Reposted from Wired.com
This article was written by the psychiatrists of Broadcast Thought—H. Eric Bender, M.D., Praveen R. Kambam, M.D., and Vasilis K. Pozios, M.D.—and the attorneys of Law and the Multiverse, James E. Daily and Ryan M. Davidson, who recently collaborated on a panel at WonderCon entitled “Not Guilty by Reason of Zombification? Law and Forensic Psychiatry After the Zombie Apocalypse.” As lawyers and psychiatrists, they address the legal and medical questions raised by the many extreme situations in The Walking Dead TV show.
Spoilers follow for Season 3, including the finale.
The AMC television series The Walking Dead, based on the comic book series of the same name, has rapidly become one of the most famous examples of the zombie fiction genre. Although the series takes place during a time when federal, state, and local governments have basically failed, it’s important to remember that, assuming some kind of government is eventually reconstituted, the survivors may still have to answer for their actions during the zombie apocalypse.
There is no statute of limitations on murder, after all, and there is historical precedent for isolated people in dire circumstances being called to account after the fact, such as survivors of shipwrecks.
Do the Undead Have Legal Responsibilities?
Obviously the walkers themselves cause most of the deaths in The Walking Dead, but could they ever be held legally responsible in any way? To answer this question, we must first answer the question “Are walkers legally dead or legally alive?” The answer may not be as obvious as you might think, as the cause of the zombie plague in The Walking Dead works a little differently than in other zombie fiction.
Rather than being spread directly by the walkers, the “infection” remains dormant until death, rendering every living human a carrier with the potential to become a walker. As explained by Dr. Jenner in Season 1 episode “TS-19”, when a human dies, the infection rekindles some sort of brain functioning, resulting in a walker. The cortical areas of the brain (the parts that allow us to do things that are uniquely human) remain offline, while the brainstem reactivates. In real life, the brainstem alone would not be sufficient to allow for movement and other functions, which require respiration, circulation, and energy metabolism.
Medically and legally, it is relevant that a walker’s brain continues to function, even if it is only the brainstem (and possibly some other “lower” parts of the brain). In the vast majority of states, legal death is defined by a version of the Uniform Determination of Death Act, which states that a person is dead when they have “sustained either (1) irreversible cessation of circulatory and respiratory functions, or (2) irreversible cessation of all functions of the entire brain, including the brain stem.” Were it not for their lack of a functioning heart and lungs, walkers would be considered legally alive. But since they are indeed legally dead, there is no hope for holding them legally responsible for the death and destruction they cause, either criminally or civilly.
Are Mercy Killings Legal During the Zombie Apocalypse?
Having considered the walkers, we now turn to the surviving humans. Throughout the show, the survivors visit all manner of violence upon each other, sometimes even motivated by good intentions. But how much of it would pass legal muster, even allowing for the extreme physical and mental situation the survivors find themselves in?
One of the most understandable instances of human violence is the mercy killing. Knowing that someone is likely to die, another survivor preemptively kills them in such a way that they will not return to life as a walker. This may even be done with the dying person’s consent. Examples include Daryl Dixon killing Dale Horvath in Season 2’s “Judge, Jury, Executioner” and Lori Grimes in the Season 3 episode “Killer Within.” Lori gave birth by C-section, effectively dooming her to die by blood loss; her son Carl shot her in order to prevent her return as a walker. We can sympathize with the difficulty of Carl’s choice and his ultimate decision, but was it, strictly speaking, legal?
In Georgia, where The Walking Dead is set, both self-defense and defense of other require an imminent threat: one that is “urgent and pressing … at the time of the killing.” In other words, the danger must be right then and there. If the danger is still in the future, that is not enough, no matter how certain the danger is to arise later. And while consent is a defense to many things, it is not a defense to murder.
Harsh as it may sound, from the perspective of the law Carl must allow Lori to die naturally before preventing her return as a walker. Because of the relative laxity of Georgia’s abuse of a corpse statute, we don’t believe he would be required to allow her to come back as a walker first, allowing Carl that one small grace, at least.
Was It Illegal for Rick to Help Andrea Commit Suicide?
A related issue is assisted suicide, where a person provides a dying person with the means to kill themselves. A recent example is Andrea, who is bitten in the finale of Season 3 and requests to commit suicide. Knowing her plan, Rick Grimes gives her his revolver and leaves the room, with the expected result. Was this legal? After all, Rick didn’t pull the trigger, nor did he suggest the idea.
Unfortunately for Rick, that wouldn’t be enough to put him in the clear. Assisted suicide is illegal in every state, including Georgia, and giving someone a gun, knowing that they plan to commit suicide, is a classic example of the crime.
We should also mention physician-assisted suicide, which is legal in only three states: Washington, Oregon, and Montana. Even if Rick had been a doctor in, say, Washington, the requirements surrounding physician-assisted suicide would not have allowed him to help Andrea the way he did or as quickly. The requirements vary from state to state, but they include a second opinion, a waiting period, and that the actual death occur by a prescription medication, not a self-inflicted gunshot wound.
Was It Legal for Rick to Chop Off Hershel’s Leg?
Another well-intentioned example of potentially illegal conduct is emergency medical treatment. Ordinarily, medical treatment requires consent or else it would be a battery. But what if there isn’t time, or if the injured person is unconscious or delirious? We are reminded of the first episode of Season 3, “Seed”, when Hershel Greene is bitten on the leg by a zombie, and Rick Grimes acts quickly to amputate Hershel’s leg in order to prevent the spread of the infectious diseases that many zombies carry as a consequences of their rotted state. The amputation, done with a hatchet and a belt for a tourniquet, was a desperate act, but it saved Hershel’s life. Was it legal despite Hershel’s lack of consent?
In this case, maybe. In general, consent may be inferred when there is no opportunity to obtain consent before action must be taken and there is no reason to believe consent would not be given. A person in Hershel’s position would consent to almost anything in order to avoid letting a lethal infection spread to the rest of their body.
How Does the Zombie Apocalypse Affect Moral Reasoning?
We now shift from the legality of the behavior of the survivors to whether and how it can be explained from a psychological and psychiatric point of view. The Walking Dead resonates with us because it forces us to examine the extreme behavior humans are capable of under extreme circumstances. In an extremely stressful situation, people often do things they didn’t believe they were capable of in order to survive. But in The Walking Dead, everyone is in the midst of an apocalypse and therefore preoccupied with satisfying even the most basic levels of Maslow’s hierarchy of needs. So why do people like the Governor act one way in the apocalypse, while people like Rick Grimes act another way?
Theories of moral development proposed by psychologist Lawrence Kohlberg offer one explanation for the actions of these two characters. Kohlberg proposed six progressive stages in the development of moral reasoning that advance from a concern with one’s own interests to a primary focus on societal justice. Before the apocalypse, Rick functioned in the higher stages of Kohlberg’s moral development, respecting individual rights and being guided by universal principles of justice and right and wrong. However, the new world he woke up to forces him to be a leader who struggles with what is best for his group, potentially at the expense of the individual.
For instance, in the Season 3 episode “This Sorrowful Life,” Rick considers sacrificing Michonne to potentially save the lives of those in his group. Ultimately, however, his moral compass prevents him from surrendering her to the whims of the Governor’s sadistic torture methods. This is not surprising, given Rick’s role as a sheriff prior to the outbreak and his attempts to serve as a role model for his son Carl.
What Makes the Governor a Psychopath–But Not Rick?
At first glance, the Governor’s differences from Rick may be explained by a lower stage of Kohlberg’s moral development (in which the individual values self-interests over what’s best for the social group), but the differences are greater than that: the Governor is a psychopath. He lies pathologically, and he manipulates others as pawns in his own disturbing game. He is callous, uncaring, and lacks empathy. While the Governor readily makes people believe that he abides by the tenet, “You scratch my back, I’ll scratch yours,” his guiding principle is actually, “You scratch my back, I’ll shoot you in yours.”
Milton asked the Governor what his daughter would think of him, hinting that Woodbury’s leader was not always this callous and sadistic. Could the loss of his wife and daughter have turned him into the Governor? While loss and psychological trauma can have powerful impacts on people, these factors alone cannot explain the Governor’s transformation into a villain.
In the world of The Walking Dead, nearly everyone has endured losses and psychological trauma, but despite the ubiquity of trauma, not everyone becomes the Governor. In reality, how well one copes with trauma is related to an individual’s resiliency: the process of positively adapting in the face of significant adversity. Studies have shown that certain factors promote adaptive coping to trauma, while other factors reduce the likelihood of such responses.
Factors that promote resiliency include: individual factors (e.g., high IQ, being in touch with one’s emotions, self-confidence, a sense of humor), relationships with good attachments, and supportive peers or social group. Indeed, being part of a high-quality social group during the zombie apocalypse not only offers security, power, affiliation, and opportunity for goal achievement (i.e., survival), but also serves as a buffer from maladaptive coping with trauma.
Why Do the People of Woodbury Follow the Governor?
Group polarization refers to the phenomenon that individuals form more extreme opinions and make more extreme decisions in group situations than they would in individual situations. Now imagine that the authority figure in your peer group is the Governor—would you follow his instructions to collect captive walkers from the Biter Pits to use them against other humans, as in the Season 3 episode “Prey”?
We might reflexively assert that we would never do something so horrible. But Stanley Milgram’s experiment and Philip Zimbardo’s Stanford Prison Experiment have demonstrated just how obedient we can be to instructions from an authority figure. Chilling as it may be to contemplate, people’s willingness to follow a psychopathic authority figure like the Governor is surprisingly realistic.
The Walking Dead has captured the public imagination because of its compelling portrayal of human behavior in dire situations. While the formal legal system has broken down during the apocalypse, the survivors still carry with them the cultural and social norms created by the law before the apocalypse. This understanding of how people “ought” to behave, reshaped by circumstances and group dynamics, helps explain why so many of the characters respond to the apocalypse the way they do.
But despite the protagonists trying to maintain some semblance of social order and often acting with the best of intentions, the law would still judge many of their actions harshly. Whether this points to a fault in the characters or the law is the subject of another discussion, but one worth having.