A couple weeks ago, the Skeptic’s Guide to the Universe (the best podcast there is, by the way) covered a horrific story about an Australian couple who tortured a woman after a psychic led them to believe that she was responsible for a theft they had suffered. Their attack on her was really godawful. But then the Rogues got to talking about whether the psychic was herself criminally or civilly liable for her part in the affair, and much of what they said was incorrect.
Tort law and criminal law have some complicated rules to deal with causation. This is because every act has an infinite number of consequences. So you have to find some line where you say that the defendant is responsible for these consequences but not those. So the general rule is that you are responsible—if you do something wrong—not for all the consequences of your actions but for all of the foreseeable consequences of your actions. That’s a lot of stuff, because for a consequence to be “foreseeable” only means that it is a consequence that a reasonable person would have seen as possibly resulting from the act at issue. But if something really freakish happens—so freakish that it would be unfair to hold the defendant responsible for the ultimate result—then we say that that freak incident is a “superseding, intervening cause” that “cuts off the chain of causation.” And a defendant is not liable for the unforeseeable consequences—for things that resulted from unforeseeable intervening incidents.
If I fix someone’s brakes, and do a really crummy job of it—a negligent job of it—then I’m liable if he crashes. But if he gets in an accident because a deer jumps out in front of him and he could not have stopped anyway, even with perfect brakes, then I am not liable. Or if he decides to deliberately run over a pedestrian, I’m not liable to the pedestrian, because my negligence had really nothing to do with that act. If I fix someone’s roof and do a bad job, so it leaks when it rains, I would be liable for rain damage—but not if Hurricane Katrina rips the roof off, because my negligence is totally overwhelmed (or superseded) by the unforeseen storm.
But if something intervenes and is not superseding or is not unforseeable, then it does not cut off liability. So, there’s a 19th century California case in which a guy is shot in the gut in an Old West gunfight, and, knowing he’s almost certain to die, he pulls out a knife and slit his throat. Is his suicide a superseding, intervening cause? The court said no, because it was foreseeable that a person who’s shot in the gut, and is going to die anyway, would likely slit his own throat rather than suffer a slow and miserable death.
In the podcast, Dr. Novella says “you’re still responsible for the things you set in motion, even if they go horribly beyond what you ever conceived,” and that if you commit a crime “you’re responsible for any bad things that happen as a consequence of that crime, even if that was not your intent.” That’s not accurate. If you commit a negligent act or an intentional wrong, you’re responsible for consequences that a reasonable person could have foreseen—but you are not responsible for the consequences of intervening incidents that are unforeseeable. And I think everyone would agree that here, you have a superseding, unforeseeable, intervening cause; these total lunatics, after asking a psychic who had stolen from them, proceeded to capture and horribly torture this woman. That’s not something you would generally anticipate from someone who comes to have his fortune told.
Dr. Novella may have been thinking of the “eggshell-skulled-plaintiff rule” which says that if I intentionally hurt someone, expecting the harm to be minor, and the harm turns out to be much greater, I’m responsible for the greater harm, not only for the minor harm. The rule gets its name from the case in which a guy punches another guy in the head, thinking it’ll inflict only relatively minor damage, but because the victim has an unusually thin skull, he ends up dying. The defendant is liable for the death, not just the punching. But this makes sense, because there is no intervening cause, and because someone who does an intentionally wrong act takes his victim as he finds him.
But in the case with the psychic, the torturers are an intervening cause of the torturing, and their actions are so freakish that the psychic—ironically!—cannot have foreseen them. (Of course, if these people told the psychic that they were planning on catching and torturing the person, you’d have a different story.)
Dr. Novella also repeatedly used the term “depraved indifference”—a term that’s gained a lot of popularity thanks to Law & Order, but your actions have to be extremely bad to qualify for that, and a psychic saying “Someone in your family stole your stuff” certainly doesn’t qualify. A guy who gets mad and decides to run over and kill a bunch of people in Santa Monica—that’s depraved indifference if not outright murder…. Or should have been prosecuted as such, in my opinion.
Finally, what about fraud?* Isn’t a fortune teller—or a faith healer—practicing fraud? Sadly, the answer is yes, but no. While fortune telling is, in fact, fake, the government runs a dangerous game in this area because the Free Exercise and Establishment Clauses forbid the government from taking any official position on the truth or falsehood of any mystical doctrine. That’s why in the famous case of United States v. Ballard, 322 U.S. 78 (1944), the Supreme Court said you can’t prosecute faith healers for mail fraud on the grounds that faith healing is bunk. You can prosecute them on other grounds, but the government cannot take a definitive position on whether faith healing actually works or is real or not. Now, there are limits on this—a parent can be held responsible for refusing to get medical help for a child, for example—but you would have a very hard time prosecuting psychics or faith healers for fraud on the grounds that what they do is flim-flam. The law has no particular fondness for flim-flam, but certain types of flim-flam happen to fall within the coverage of a more important constitutional principle—rats that have sneaked in under the tent, you might say.
But, again, even if the psychic were charged and convicted of fraud, she would almost certainly not be liable for the torture. The fraud is only that she claimed to know who had stolen the stuff, when she did not. She could not have foreseen that the victims of her fraud intended to use the information to torture someone.
*-Better yet, slander? Of course, the fortune teller didn’t identify any specific person, so you couldn’t convict her of slander, either, but you’d have a better chance of it than of fraud. Another reason you’d have a hard time proving fraud is that you’d have to prove that the psychic knows she’s not really a psychic, and many psychics really do think they have magical powers—how are you going to prove she doesn’t have this subjective belief? That’s why you don’t typically see psychics being charged with fraud.
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