Supernatural Crimes

[William D Rich]

At 04:41 PM 12/18/97 EST, Jim Maule wrote:
>So you would vote to convict the person who walks around pointing at
>people in the belief that she has spiritual bullets to shoot from her
>fingers?

I have described the rules concerning inherently impossible attempts under
the Model Penal Code and under the Minnesota criminal code, which take
opposite positions on the issue, and I have argued that neither one
violates the Establishment Clause.  I haven't taken a position on whether
inherently impossible attempts ought to be punished.  The would-be killer
by spiritual bullets would be guilty under the Model Penal Code (subject to
mitigation) but not under the Minnesota criminal code.

>Putting aside the potential insanity defense (which might be
>the initial reaction of a lot of folks but which sells short this
>person's right to hold theological beliefs of a stripe far different
>from what is usually encountered), the explanation for her behavior
>(wherever it may be found, and it can't be compelled from her, not
>because of the First Amendment but because of the Fifth) demonstrates
>that even if she did what she intended to do there is no proof that
>it could cause death.

One could as well say that the would-be cyanide poisoner intended to kill
another by causing him to ingest the chemical in the would-be poisoner's
hand, and that it is easily proven that one cannot kill someone by causing
them to ingest (such a small quantity of) that substance, which turned out
to be saccharine.  Much depends on the level of generality at which the
defendant's intent is described.  One could say, as Jim apparently would,
that the Hmong woman intended by her act to invoke God's wrath (or some
such thing) and thereby cause another's death.  Alternatively, one could
say that she intended by her act to cause another's death (by whatever
means).  Attempt liability requires only the latter determination.

That the defendant cannot be compelled to testify about her beliefs (or
anything else) in a criminal trial may make it difficult or, in some cases,
practically impossible to prove her intent, but it doesn't preclude
liability in all cases.

>Example: A hits B on the head with a feather, thinking that A can
>thereby kill B (not necessarily for religious reasons but because A
>is convinced that A has found a way to exist outside of the unified
>field theory of physics that A has discovered). B lives. Again, set
>aside the potential insanity defense issues. Attempted murder? It is
>scientifically demonstrable that one cannot kill another by hitting
>him on the head with a feather, the "eggshell skull" cases of torts
>notwithstanding. Probably guilty of assault. But not attempted
>murder, because what was attempted is something that can be proven to
>be incapable of causing murder. In fact, only if the prosecution
>could show that such an act could be a murder-producing act would
>there be a possibility of attempted murder.

Setting aside the burden of proof question, the would-be killer by
feather-hitting would be guilty under the Model Penal Code but not under
the Minnesota criminal code.

>With prayer, the prosecution cannot prove that it is an act that can
>generate murder. But because it also cannot be demonstrated that
>prayer cannot cause murder, the person who prays with the firm belief
>that it *can* cause murder is guilty of something the feather-mugger
>isn't?

I think this is incorrect.  The existence or non-existence of a
relationship between two physical events (in this instance, the act of
prayer and the death of another person) is susceptible to scientific proof.
 What is not susceptible to scientific proof is whether the relationship or
lack of one is attributable to a supernatural cause, but that doesn't
matter here.

Bill Rich
Univ. of Akron Law School
rich at uakon.edu