Criminal Law, Robot Rights, Law&Tech, Cybernetics
Note: As the author is training in England, the specific offences and cases being discussed are those relevant to English and Welsh law. Although the fundamental theories and principles being referred to have force across jurisdictions, the law elsewhere may vary. Nor is this article to be taken as valid legal advice. Those seeking legal counsel on the matter should seek out a qualified legal professional.
Cybernetics is associated with the realm of science fiction. Strictly speaking, that may no longer be the case. I have already discussed how cybernetics may be the path to immortality. Using technology to increase our lifespans indefinitely is still however a long time off. Never have I claimed to be trained to undertake scientific research. Just because the theory may stand up, it doesn’t mean that the development is within arms reach yet. Even without concerning itself with the untested extremes, courts still need to prepare themselves for the change to medical science. Already, silicone implants have been used to ‘cure’ brain damage in some patients, replacing the damaged tissue with a non-biological alternative. Pacemakers have long been a part of the doctors' toolbox, but artificial hearts already can act as a stop-gap until a suitable transplant can be found. Will it really be that long until transplants are unneeded altogether? That’s without considering the big application for cybernetics. Exoskeletons exist which allow those with certain types of spinal injury to walk again. Prosthetics are becoming more advanced. Is it possible that permanent integration is on the horizon?
I’ll leave the science to the experts. Their job is to make the stuff that will revolutionise lives for the better. The job of lawyers is to make the rules governing that stuff so society can keep up.
Why then is it a question whether damage to cyborgs is criminal damage or a non-fatal offence, an offence against the person? Well, the law treats the two very differently. When I stab you in the arm because you annoy me, that’s a non-fatal offence. My stab wound injuries you, but nobody dies. When I stab your phone, rendering it inoperable because you annoy me. That’s criminal damage. Your property is injured by my actions, but nobody gets hurt. So far, the law is pretty straightforward. Where someone dies, homicide law comes in, but as that raises a whole other kettle of fish, I won’t be discussing that in this article. Maybe I’ll come to that some other time. But what if you have a cybernetic arm and I stab you because you annoy me? Now the waters become a bit murky. The arm is clearly your property, so criminal damages could apply, however, there is an argument that because the arm is attached to your body that a non-fatal offence should apply. Nor is it enough that I shall be punished irrelevant of what crime I’m charged with. Lawyer’s hate that sort of reasoning, and in the current case there are three good reasons for dismissing the argument.
Firstly, fair labelling requires the wrong being punished by adequately communicated to the defendant. Saying that someone has damaged property conveys an utterly different wrong to saying that they have injured another person. In the former case, the law is protecting a person’s proprietary interests, the right to do as one pleases with their goods. By damaging/destroying property, this right is tampered with, reducing the options of the owner to use, sell or otherwise deal with the arm. Communicating that a person has been injured concerns bodily autonomy. The law recognises an almost absolute right to enjoy one's own body as inherent to being a person. Unlike goods, English law does not recognise the sale of blood, organs or human beings, as one’s bodily interests are non-transferable. Suicide was illegal until 1961 for similar reasons. Unlike property rights, one cannot sign away their interests in their own living body. Considered with those justifications, non-fatal offences may thus be viewed as more morally culpable.
Secondly, the victim has an interest in seeing the harm done to them being punished. Telling victims that they have been subject to property damage is different from telling them they were subject to a non-fatal offence for reasons very similar to the fair labelling point. Given the close connection one has to prosthetics, one may feel that damage to an attached limb is an assault on themselves. The attack is more personal than that on other tools, even those we have intense emotional connections to (for example, phones). Telling a victim that the charge is criminal damage, thus may fail to assure them that the wrong suffered is being treated seriously enough.
Thirdly, the different offences have different sentencing guidelines and maximums. If stabbing a prosthetic arm is treated as a non-fatal offence, it stands to reason that the damage would be either Assault Occasioning Actual Bodily Harm (S47 Offences Against the Person Act 1861) or Inflicting Grievous Bodily Harm (S20 Offences Against the Person Act 1861), depending on the severity of the injury. Both carry a maximum custodial sentence of five years, although sentencing guidelines generally restrict S47 to a lower time period. Should the crime be criminal damage (S1 Criminal Damages Act 1971), then the maximum sentence depends on the value of the goods damaged. For goods worth under £5,000, the maximum is only six months, much lower than the maximum available for S47 or S20. Goods worth more than £5,000 carry a maximum of up to ten years, a much higher maximum. Ordinary prosthetics are expensive, let alone cybernetics, so it is safe to assume our cyborg is covered by the latter category. Making the problem even more complicated is the fact criminal damage which recklessly or intentionally endangers life is an aggravated offence, carrying a maximum life sentence. Severing a cyborg's connection to one of their implants might induce severe shock, endangering the cyborg’s life. In terms of prosecution, it thus might actually be more advantageous for the charge to be criminal damage, directly conflicting with the second justification.
Now we’ve established that the distinction is actually essential, we can now go on and decide which charge is more appropriate for damage to our cyborg friend. Probably the best place to start is by looking at the law governing damage to prosthetic limbs. Although not an exact analogy, given cyborgs and some of their enhancements would be inseparable, looking at the law on the matter may offer some guidance on which way the hammer will fall. Thankfully, Bennett has already begun summarising the law on this matter, meaning that I haven’t had to approach it from ground zero. Even still, giving a brief overview of the cases supporting either position is necessary to explain my view on where the dice will fall.
US law provides the clearest guidance on the matter, specifically through considering the Arizonan decision in State v Schaffer (2002). Although not concerning harm/damage caused TO a prosthetic, it does address damage cause BY a prosthetic. Basically, the defendant had hit a security guard with their prosthetic limb during an altercation. However, they were convicted of committing assault with an offensive weapon rather than an offence against the person. As a result, the defendant faced a higher sentence. When considering the issue, the Court of Appeal rejected the argument that the prosthetic was, in fact, the defendant’s arm. Instead, it amounted to ”a device designed to be used as a substitute for a missing body part’. In other words, the prosthetic was treated as property. Given criminal law treats the concept of ‘body’ consistently across offences, it seems like the case is definitive in deciding that cyborgs can be damaged but not injured.
However, common-law jurisprudence is by no means conclusive on the matter. Take DPP v Smith (2006). Anyone who’s ever studied criminal law knows the case is fundamental to the modern concept of ‘bodily harm’. In that case, the court decided that cutting off a substantial amount of hair was sufficient for the purpose of establishing Actual Bodily Harm. Notice that the lack of pain was irrelevant in this case. Equally, hair grows back over time, suggesting that the ability to repair the damage is also irrelevant in the final assessment. In particular, Sir Igor's observation that "an individual's hair is relevant to his or her autonomy," opens the door to a broader interpretation of what we mean by 'body'. Prosthetics are equally, if not more so, relevant to a person's autonomy. If the focus is indeed on autonomy, rather than a literal approach to the matter, this would be more in line with the offence's justification. (here)
Out of the two, Schaffer is the authority courts are more likely to apply (ignoring the doctrine of precedent) for the simple fact that DPP v Smith can easily be distinguished from. Hair is a biological byproduct of human life. Conversely, any cybernetic components have to be installed and maintained. Further reference to Igor's judgement indicates this lack of biological connection is conclusive in preventing cyborgs being covered by offences to the person. Specifically, the following passage may prove decisive. "Even if, medically and scientifically speaking, the hair above the surface of the scalp is no more than dead tissue, it remains part of the body and is attached to it." Thus, the fact the hair was organic remained relevant. The tissue was dead; however, this is very different from not being tissue at all.
From my brief analysis of the cases, it is clear which way I think the case law points. Currently, cyborgs cannot be injured. If their mechanical bodies are damaged, they can only claim under property offences, rather than for the damage to their person per se. Whether the case law is correct at a moral level is an entirely different matter. Indeed, it seems to treat those with prosthetics and other body modifications as second class citizens. The fact an arm or leg is made of carbon rather than skin and bone doesn’t seem to justify a claim being treated differently. Attacking the doctrine’s normative underpinnings will have to wait for another time.