The Law and Mutants in the X-Men Universe

The "Bastiongate" Defence, and Telepaths and the Law


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Our gaming group has recently been discussing the legal ramifications of someone performing illegal acts while mind controlled, aka the "Bastiongate" defence ("I couldn't help it, I was mind controlled"), dubbed as such after Oliver Queen, a senator of the US government, claimed a month or so after "Bastiongate" that his embezzlement of government funds was not a voluntary act, but the result of being mind controlled by Bastion. "I have just broken free of his mental coercion now. I certainly would never have voluntarily embezzled funds and put them into an offshore private account of mine. No, I don't know why Bastion would have wanted me to embezzle funds. Who can understand the mind of a madman?" Bastion was a powerful telepath who had been mind controlling and manipulating a number of government officials, and his plans were recently thwarted by the Avengers and the X-Men. Reaction to these claims by the media, government, and general public has been sceptical at best, however, the case is in the process of being heard, and a result has yet to emerge. Oliver Queen is known for his anti-mutant sentiment.

We have also been discussing the legality of reading someone's mind, and under what circumstances (if any) such evidence might be admissible in court. Similarly, in addition to telepaths gaining information in this unorthodox manner, we have been considering what weight evidence might have gained by other paranormal means, such as magic spells, unusually heightened senses, an instinct for detecting lies, electrical senses, etc.

What follows are real excerpts from "Gould's Penal Code handbook of California", which may be of interest to our gaming group and to other gamers trying to work out laws for an unreal world based on real-world laws. They're a little scattered, and I recommend if you're interested you just read all the way through, but here's a brief guide to sections. There is a copy of the current California Penal Code online. BTW- if you're going to try & look up these laws I've quoted below, go by the type of code, and the section number. The chapter numbers and titles as I've laid them out can be kind of misleading and confusing.


Insanity plea- examination by psychiatrists/telepaths Mind control- involuntary servitude
Paranormals as expert witnesses Assault and battery
More on expert witnesses Invasion of Privacy
Intent to commit crime Voice Stress Analyzers and Polygraphs
Diminished capacity, insanity Mind reconstruction- hypnosis
Unconscious commiting of crimes
Burden of proof Masks


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The "Bastiongate Defence" & Mind Control Evidence

Discussion among our gaming group showed a great deal of support for the treatment of defendants claiming mental coercion as being similar to that of people claiming not-guilty by reason of insanity. The relevant penal code excerpts follow, with bold type used by myself to highlight areas I considered of most interest.

"CA Penal Code - Criminal Procedure - Ch4 - Plea
Section 1027- Examination by psychiatrists and licensed psychologists.

(a)When a defendant pleads not guilty by reason of insanity the court must select and appoint two, and may select and appoint three, psychiatrists, or licensed psychologists who have a doctoral degree in psychology and at least five years of postgraduate experience in the diagnosis and treatment of emotional and mental disorders, to examine the defendant and investigate his mental status. It is the duty of the psychiatrists or psychologists so selected and appointed to make the examination and investigation, and to testify, whenever summoned, in any proceeding in which the sanity of the defendant is in question. The psychiatrists or psychologists so appointed by the court shall be allowed, in addition to their actual travelling expenses, such fees as in the discretion of the court seems just and reasonable, having regard to the services rendered by the witnesses. The fees allowed shall be paid by the county where the indictment was found or in which the defendant was held for trial.

(b) Any report on the examination and investigation made pursuant to subdivision "a" shall include but not be limited to, the psychological history of the defendant, the facts surrounding the commisssion of the acts forming the basis for the present charge used by the psychiatrist or psychologist in making his examination of the defendant, and the present psychological or psychiatric symptoms of the defendant, if any.

(c) This section does not presume that a psychiatrist or psychologist can determine wheether a defendant was sane or insane at the time of the alleged offense. This section does not limit a court's discretion to admit or exclude, pursuant to the Evidence Code, psychiatric or psychological evidence about the defendant's state of mind or mental or emotional condition at the time of the alleged offense.

(d) Nothing contained in this section shall be deemed or construed to prevent any party to any criminal action from producing any other expert evidence with respect to the mental status of the defendant; where expert witnesses are called by the district attorney in such action, they shall only be entitled to such witness fees as may be allowed by the court.

(e) Any psychiatrist or psychologist so appointed by the court may be called by either party to the action or by the court itself and when so called shall be subject to all legal objections as to competency and bias and as to qualifications as an expert. When called by the court, or by either party, to the action, the court may examine the psychiatrist, or psychologist as deemed necessary, but either party shall have the same right to object to the questions asked by the court and the evidence adduced as though the psychiatrist or psychologist were a witness for the adverse party. When the psychiatrist or psychologist is called and examined by the court the parties may cross-examine him in the order directed by the court. When called by either party to the action the adverse party may examine him the same as in the case of any other witness caleed by such party."

(Gould's Penal Code Handbook of California, 1995: 319)

Clearly, telepaths could not be used as witnesses to replace psychiatrists or psychologists, but certainly could be called in addition to them as expert witnesses. I would suggest that the psychiatrists' or psychologists' evidence would (at this point in the game world, at least) be given more weight by the court than the telepath's (or similar other witness with paranormal abilities of use in determining evidence of mental coercion). I think ideally, the courts would like to see a telepath with qualifications meeting the criteria in part "a", however, I don't think we have anyone that experienced in our game world.

"CA Evidence Code - Ch3, Art1 - Expert Witnesses Generally
Section 720- Expert Witnesses; qualifications.

(a) A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.

(b) A witness' special knowledge, skill, experience, training, or education may be shown by any otherwise admissible evidence, including his own testimony."

(Gould's Penal Code Handbook of California, 1995: 805)

People with paranormal senses can be seen to be classed as 'expert witnesses' by virtual of having special skills, but may be challenged on them and required to demonstrate such skills before they may give evidence before the court.

"CA Evidence Code- Ch3, Art1 - Expert Witnesses Generally
Section 721- Expert Witnesses; cross-examination.

(a) Subject to subdivision "b", a witness testifying as an expert may be cross-examined to the same extent as any other witness and, in addition, may be fully cross-examined as to (1) his qualifications, (2) the subject to which his expert testimony relates, and (3) the matter upon which his opinion is based and the reasons for his opinion.

(b) If a witness testifying as an expert testifies in the form of an opinion, he may not be cross-examined in regard to the content or tenor of any scientific, technical, or professional text, treatise, journal, or similar publication unless: (1) The witness referred to, considered, or relied upon such publication in arriving at or forming his opinion; or (2) Such publication has been admitted in evidence."

(Gould's Penal Code Handbook of California, 1995: 805)

Paranormal witnesses are thus fair game for being called unqualified, being required to explain precisely how their powers work, and for having their opinions cut to ribbons, to summarize. Interestingly enough, there is no mention of challenging their potential bias on a matter, as there is for psychiatrists (see Penal Code section 1027 (e) above). As I understand it, lawyers are not allowed to quote works saying that psychic powers are fraudulent (for example) though, unless the witnesses themselves mention the work in question, or it's admitted as evidence.

"CA Evidence Code- Ch3, Art2 - Appointment of Expert Witness by Court
Section 730- Appointment of expert witness by court; requirement of license.

When it appears to the court, at any time before or during the trial of an action, that expert evidence is or may be required by the court or by any party to the action, the court on its own motion or on motion of any party may appoint one or more experts to investigate, to render a report as may be ordered by the court, and to testify as an expert at the trial of an action relative to the fact or matter as to which the expert evidence is or may be required. The court may fix the compensation for these services, if any, rendered by any person appointed under this section, in addition to any service as a witness, at the amount as seems reasonable to the court.
Nothing in this section shall be construed to permit a person to perform any act for which a license is required unless the person holds the appropriate license to lawfylly perform that act."

(Gould's Penal Code Handbook of California, 1995: 805-6)

The court (judge, lawyers, defendant) can call paranormal expert witnesses in before, or at any point during a trial, if it thinks they are necessary. Evidence may be in the form of testimony or report and testimony. Expert witnesses may get compensation in addition to that of regular witnesses. Section 722 (not outlined here) notes that the credibility of a witness may be challenged base on the fact that compensation and expenses are being paid. "He's just giving evidence for the $5,000 compensation he's being paid! He's not an expert telepath, just a money-hungry hog, giving evidence at every single "Bastiongate" trial he can!" Well, perhaps they'd phrase it better than that, but you get the idea.

"CA Penal Code - Preliminary Provisions
Section 20- To constitute crime there must be unity of act and intent.

In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence."

"CA Penal Code - Preliminary Provisions
Section 21- Intent; evidence of.

(a) The intent or intention is manifested by the circumstances connected with the offense.

(b) In the guilt phase of a criminal action or a juvenile adjudication hearing, evidence that the accused lacked the capacity or ability to control his conduct for any reason shall not be admissible on the issue of whether the accused actually had any mental state with respect to the commission of any crime. This subdivision is not applicable to Section 26."

(Gould's Penal Code Handbook of California, 1995: 4)

Being mind controlled doesn't mean you couldn't knowingly commit a crime. As Section 25 below outlines, being intoxicated or mentally ill doesn't alone excuse criminal behaviour, though it may be taken into consideration when sentencing is carried out.

"CA Penal Code - Preliminary Provisions
Section 25- Diminished capacity; insanity.

(a) The defense of diminished capacity is hereby abolished. In a criminal action, as well as any juvenile court proceeding, evidence concerning an accused person's intoxication, trauma, mental illness, disease, or defect shall not be admissible to show or negate capacity to form the particular purpose, intent, motive, malice aforethought, knowledge, or other mental state required for the commission of the crime charged.

(b) In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.

(c) Notwithstanding the foregoing, evidence of diminished capacity or of a mental disorder may be considered by the court only at the time of sentencing or other disposition or commitment."

(Gould's Penal Code Handbook of California, 1995: 4)

Being mentally controlled alone doesn't get you off the hook, I think you'd have to prove you really didn't understand both what you were doing, and that what you were doing was wrong, at the time. There's also that suggestion in point "c" that the court would be inclined to go easy on you at the time of sentencing, if all else failed.

"CA Penal Code - Title 1 - Of Persons Liable to Punishment for Crime
Section 26- Criminal capacity

All persons are capable of committing crimes except those belonging to the following classes: One- Children under the age of 14, in the absence of clear proof that at the time of committing the act charged against them, they knew its wrongfulness. Two- Idiots. Three- Persons who committed the act or made the omission charged under an ignorance or mistake of fact, which disproves any criminal intent. Four- Persons who committed the act charged without being conscious thereof. Five- Persons who committed the act or made the omisssion charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence. Six- Persons (unless the crime be punishable with death) who committed the act or made the omission charged under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused."

(Gould's Penal Code Handbook of California, 1995: 4-5)

So, someone who claims mind control wouldn't need to worry about going for a "Not-guilty by reason of insanity" mind-control defence ("Bastiongate Defence") if they can prove either that they were totally not conscious of their actions at the time, or that the mind control process involved threats that left them believing their life would be in danger if they didn't do what they were instructed.

"CA Evidence Code - Article 2 - Burden of Proof on Specific Issues
Section 522- Burden of proof as to insanity.

The party claiming that any person, including himself, is or was insane has the burden of proof on that issue."

(Gould's Penal Code Handbook of California, 1995: 801)

With insanity or "Bastiongate" defences, it's not innocent until proven guilty, you've got the burden of proof on you (or your lawyer).

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Telepathic and similar Paranormal Offences or Evidence

So, what do you charge a mind-controller with? What do you charge telepaths with when they read someone's mind, or blast it with pain? IMHO, the best, most clearly defined existing law to hit telepaths with is for mind-control, interestingly enough.

"CA Penal Code - Ch.7 - Other offenses against public justice
Section 181- Slavery

Every person who holds, or attempts to hold, any person in involuntary servitude, or assumes, or attempts to assume, rights of ownership over any erson, or who sells, or attempts to sell, any person to another, or receives money or anything of value, in consideration of placing any person in the custody, or under the power or control of another, or who buys, or attempts to buy, any person, or pays money, or delivers anything of value, to another, in consideration of having any person placed in his custofy, or under his power or control, or wo knowingly aids or assists in any manner any one thus offending, is punishable by imprisionment in the state prison for two, three or four years."

(Gould's Penal Code Handbook of California, 1995: 27)

Mind-controlling someone to do your bidding might be more easily prosecutable than mind-controlling them to sleep, for example. "Friendship" runes suddenly look a lot less friendly from a legal perspective when defined as "involuntary servitude".

"CA Penal Code - Ch.9 - Assault and battery
Section 240- Assault defined.

An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another."

(Gould's Penal Code Handbook of California, 1995: 48)

Two points here; firstly, telepathic attacks may often not be classed as "violent injuries". Secondly, that if you attack someone with intent to harm, but are not actually capable of hurting them, you're not guilty of assault. Interesting, huh? No doubt there are other things to prosecute people under the second point situation.

"CA Penal Code - Ch.9 - Assault and battery
Section 242- Battery defined.

A battery is any willful and unlawful use of force or violence upon the person of another."

(Gould's Penal Code Handbook of California, 1995: 49)

Penalties for both assault and battery are similar, respectively a $1,000 or $2,000 fine, and/or a county jail term not exceeding six months. Special punishments apply depending on the circumstances. Interestingly, our X-Men might be best classed as EMT (Emergency Medical Technicians) or mobile intensive care paramedics for the purposes of hitting our opposition with the nastiest charges we can. There's special criteria for interfering with medical personnel trying to aid people in an emergency. If the X-Men could get legally defined as "Emergency Rescue Personnel" as well as or instead of one of the above criteria, we'd have more legal clout. Though you do have to prove the defendant should reasonably have known the person was such a type of personnel. I'm still puzzling over the definition of Peace Officers.
I think battery may be more applicable than assault in many cases if you were trying to pick charges to lay against telepaths, but I'm not really sure either charge would stick.

There are really surprisingly few "Invasion of Privacy" laws that you can adapt to prosecuting telepaths. The invasion of privacy laws are for prosecuting people who eavesdrop on conversations, using devices to eavesdrop. There just aren't laws that can bend to include prosecuting people who read an individual person's private thoughts, or locating a person by paranormal means. A civil suit law looked promising, but is restricted to particular groups (such as the State Department of Social Services) who abuse private information. Unless a paranormal person is using a device to intercept communications, is recording private communications by a device (even then its OK if there's a kidnapping, extortion etc. involved), or is capable of intercepting telephone communications (or radio, or similar) by their powers, there don't seem to be any currently applicable laws. Since people were interested, here are the voice stress anaylser and polygraph laws, which may be of interest for providing precedents for having telepaths (or other sensers of truth) interrogate arrested prisoners.

"CA Penal Code - Ch.1.5 - Invasion of Privacy
Section 637.3- Voice prints, voice stress analyzers

(a) No person or entity in this state shall use any system which examines or records in any manner voice prints or other voice stress patterns of another person to determine the truth or falsity of statements made by such other person without his or her express written consent given in advance of the examination or recordation.

(b) This section shall not apply to any peace officer as defined in Section 830, while he is carrying out his official duties.

(c) Any person who has been injured by a violater of this section may bring an action against the violator for his actual damages or one thousand dollars ($1,000), whichever is greater."

(Gould's Penal Code Handbook of California, 1995: 200)

"CA Penal Code - Ch.1.5 - Invasion of Privacy
Section 637.4- Polygraph examination

(a) No state or local governmental agency involved in the invesitgation or prosecution of crimes, or any employee thereof, shall require or request any complaining witness, in a case involving the use of force, violence, duress, menace, or threat of great bocily harm in the commission of any sex offense, to submit to a polygraph examiniation as a prerequisite to filing an accusatory pleading.

(b) Any person who has been injured by a violator of this section may bring an action against the violator for his actual damages or one thousand dollars ($1,000), whichever is greater."

(Gould's Penal Code Handbook of California, 1995: 200)

From these potential precedents, I would recommend firstly that officers cannot force a protesting witness or defendant to undergo telepathic examination, and that obliging witnesses or defendants would need to give express written consent prior to any telepathic or similar examination. And from the section on polygraphs, I think you certainly couldn't force someone to be telepathically examined prior to charging them, in order to gather evidence so you could charge them.

The next section deals with an example of how telepathic evidence might be treated in court, this particular precedent suited for the particular cases where a telepath reconstructs a witness' memories of an event in the wake of a mind-wipe or period of mind-control by a hostile telepath.

"CA Evidence Code - Ch.7 - Hypnosis of Witnesses
Section 795- Hypnosis; admissibility of testimony.

(a) The testimony of a witness is not inadmissible in a criminal proceeding by reason of the fact that the witness has previously undergone hypnosis for the purpose of recalling events which are the subject of the witness' testimony, if all of the following conditions are met:

(1) The testimony is limited to those matters which the witness recalled and related prior to the hypnosis.
(2) The substance of the prehypnotic memory was preserved in written, audiotape, or video tape form prior to the hypnosis.
(3) The hypnosis was conducted in accordance with all of the following procedures:

(A) A written record was made prior to hypnosis documenting the subject's description of the event, and information which was provided to the hypnotist concerning the subject matter of the hypnosis.
(B) The subject gave informed consent to the hypnosis.
(C) The hypnosis session, including the pre- and post-hypnosis interviews, was video tape recorded for subsequent review.
(D) The hypnosis was performed by a licensed medical doctor, psychologist, or licensed clinical social worker experienced in the use of hypnosis or a licensed amrriage, family and child counselor certified in hypnosis by the Board of Behavioural Science Examiners and independent of and not in the presence of law enforcement, the prosecution, or the defense.

(4) Prior to admission of the testimony, the court holds a hearing pursuant to Section 402 of the Evidence Code at which the proponent of the evidence proves by clear and convincing evidence that the hypnosis did not so affect the witness as to render the witness' prehypnosis recollection unreliable or to substantially impair the ability to cross-examine the witness concerning the witness' prehypnosis recollection. At the hearing, each side shall have the right to present expert testimony and to cross-examine witnesses.

(b) Nothing in this section shall be construed to limit the ability of a party to attack the credibility of a witness who has undergone hypnosis, or to limit other legal grounds to admit or exclude the testimony of that witness."

(Gould's Penal Code Handbook of California, 1995: 811)

As you can see, somewhat suspect evidence, as telepathic evidence would undoubtedly be intially regarded as, can still be admissible if proper procedures are followed. That won't stop lawyers denouncing it, of course. The above law would need stretching in point "a-3-D" to include telepaths as reliable hypnotists before telepathic memory reconstruction of witnesses would allow the witnesses to have admissible testimony.

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Other Laws of Interest

"CA Penal Code - Ch.8 - Conspiracy
Section 185- Wearing disguise or mask for evasion.

It shall be unlawful for any person to wear any mask, false whiskers, or any personal disguise (whether complete or partial) for the purpose of: One. Evading or escaping discovery, recognition, or identification in the commission of any public offense. Two. Concealment, flight, or escape, when charged with, arrested for, or convicted of, any public offense. Any person violating any of the provisions of this section shall be deemed guilty of a misdemeanor."

(Gould's Penal Code Handbook of California, 1995: 28)


Gould's Penal Code Handbook of California (1995) Longwood, FL: Gould Publications.

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