Empire has no actionable intelligence on any imminent Rebel attacks—even the plot against the Imperial power station at Spellhaus isn’t discovered by the ISB until after her torture, following the unrelated capture of a Rebel pilot.
While Dedra is attempting to gain critical intel—Axis’ identity—she also seems determined to inflict severe suffering as a way of maliciously punishing Bix for daring to defy the Empire. Dedra’s arc over the first nine episodes has showcased the caustic and corrupting effects of power, which is on full display as she briefly questions Bix before turning her over to Dr. Gorst. This is exactly the type of sadistic, pointless infliction of suffering that IHL aims to prevent by outlawing torture.
Ever the ambitious evil Imperial officer, Dedra can therefore add “war criminal” to her ISB resume. While the Empire and ISB play by only the laws that suit their needs, the legal ban on torture under IHL remains an enduring protection for those captured on the battlefield.
In Werewolf by Night, our heroes Elsa Bloodstone and Jack Russell were trapped in the Bloodstone family mausoleum during the hunt of the Man-Thing. In order to escape, Elsa broke open the crypt of her Aunt Francis in order to escape. Were her actions desecration of a corpse and were they legally justified?
Members of the Bloodstone family were buried in a Westminster family crypt, which is a crypt that can house multiple bodies. “Crazy” Aunt Francis was interned in her crypt since her death in 1922. Elsa smashed the front of the crypt in order to remove 1) an arm; 2) a skull; 3) a weapon; and 4) keys, as Aunt Francis believed she would return from the dead.
The law has long recognized that disturbing a dead body as a crime. Multiple California laws protect corpses from the exact actions Elsa took on the corpse of Aunt Francis. Cal. Pen. Code § 594.35 states:
Every person is guilty of a crime and punishable by imprisonment pursuant to subdivision (h) of Section 1170 or by imprisonment in a county jail for not exceeding one year, who maliciously does any of the following:
(a) Destroys, cuts, mutilates, effaces, or otherwise injures, tears down, or removes any tomb, monument, memorial, or marker in a cemetery, or any gate, door, fence, wall, post or railing, or any enclosure for the protection of a cemetery or mortuary or any property in a cemetery or mortuary.
(b) Obliterates any grave, vault, niche, or crypt.
(c) Destroys, cuts, breaks or injures any mortuary building or any building, statuary, or ornamentation within the limits of a cemetery.
(d) Disturbs, obstructs, detains or interferes with any person carrying or accompanying human remains to a cemetery or funeral establishment, or engaged in a funeral service, or an interment.
Elsa’s actions to open her aunt’s crypt in order to gain access to its contents are the type forbidden by § 594.35. However, was her desecration of a corpse legally justified by the necessity defense in order to save the Man-Thing from the hunters trying to kill him?
The necessity defense is a six-part test based on public policy for a greater harm to be stopped by a lesser violation of a law. The factors include:
1. The act charged as criminal must have been done to prevent a significant evil;
2. There must have been no adequate alternative to the commission of the act;
3. The harm caused by the act must not be disproportionate to the harm avoided;
4. The accused must entertain a good-faith belief that his act was necessary to prevent the greater harm;
5. Such belief must be objectively reasonable under all the circumstances; and
6. The accused must not have substantially contributed to the creation of the emergency.
People v. Heath, 207 Cal.App.3d 892, 898 (Cal. Ct. App. 1989), citing People v. Pena, 149 Cal.App.3d at pp. Supp. 25-26, fns. omitted.
Elsa’s action were justified by the necessity of assisting Jack Russell in saving the Man-Thing. First, the act of disturbing Aunt Francis’ grave was done to prevent the significant evil of killing Ted Sallis (Man-Thing); Second, there was no other way out of the mausoleum; Third, the harm of removing items from a crypt was not disproportionate to the harm of Ted Sallis being killed; Fourth, Elsa had a good-faith believe her actions were necessary to prevent the death of Sallis; Fifth, her belief was objectively reasonable under the circumstances of trained monster hunters seeking to kill Sallis; and Sixth, Elsa did not contribute to the emergency of getting locked in the crypt or organizing the hunt.
The one problem for Elsa is she was willingly participating in the hunt, but she abandoned her participation after learning facts from Jack Russell.
Elsa Bloodstone could successfully argue her actions desecrating the century old corpse of her aunt were legally justified under the necessity defense to save the Man-Thing from being hunted to death.
The Disney+ Halloween special Werewolf by Night has the first MCU appearance of the Man-Thing, who was referenced in the Agents of SHIELD episode “Nothing Personal.” In Marvel Comics, the Man-Thing is Dr. Theodore “Ted” Sallis, who was a scientist who tried recreating the Super Soldier serum with the help of a demon. Yes, an actual demon, as opposed to a vulture capital firm. Events turn sideways and Ted ends up as the Man-Thing guarding the Nexus of All-Realities, somewhere in the Everglades of Florida.
In Werewolf by Night, Ted was captured by a cult of monster hunters as part of a ritualistic hunt to select a new leader after the death of Ulysses Bloodstone. The late Ulysses Bloodstone owned the Bloodstone relic, a mystic artifact that was used to hunt “monsters.” The Bloodstone relic was attached to Ted’s back and the hunt was “won” by whoever killed Ted in order to recover the relic and become the new leader of the hunter cult.
As a one swamp based poet once said, it is not easy being green. Dr. Sallis lived this maxim in being captured and hunted by the Bloodstone cult.
Hunting People is Murder
Somethings should not be need to be said, but hunting a human being for sport is murder if you succeed in the hunt, attempted murder if you try to kill the person, and a conspiracy to commit murder if you participate in the hunt with the objective of killing the person.
Murder is defined as the “unlawful killing of a human being, or a fetus, with malice aforethought.” Cal. Pen. Code § 187. First Degree Murder is all murder that is perpetrated with explosive devices, weapons of mass destruction, armor piercing ammunition, lying in wait, or any willful, deliberate, and premeditated killing that includes kidnapping. Cal. Pen. Code § 189. Furthermore, anyone who attempts to commit First Degree Murder, but fails to do so, shall be punished with life imprisonment with the possibility of parole. Cal. Pen. Code § 664(a).
But wait, some will say the Man-Thing is not a human being. Exhibit A to counter this claim is the name given to Ted by a cruel society: MAN-Thing. Not The Thing, because he is not orange; Not Swamp-Thing, because that is a different company. No, Ted is called Man-Thing in a recognition of his humanity.
Hunting Dr. Ted Sallis was done because of his physical condition of being a giant swamp creature whose touch burns those who know fear. These are physical disabilities. While normally in the employment context, the Americans with Disabilities Act (ADA) was enacted because Congress identified a history of irrational employment discrimination where society isolated and segregated individuals with disabilities. Board of Trustees of Univ. of Alabama v Garrett, 531 U.S. 356 (2001), citing 42 U.S.C. 12101(a)(2).
The ADA states that no “entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112. A “Qualified individual” is someone who, with or without reasonable accommodation, “can perform the essential functions of the employment position that such individual holds or desires. ” 42 U.S.C. § 12111(8).
A “disability” is defined as a physical or mental impairment that substantially limits one or more major life activities. 42 U.S.C. § 12102(1)(A). “Major life activities” can include any of the following, but are not an exhaustive list: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. 42 U.S.C. § 12102(2)(A). Major life activities also include bodily functions, such as normal cell growth, neurological, and other bodily functions. 42 U.S.C. § 12102(2)(B).
Ted appears unemployed and homeless. He cannot speak and has difficulty communicating. Moreover, he does not have normal cell growth, as evidenced by the swamp growing from his body and physical contact causes others to burst into flames if they experience fear. “Man-Thing” would be considered disabled under the Americans with Disabilities Act.
Dr. Sallis was targeted by a cult because of his status as a “monster.” He was kidnapped from a swamp and brought to the Bloodstone compound, possibly across state lines, in order to be hunted. The real monsters in this story were those wearing cloaks and masks, not ones covered in moss or fur.
