26.3.4 - Aliens and American Law

Xenology: An Introduction to the Scientific Study of Extraterrestrial Life, Intelligence, and Civilization

First Edition

Robert A. Freitas Jr., Xenology: An Introduction to the Scientific Study of Extraterrestrial Life, Intelligence, and Civilization, First Edition, Xenology Research Institute, Sacramento, CA, 1979; http://www.xenology.info/Xeno.htm

What we want to look at here is exactly how the ET would be treated under American law. That is, assuming the aliens, after contacting us, come here in droves to visit our planet and perhaps even to reside here for various lengths of time. Obviously some laws would have to be passed for the specific purpose of making a disposition of their legal rights in our society. The classification of "extraterrestrial person" may not include all the rights, duties, or implications of the legal "person," "alien," or "citizen" in our system. The ET person will have a unique legal character all its own.

If beings from other worlds come to live among us, then how will they be affected by our criminal laws? Let's consider a specific example. For humans the most serious crime is homicide. Most statutes define the corpus delicti of this offense as having two elements: (1) The killing of a human being, and (2) death ensues as a proximate result of the criminal acts of another human being.

In the case of the extraterrestrial creature, it does not appear that the corpus delicti for criminal homicide can be met. Criminal laws are always strictly construed under American law, especially in felony cases, and in favor of the accused.⁴⁰³ Even if an ET is deemed a legal person, it is not a "human being" any more than are "corporate persons," "municipal persons," counties, estates of dead people, or similar artificial persons. Therefore, if a man kills the alien visitor he is not guilty of murder since no human being has died, as Assistant Attorney General Norbert A. Schlei stated to a radio audience in 1963:

Conversely, if an alien visitor kills a man there is again no murder since death did not occur as a consequence of the acts of another human being. If two ETs kill each other there is again no basis for imposing American homicide laws, unless Congress defines an "extraterrestrial person" to be a "human being" for the purposes of the criminal law.

Similar problems arise in connection with the crime of rape. The common law definition of the offense goes as follows: "The unlawful carnal knowledge of a woman by a man forcibly and against her will." But "woman" is defined as a female member of the human species, "man" as a male of the human species. Hence, since the criminal law is strictly construed, no extraterrestrial nonhuman being can be the perpetrator or the victim of rape. Again, this is true in spite of the classification of the ET as a legal person, since all legal persons are not exactly equivalent to human beings. But even if the female in question does give her consent and no force is used, the human member of the couple is guilty of bestiality or "buggery" (copulation with a nonhuman of the opposite sex) and may be prosecuted under state sodomy statutes -- which usually carry rather extreme penalties.* The ET is this case gets off scot free, since nonhumans cannot presently be guilty of any crime.

A number of new crimes may have to be defined to cover the special case of the extraterrestrial person. First, and perhaps most obvious, would be the crime of xenocide -- the killing of a sentient nonhuman being by any legal person (natural, corporate, or extraterrestrial). Xenocide of the first degree would involve malice aforethought on the part of the perpetrator of the deed; xenocide of the second degree would not.** (The crime of homicide would also have to be upgraded to include killing of human beings by an extraterrestrial person.) If the alien beings have no personalized sentience but each entity is part of a group mind which is deemed, collectively, an extraterrestrial person, then the killing of any individual member of the group mind might be termed semicide. Like mayhem or battery, the criminal activity is directed only to a part of the person's "body."

Lawmakers may wish to invoke legal sanctions against those who engage in interspecies sexual relations. Humans are already covered by sodomy statutes; for the sentient nonhuman the equivalent offense might be called homosexus -- sexual activity of any kind by an ET with a human being. More specific versions of the crime are likely to be legislated -- adulterous homosexus, copulatory homosexus, oral homosexus, and so forth. (Further variations in human/nonhuman sexual relations, complicated by the endless possibilities of exotic alien physiology, are left to the imagination of the reader.) Laws may also be passed to prohibit xenogamy, the unlawful marriage between a human being and a nonhuman sentient creature.*** These rules may be modeled after the old miscegenation statutes which are now obsolete in this country.

Depending on the characteristics and abilities of the ET visitors, a whole set of peculiar crimes might have to be established which have little or no analog in human law. For instance, imagine a race of sentient extraterrestrial amphibians capable of regenerating in a short time various body parts and appendages -- fingers, hands, legs, and so forth. In their society, it might be the custom to nibble part of the bodies of one’s acquaintances to demonstrate affinity, especially when one is hungry. The bigger the bite, the deeper the friendship. Human beings, unable to regenerate lost parts, undoubtedly would want to define this behavior as a crime when practiced on people. Hence we might have a crime called petit cannibalism, the partial consumption of a human being by another sentient being.

Or consider the unusual creatures devised by science fiction writer Robert Sheckley in his short story "The Monsters."³⁵⁶⁶ Among these oviparous intelligent beings, married females lay at least one egg each day, which hatches in a ratio of eight females to one male. Since destroying eggs is a poor genetic strategy, and female infanticide would rob society of its primary workforce (unmarried females), the only way to hold down population is uxoricide. In the story, all wives must be killed after 25 days of marriage. Were such beings to come to Earth and live among us, we too would have an interest in the control of their numbers. This being the case, and respecting their needs as different from our own, we might be willing to pass a law defining vivuxory -- allowing one's wife to live -- applicable to these ETs only.

Countless other unique crimes may readily be imagined. Forcible morphogenesis would involve physically altering another sentient being against its wishes, perhaps using genetically tailored viruses or special "trigger" pheromones. Involuntary vility would be the crime of exposing one’s true alien appearance to the general public, if that appearance is so shockingly and horribly ugly as to cause fainting spells, heart seizures, riots or hysteria among the human onlookers. A crime for telepathic aliens would be telerape, consisting of unlawful empathic mindreading of the mind of one partner of a married human couple, without their consent, while they are having sex.

All charges of criminal conduct are subject to defenses which may be asserted to relieve the accused of liability for his acts. As perhaps might be expected, a variety of unusual defenses may exist in the cases where extraterrestrial beings are involved, such as the ex post facto defense illustrated by Bruller.¹⁵⁵³ However, it should be pointed out at this point that the one defense popularly expected to apply to ETs -- ignorance (or mistake) of the law -- generally is no defense to criminal acts. This is a long-established rule of jurisprudence: Criminal intent requires only a showing that the accused intended to perform the prohibited activity, not that he knew it was illegal.

A traditional defense to crime is lack of capacity. The plea of insanity is the most common variant. Under the majority M’Naghten Rule, criminal acts committed by an alien being could be excused if the ET was "unable to understand the nature of his act" or, if he knew what he was doing, that he "lacked the capacity to distinguish whether his act was right or wrong." Lack of capacity may also be proved by a showing of feeblemindedness, as where the intelligence level of the extraterrestrial actor is significantly below the human norm, for whatever reason, at the time the crime was committed.

Perhaps the most fascinating question in this area is whether or not sociobiology⁵⁶⁵ can be raised as a valid defense in a criminal prosecution. That is, should alien beings be held accountable for biologically predetermined or preconditioned behavioral patterns?

For instance, it would seem that trisexual creatures (having three distinct genders necessary for reproduction) should be excused of the crime of bigamy. Another example: Intelligent beings having a physiology similar to that of the common mole (Antichinus stuarti) might have a brief but concentrated rutting season. Shortly after copulation a sudden surge of hormones kills the male, leaving more resources for the gravid female of the species. Although having sex is tantamount to suicide for the male, his reproductive biology forces him to do it. Should this not be a complete defense to the crime of suicide? And what of a sentient alien race patterned after the Adelie penguins of Antarctica,¹⁰²⁸ who are sociobiologically predisposed to steal? Will this excuse them of the crime of larceny?

It is not entire clear whether courts would accept sociobiology as a full defense to criminal acts. Claims of compulsion and coercion generally are not allowed as defenses if the compulsion derives from some natural (i.e., biological) characteristic. Or, drawing another analogy from the defense of intoxication, chronic alcoholics or narcotics addicts are still responsible for crimes they commit while under the influence, even though addiction is now widely regarded as a medical condition to which some people may be more susceptible than others.

On the other hand, the defense of insanity or feeblemindedness may successfully be raised-when the perpetrator is suffering from an hereditary (genetic) disability. This is, in a sense, a sociobiological defense. Courts have so far rejected insanity pleas-based on the XYY chromosome defect (the extra Y chromosome supposedly causing antisocial behavior). However, there is evidence that the judiciary might be willing to allow this defense if there existed scientific evidence tying the genetic defect into the accepted tests for insanity.

"Your Honor, the defense contends its client could never get a fair trial in this court."

The legal difficulties created by extraterrestrials living on Earth in close proximity to human beings will be pervasive and diverse including major questions in such areas of the law as torts, conflicts of law, evidence, family law, wills, and property law (Figure 26.1). Toni M. Mattis, a California paralegal, suggested a few of the problems that might emerge in the law of contracts. If an alien visitor were approached by a literary agent, asked Mattis, could he enter into a legally binding contract to write his autobiography? The legal issues include:

* As recently as 1953, eight states still provided a maximum penalty of life imprisonment.²⁴⁸⁶

** The crime of homicide would have to be upgraded to include killing of human beings by any legal persons.

*** What would be the legal status of the issue of an ET/human mating, if this were biologically possible, if the family were to remain on Earth?¹⁵²⁸