Question for the lawyers

[james_davis_nicoll]

A Neanderthal steps through from another history; due to various events he strikes and kills someone here.

Can he be arrested for murder? Does a Neanderthal automatically count as a human in the eyes of the law? If so, how far from homo sapiens sapiens does a hominid have to be before they don't count as a person by default?

Comments

[alexseanchai]

I'm betting not very far at all. Because humans without disabilities who are caretakers of humans with disabilities have a nasty habit of murdering their caretakees and getting off clean.

[elf]

How good is his lawyer?

A good lawyer will get him established as human (because nonhumans that kill people are generally put to death without anything resembling a trial), and a foreigner who doesn't understand local language and customs. Arguing whether he "is" or "is not" human is a matter for lawyers, even though it'd seem like a matter for biologists.

Biologists can prove to the court that he is homo neanderthalensis and not homo sapiens. But that doesn't mean "not human" -- most humans today have some neanderthal DNA. How much is required to be considered "not human" has never been established by law, ergo it breaks down to "lawyers on the two sides trying to persuade the judge that their interpretation is more correct."

If the other side's lawyer doesn't have any great personal stake in getting him established as not-human (e.g. doesn't own a factory with neanderthal workers that he'd love to not pay), the judge will probably look over the evidence and decide, "meh, it talks like a person; it walks like a person; it pets kittens and puppies like a person; it breaks benches when it stubs its toe... it's a person."

At that point, it becomes a matter of "total stranger in a new place broke a law he didn't know existed."

Possibly, the lawyer will argue diminished capacity--he has neither the education nor, possibly, the brainpower to understand the set of laws around him.

[sivi-volk.livejournal.com]

Baraminologists have, some, ah, interesting opinions on this (http://www.talkorigins.org/faqs/homs/compare.html).

[theweaselking.livejournal.com]

Yes, but they're stupid. And since they refuse to admit that said Neandethal exists, despite him standing right there in front of them, they also fail to convict him of murder.

[bruce munro (from livejournal.com)]

Genetics show they successfully interbred, producing fertile offspring, with us: therefore, they count as the same species. How far divergent you can get before the kids are mules is difficult to say - nobody has done, say, the Chimpanzee test yet...

[ethelmay.livejournal.com]

Chimp/human has been tried -- didn't take at all. Don't chimpanzees have a couple more chromosomes than homo sapiens?

[bruce munro (from livejournal.com)]

Of course, this may be genetic essentialism. We do not accord children and the severely mentally handicapped the same rights as adult and undamaged individuals much less genetically divergent than Neandethals, and I suppose that Bob Xyglhm, the three-headed purple standup philosopher from the lesser Magellan cloud could be seen as deserving rights wider than the insane or brain dead.

[sbisson.livejournal.com]

Didn't Robert Sawyer use something similar in a novel?

[james-nicoll.livejournal.com]

He is not a lawyer.

[(Anonymous)]

I suspect that sometime after the Neanderthal enters our history, prior to the killing, there are events would could be construed as being tacit acknowledgements of the fellow's status as a human for legal purposes (events like being greeted by governmental agents, being questioned by the police, etc.).

[fridgepunk.livejournal.com]

Ignoring the obvious "a neanderthal in canada or the US would be an illegal alien and deported", as the neanderthals were mostly found in I believe france, they'd be considered naturalised citizens due to being born in france to parents who were either also considerable as french citizens or to parents without statehood.

And then, if he's got a semi-competent lawyer, he'd plead not guilty on account of mental deficiency or the equivalent.

In short, it'd produce a terrible precedent to set AND THUS the neccesity of going back in time and wiping out all the neanderthals to avoid one of them coming forward and killing a frenchmun and thereby souring all potential human-hominid relations that we might develop via time travel.

the neanderthals were mostly found in I believe france

[james-nicoll.livejournal.com]

In one of those meaningless coincidences, the maximum range of Neanderthals:



is roughly similar to the maximum range of the Celts:

[nancylebov.livejournal.com]

If he isn't a human, then his status is "dangerous animal", which I don't think is an improvement.

[viktor-haag.livejournal.com]

My guess is that if he can act more or less like a person, even a "primitive one", he'll get treated like a person, but one with absolutely no rights whatsoever. Which is actually probably worse than "dangerous animal", because if he's presumed to be at least partially intelligent, then he's presumed to be responsible for his behaviour and heaven help him.

[jhetley.livejournal.com]

The Gnarly Man.

[viktor-haag.livejournal.com]

Enemy combatant wielding dangerous technology ("steps through"? steps through what exactly?), and dealt with as such -- he hasn't entered the boundaries of the nation by any means that we approve of or control, nor can he prove nationality or citizenship with any government we might be disposed to think kindly towards, ergo, he's a dangerous invading enemy.

It isn't the kind thing to do, but it's probably the simplest.

In all practical terms, it probably depends entirely on what precisely are the events and circumstances around the death, and who died.

My guess is he'll get stowed away in some government controlled, probably military, scientific research facility and submitted to all sorts of tests and treated like a lab animal for the rest of his natural life, or shorter.

[bruce munro (from livejournal.com)]

Given US treatment of undeniably human non-nationals, this seems painfully likely. Although I imagine if we are talking about a technologically advanced Neanderthal (the "from another history" part of the original statement seems to indicate a surviving-Neanderthal alternate timeline rather than time travel), keeping him alive to pump him for information becomes rather more important than, say, exploratory surgery.

[ethelmay.livejournal.com]

If this happens in the US, I suspect he (or she, but I guess James said "he") would get killed by police in short order.

[aboutlikepleats.livejournal.com]

Going by recent history, wouldn't that depend on the shade of his skin?

[martianmooncrab.livejournal.com]

depends on how much gold he brought with him, plus celebrity status, if he got a good lawyer, claims of specie-ism, and lets not forget the scientists who are trying to test and dissect at the same time.

[sara-lakali.livejournal.com]

Wasn't this already explored in The Murders in the Rue Morgue? Admittedly, that was an orangutan, but still...

[harvey-rrit.livejournal.com]

The trouble as I see it is that if he's not human and subject to trial, he may be killed with impunity.

I can see him hiding out with PETA.

[ethelmay.livejournal.com]

I cannot see PETA doing anything of so much practical use.

[nelc.livejournal.com]

IANAL, of course, but my take is that he or she can be arrested, if the police officer thinks it expedient. Whether it is strictly legal to do so can be sorted out by the lawyers later, as long as the officers get the immediate situation under control.

If she is later determined not to be a person, then the legality of the arrest is moot; it's not like she'll have any power to pursue a case against the police.

Whether she can be charged with murder, or found guilty of murder is up to the lawyers, since there is no legislation or case law on whether H. neanderthalensis counts as human. A legal case can be made either way, it seems to me.

[kithrup.livejournal.com]

but my take is that he or she can be arrested, if the police officer thinks it expedient

The police officer may call animal control and tell them to handle it.

This is, in many ways, a far more interesting question than one involving extraterrestrials, because it's very clear, right now, that the law (in the US at least) applies to humans%, so the question is whether H. s. neanderthalis is human or not. (E.g., an interesting thing is that, since the law does only apply to humans, Kal-El is exempt from it. He'a also exempt from its protections%%, which of course explains how Lex Luthor can continue to try to kill him and not be spending the entirety of his life in prison for attempted homicide.)

In the current US legal framework, that question would have to be decided by the SCOTUS, which might punt it to the Congress to declare that it's only human if the law explicitly says so.

---
% There are, of course, laws on the books that apply to non-humans, but they are explicitly for animals, and sometimes for specific species.

%% Unless endangered species laws apply. Since they keep changing how many Kryptonians are still alive, that might make a valid defense strategy.

[carloshasanax.livejournal.com]

I don't think the problem is his status as a human -- after all, everyone of Eurasian or Native American ancestry has 3% Neanderthal DNA or so -- but his status as a stateless non-citizen. Does he automatically get a Nansen passport when he crosses through the portal?

[james-angove.livejournal.com]

Can they still issue Nansen passports? The League of Nations is long gone...

For that matter, has something replaced the Nansen Passport? My understanding --admittedly based on nothing at all -- had been that the concept of "stateless person" had been defined out of existence. Which is pretty shitty, now that I think on it.

[nojay.livejournal.com]

It would come down to competency in the end, knowledge of the end result of willful acts such as that striking someone will cause them harm or kill them. Animals like dogs are presumed to be generally incompetent in this regard so a dog that bites people, even under provocation might well be put down for the act not as a judicial punishment but as a precaution. A hominid who killed someone in the modern world would face examination to see if they understood what they did and that the society they were now in disapproved of their actions. We don't treat mentally ill or mentally incompetent people who kill as murderers but we do take care of them after the facts have been established.

Chimps and apes in captivity have killed people. The few cases I recall in recent times where this has happened I believe the animals were not put down for that reason alone; in one case I vaguely recall an old chimp in a scientific study group was put down after killing an attendant but it was already sick to the point of being terminal.

[neowolf2.livejournal.com]

There does seem to be a trend to treat apes differently from other animals.

[neowolf2.livejournal.com]

Was this inspired by the current story arc in Freefall?

[nojay.livejournal.com]

I was wondering that myself. Doctor Bowman is turning out to be somewhat different to what I had expected.

[carbonel]

Vercors (pseud. of Jean Bruller) tackled that issue in You Shall Know Them: the main character has a child with an humanoid of a race that is currently being exploited, then kills the child, in order to force a court case as to whether the that race is legally "human."

[nelc.livejournal.com]

That's rather a brutal way to establish case law. Are we sure the protagonist is human?

[sanskritabelt.livejournal.com]

Just because you're an animal doesn't mean you don't get your day in court http://en.wikipedia.org/wiki/Animal_trial#Historical_animal_trials

" The earliest extant record of an animal trial is the execution of a pig in 1266 at Fontenay-aux-Roses.[1] Such trials remained part of several legal systems until the 18th century. Animal defendants appeared before both church and secular courts, and the offences alleged against them ranged from murder to criminal damage. Human witnesses were often heard and in Ecclesiastical courts they were routinely provided with lawyers (this was not the case in secular courts, but for most of the period concerned, neither were human defendants). If convicted, it was usual for an animal to be executed, or exiled. However, in 1750, a female donkey was acquitted of charges of bestiality due to witnesses to the animal's virtue and good behaviour while her human co-accused were sentence to death."

and also https://archive.org/details/criminalprosecut00evaniala

[connactic.livejournal.com]

You aren't really giving enough information.

If a Neanderthal just walked through a portal and killed someone a few hours later, how would anyone know that he was a Neanderthal? The police would just arrest him and he would be put on trial, and assume that he was some sort of weird mountain/feral man.

If there were some sort of well-known time portal experiment, and everyone knew he was a Neanderthal you still can't say, since we are a common law jurisdiction and there isn't any precedent for something like this.

I think it's more likely that the Neanderthal would be locked up for public safety reasons and that someone would mount a legal effort in order to get him declared human and released (or at least an actual trial).

[nordhus.livejournal.com]

IANAL but I suspect this will be decided less on esoteric arguments about what makes a human and more on whether upon examination the Neanderthal is found mentally competent to stand trial.