The Zombie Defence – Why The Undead Can Get Away With Murder In Our Legal System

4 Jun

When people end up in front of a judge, we usually only think there’s two ways they can plead: innocent or guilty. However, while they’re rarely used, there are other options, too. Probably the most interesting of these is what I like to call The Zombie Defence. It’s real legal name is Automatism and it means an act which is done by the body without any control by the conscious mind. There’s two versions of it. The first is insane automatism and is used when someone loses control of their body because of a mental illness. If this is accepted by the courts, they are generally locked away and forced into treatment.

More interestingly, from the zombie point of view, however, is the second, called non-insane automatism. If someone uses this defence, they are claiming their body did something, like kill someone, but while they’re sane, they had no conscious control over their body at the time. Now, you have to admit a body walking around doing things without any conscious control, is pretty close to most people’s definition of a what a zombie is, and it has some pretty interesting implications in terms of how zombies, if they were ever to appear, would be viewed by the courts.

The recognition of automatism by the legal system means that it differentiates between the conscious being and the body which contains it, and it views only the conscious portion as being legally liable for anything it does. In contrast, the non-conscious part gets a free pass. Since zombies are basically humans (either dead or alive depending on your personal preference) without consciousness, it means there’s nothing a zombie can do, up to and including to killing and eating half the neighbourhood in a single sitting, which it would be legally liable for.

If someone enters plea of not guilty due to non-insane automatism, they’re admitting that they did whatever they’ve been accused of, but they’re claiming that they were a mindless, unthinking zombie at the time they did it. And the court accepts this, they will be acquitted of all charges.

So why, you might be thinking, don’t more people use this defence? Well, it’s a very difficult to defence to pull off. This is for a number of reasons. The first of these is that by far the most common reason that someone will enter an automatonic state is because of the excessive consumption of alcohol (drinking a mix of alcohol and caffeine is a particularly common way to induce automatism) or because they’ve taken drugs (like the notorious ‘Bath Salt’ zombie – although, despite the initial reports, it seems that this might not have been drug-induced after all).

From a legal standpoint, if you chose to take the drugs or drink the alcohol then you made a conscious decision to risk entering an automatonic state, and you’re still liable for all that you do while in it. The situation is a bit less clear if you consume the stuff without your knowledge, such as in a spiked drink, and technically you might get away with it, but rarely is this the case because many people who end up in this state had already started drinking or taking drugs of their own free will, and the spiking only increases the amount.

However, not all non-insane automatism is drug or alcohol induced. Sometimes, an automatonic state is caused by a disease (and again we’re shifting towards something which is very close some definitions of what a zombie is). For example, brain tumours can radically change a peson’s behaviour. If it happens to be in the part of the brain which is responsible for impulse control, it can make the person lash out or do things the wouldn’t normally do. The court’s view of this is that if it’s the tumour that makes someone do something, then they shouldn’t be held responsible for the actions of their body (as long as they get treatment to remove the tumour as soon as they know that it’s there – if they do nothing, then they are deciding to remain in that state and then they become legally liable).

So, could automatism be caused by an infectious disease? I think the answer here is definitely yes. In fact, this is just what diseases such as rabies do. If we had a zombie outbreak where the zombies were living people infected by a disease which caused them to attack and kill other people, and we found a way to cure them, under the current laws, they wouldn’t be legally liable for anything they did while they were in their infected state. If this was a widespread event which caused a lot of death and destruction, I think this would cause a huge uproar from those who’d lost friends and family. This is because while most of us like to think the legal system is about justice, when something happens to someone we love, we don’t want justice. Instead, we want revenge. This would create a massive amount of friction between those who’d lost people and those who were infected, and I’d guess we’d see a pretty fast change in the law which would do away with the defence of non-insane automatism, or at least it would be made much harder to use it. In many ways, this was one of the most interesting themes of the BBC TV series In The Flesh, although that involved dead zombies and not living ones infected with a disease.

By this point you might be wondering, does the zombie defence ever work? Well, it’s rare, but every now and then it does. Of these, the most common are in the cases of crimes people commit in their sleep. This is where we venture into the territory of sleep disorders including sleep-walking and night terrors. Usually when we dream, a switch is flipped in our heads which paralyses our bodies. This stops us physically acting out our dreams. However, in some people this switch doesn’t quite work and this means that when they’re dreaming about killing zombies (as we all do from time to time!), they act it out, and if there happens to be another person in the room (such as their partner) they can end up killing them. When this happens, they will wake in the morning and be shocked by what they’ve done. It can be hard to prove in court that this is what actually happen, but it has been done.

So, that’s the zombie defence for you, and you can rest safe in the knowledge that if you become a zombie, you’ll be safe from prosecution, no matter how many people’s brains you eat. However, if you’re reading this article and thinking that it’s a great way to get away with murder, then be warned, you’re very unlikely to get away with it!


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From the author of For Those In Peril On The Sea, a tale of post-apocalyptic survival in a world where zombie-like infected rule the land and all the last few human survivors can do is stay on their boats and try to survive. Now available in print and as a Kindle ebook. Click here or visit www.forthoseinperil.net to find out more. To download a preview of the first three chapters, click here.

To read the Foreword Clarion Review of For Those In Peril On The Sea (where it scored five stars out of five) click here.

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4 Responses to “The Zombie Defence – Why The Undead Can Get Away With Murder In Our Legal System”

  1. Akriti 04/06/2014 at 16:35 #

    excellent post

  2. kaineandrews 05/06/2014 at 08:44 #

    After reading this article, I determined that I need to contemplate how the legal system in my Rotten Apple setting needs to be modified to accommodate the living dead. I am thus amused. 😄

    • cmdrysdale 05/06/2014 at 09:54 #

      Glad this amused!

      I’ve just been checking out your Rotten Apple stuff (if anyone else is interested in doing this too, you can find it here: http://kaineandrews.com/rotten-apple/). Looks like an interesting idea, and I’ll be interested to see how you will deal with the legal side of things.

      Of course, the law differentiates between a living person with no control over what they are doing (as in an infected type zombie) and allows for that, and a risen-from-the-dead type of zombie, which has no legal status what-so-ever (once a person dies their body becomes an object and not a legal entity that can be put on trial).

      The interesting bit here (which I didn’t cover in the main article – mostly because it’s only just occurred to me!) is that you can probably do whatever you want to a risen-from-the-dead zombie (within reason) and not be prosecuted, but if you attack or kill a still-living ‘zombie’, then you could be put on trial for murder, assault etc, especially if it was unprovoked (i.e. you commited a pre-emptive strike to protect yourself before it actually attacked you), and you couldn’t just kill someone because they had an infection and they might attack you in the future. I’m no lawyer, but it makes for some interesting situations for us writers to play around with!

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