Ballard and HeavensGate -Reply

[Jim Maule]

Mark Tushnet <TUSHNET at WPGATE.LAW3.GEORGETOWN.EDU> writes:

> Jim Maule writes:  "homicide is the killing of a human being."
> Could a person who sincerely raises the defense I outlined say,
> "But I didn't *kill* > anyone; I merely assisted them in being
> transferred from one container to another," and thereby raise a
> Ballard issue?  Doesn't the common-sense approach Maule describes
> reject a theological proposition in the way Ballard brings
> into question?

1. Assume such a defense works. It means (1) the termination of all
body functions of a human who believes in the afterlife cannot be
punished as a crime (and perhaps not a cause for civil tort actions)
and (2) the termination of all body functions of a human being who
does not believe in the afterlife by a person who does so believe
cannot be prosecuted because of, presumably if I understand Mark's
point, the lack of mens rea on the part of the actor.

2. So, this conclusion would mean that only the killing of a non-
believer in afterlife of another nobeliever would be prosecutable as
a crime. Ironic, given the roots of the criminalization of murder in
theological foundations (e.g., Ten Commandments).

3. I believe in afterlife (or next life), on a theological and
scientific basis. Does that mean I could never be guilty of murder?
OF course, unlike the cult members, my theology also teaches me that
I am directed to remain here until called home, to do things and be
the person God wants me to do and be.

4. Therefore, is the crime of murder a matter of "ending life" or is
it a matter of "ending life before God wants it ended." The
concept denoted by the latter phrasing may underly justification
(war, selfdefense) to some extent (though there are theological bases
for concluding that those justifications are not valid).

5. Mark's question does get interesting if we could prove that these
individuals succeeded in going to/being taken to the other planet
they described where they were reconstituted in the same or a similar
(improved) body (note, not necessarily human body). Then by
definition are they dead? Maybe not. If they desired to go, the
travel agent isn't guilty of anything. If not, then the crime
and torts would be things like kidnapping, false imprisonment,
assault, etc.

6. Someday, when it becomes possible to transplant brains from one
body to another, we can discuss what that would be in criminal terms.
But that won't happen, if at all, during my lifetime, so I'll let it
slide. For the moment, transplantable organ theft (if you believe the
urban legends about kidney thefts) is a crime but not murder even if
taken from someone (unless, of course, it causes cessation of all
other body function). That is because the organ is separate from the
peron's being; what happens when patterning technology permits a
taking of a person's essence as a person but recreates or transports
it to another container (for an analogy that is not murder, think of
those in the "deep freeze" awaiting awakening when cures for their
disease are found--quite a different approach from HeavensGate).

p.s. I assume everyone has seen the movie StarGate? Hmmm.


Jim Maule
Professor of Law
Villanova University School of Law
Villanova, PA 19085
maule at law.vill.edu
(610) 519 - 7135