Death is inevitable; the one thing every living thing shares in common. The laws concerning the “means of death,” change from place to place, but certain phrases seem a constant, such as, “Death by Misadventure,” or “Death by Natural Causes.”  All too often the choice of the correct term might seem a game of semantics, engineered by the legal profession to astound and confuse, but there is a method to the madness of identifying the cause of death, the most obvious being the decision if a person died by other than routine causes and the prosecution of a person who had willfully taken a life before the victim’s full time on Earth.  Thus enters terms like, murder or manslaughter, which carry with it the assumption of criminal action against the perpetrators.

All of that being said, the question does come up every once in a while about deaths involving paranormal circumstances. In most of rational society, such are covered under the umbrella of “Death by Misadventure,” but in other parts of society, that does not suffice. By definition misadventure is an instance of misfortune; a mishap. By law it a death due to unintentional accident without any violation of law or criminal negligence. Thus, there is no crime.*[1]

First, let’s look at the possible cases where a death could be construed as being by or somehow related to the paranormal.  The most obvious is someone reportedly dying from a confrontation with a ghost.  By definition a ghost is a spirit, without a body, sometimes appearing to be a flesh and blood human, but more likely a shadow figure or comprised of a mist. So the question is:  Can one kill you?

Well, at first glance the answer would be “no” simply because the mechanism of injury seems impossible if you do not have a corporal body.  Unfortunately, that is not the correct assumption however. While “death by ghost” is rarely reported, you could argue any number of circumstances where death could be attributed to such a perpetrator.

First, ghosts have been known to move objects, throw them, or cause them to topple from otherwise secure places, so if you are struck by such an object, is that then really an accident? That would have to be argued, with an eye on the intent of the ghost, which might be difficult to assess. More to the point is what can you do about it even if you do see the related action as criminal? You can’t really hunt down the offending ghost for trial and possible punishment.

Moving on to a subset of the common haunting, the poltergeist is another story completely. In theory the poltergeist is empowered by a focal personality, usually young and female, but experts argue that while the person is giving the activity power, it is not done so consciously.  So once again, can the law prosecute the center of the activity as an accomplice to an act of aggression?  If Grandma gets hit in the head by an ashtray, can the person at the center of the activity be prosecuted?

All of this probably sounds a bit far fetched to most, but there is a point to be considered here.  If you as an individual promote a visit to a reportedly haunted location for the purpose of hunting a ghost and one of your guests is frightened by an apparition, can you be held accountable for that person’s death, if he collapses from a heart attack or stroke on the scene?   Even if a promoter asks for participants to sign a release should they be injured on the scene, is that enough to protect the promoter should someone die?

No, this is not a joke. It is only a matter of time before it happens. Well known “haunts” are the center of tours and hunts all over the globe today; and when it happens, the death of a participant will not be decided on the reality of the situation, but rather the victim’s perception at the moment. Whether or not they believe in ghosts is not the issue, nor is the possibility that an apparition will manifest in a menacing way. The issue is one of severity and intent.

There are a few variables to consider; first being if the victim paid to participate in the experience or second, that the victim had some reason to believe he was safe from injury. This is a fine line, but it seems that liability will fall upon the promoter more if he charges a fee, than if a club is hosting a community outing. The bigger question is one of intent.

Let’s create a simple scenario; a promoter who owns a spooky location is able to make a pact with the Pillsbury Doughboy to arrive on cue at that place. Doughboy agrees to allow himself to “rise” to a monstrous size for this event and pops out with a menacing glare just as the guests are brought to a predestinated area, and then Doughboy yells “Boo!”  Someone in the group passes out, is found to be not breathing and the paramedics are called.  Unfortunately, they can’t resuscitate the victim, who is pronounced dead at a nearby hospital.

Is the promoter of the event liable?  Civil statutes from place to place do change, but for the most part, yes he can be sued and will probably lose. That is why promoters have insurance. But to the question of criminal liability, the answer is probably no. It was not his intent to harm anyone and the thought of an eight foot tall Doughboy certainly is not all that menacing, at least in retrospect. The promoter will probably not be going to jail, nor for that matter would the Doughboy, if you could locate him, but the insurance company will be paying for the guests “misadventure.”

Now shift just a bit.  You read about a haunted mansion and the article notes that the owners will allow overnight visitors to come in and investigate for a rental fee.  You contact the owner and give him the money he wants to use the house for 48 hours.  Lease in hand, you lead your group of paranormal investigators to the mansion and settle in for the evening.

At one point, a member of the team wanders off and is found lifeless a few minutes later. You call for help, but he is already gone. While checking out his gear, you turn on his digital voice recorder and hear him say plainly, “What the heck….” followed by several expletives and the word, “Get Out!” in yet another voice. His MelMeter has recorded a huge EMF spike at the moment of his demise and also recorded an almost unbelievable temperature drop at the same moment. What are the liability issues?

This is the meat of the discussion. On one side we have the “scientific” method of investigations, but in reality, we have only anecdotal beliefs.  Our instrumentation is improving, but our instrumentation is only capturing physical changes that we believe are related to paranormal events. While it is accepted widely that cold spots and EMF spikes suggest the presence of a disembodied spirit, no one can prove that hypothesis conclusively to an empiric standard.  In other words, we are on the right track, but the proof to a legal definition is still illusive. There is no “case law” addressing this subject that I am aware of anywhere; while the English Common Law, upon which our legal system is structured today, covers a lot of things, ghosts are not one of them.

Even if you could provide an eyewitness or video tape of the encounter, I do not think it could be admissible in a court of criminal law.  The investigator’s family might get away with it in a civil court however, where the standard of proof is much lower, but again, who are you going to sue? The ghost?  If the owner had provided a reason to believe that the place was haunted, that would serve as a prior warning, which would only weaken a case against him for negligence. But there is one person or group who could be liable, that is the ghost hunters themselves.

Hundreds, if not thousands of ghost hunting groups abound today. What is their liability?  Very few are corporations, so the groups “intent” is open to interpretation.  Because of their independent status, they are unlikely to have liability insurance to cover a mishap, so the leader or group leaders may be considered liable to guarantee reasonable safety. There is obviously no hope in, “the ghost did it,” defense.  By their nature the group apparently supports the existence of such phenomenon.  If a member or guest dies while involved in such an outing, can the group be sued?

Unfortunately, the answer is, “yes.” Their defense would have to rest on one of reasonable expectations on the part of the deceased.  Is it clear that he was entering a dangerous situation willingly?  Here lies the rub; if there are no cases of death by paranormal means on the books, then we are breaking new legal ground and the outcome is literally a coin toss, depending on any number of variables, including just how good the attorney for the defense and prosecution might be, the make up of the jury and whether the judge has a good sense of humor.  The litigant might walk out of court with a giant settlement or without a cent. But the issue is that such a suit could be brought.

The United States is an extremely litigious society; we sue people for everything, so it seems to be just a matter of time before someone sees the pot of gold at the end of this rainbow.  There have already been lawsuits involving liability over safety issues, while that pile of rubble may add to the ambiance of the ghostly setting, it is also a lawsuit waiting to happen. The only defense is good paperwork beforehand, signed releases, contracts and member agreements.  Even then, there is nothing to guarantee that someone, somewhere will not sue you down the road.

There is one other area of liability that I have not addressed. This is pertinent as a part of the paranormal, although certainly main stream enough to otherwise get a pass; that is death by religious extension. The following is a true story which has been edited for length.

Assume for a moment that a prominent member of the liberal community becomes a vocal opponent to a “conservative” religious group. The religious group is against gay rights empowerment, but the debate is strongly in favor of the liberal’s view and a local ordinance is dismissed that some see as being “anti-gay.”  The religious group then turns its sights on books in the school library and begin to picket when their request to ban Harry Potter is denied after another public debate with the Liberal leader. The religious group then decides that it is time to learn more about the woman and hires a private investigator, who in turn follows the woman.

After some time, the private investigator comes back to report that the woman goes to another town each Friday and is a member of a Wiccan circle there.  The group springs into action, announcing that the woman is a witch and practices demonic magic.  At first the woman ignores the attacks but becomes infuriated when pickets show up at her store. The harassment continued until one evening, at a political meeting, the leader of the religious group barges in to denounce the woman once again. The woman stayed cool and the man was ejected from the meeting.  A few minutes later, another community leader questioned how they should “handle” this group, who he reports are only about 20 in number in a community of 20,000.  The woman in question, a microphone in front of her, says, “I’m just going to put a spell on him!” with a smile on her face.  Everyone agreed it was a joke.

The next day, the word was out and in the newspapers that the woman had vowed to put a spell on the man and 48 hours later, the man died of a heart attack.  When asked by a local reporter if there was any connection, the woman just smiled and suggested it was not a good idea to attack a witch.  When asked in a follow-up question, if she had actually put a spell on the man, she said, “Yes, I did!”

So, in this situation, what is the law?  Can a witch be charged with “death by spell?”  Obviously, the answer is no.  She neither confronted the man face to face, nor did she threaten him with physical harm.  While one could argue that a real practicing witch could unleash enough energy to hurt someone, the allegation that she was a Satanist was untrue in the account; if anything she could have sued him for slander. Any criminal action would be impossible, and in order to prove liability in a civil suit you would have to prove a long list of items that have never been studied.  In fact, the question is really can anyone kill another living human by psychokenesis?  The answer could be debated, but throughout the study of that area of paranormal activity, not even the gifted researchers at Duke University ever came close to demonstrating such physical ability. 

In this case, the witch never uttered a death threat, she never said she wanted the man to die, so the assumption that the spell she claimed to have casted would most likely be one ending in the man’s heart attack is lacking. Added to this rather bazaar case is the fact that both parties were by law considered public figures, so anything they may have said is on the record.  The fact that the man had recently said that God had ordered, “A witch should not be allowed to live,”  and that in the “Burning Times,” people had the right idea, only suggests malice on his part. Prayer, by any name is not illegal.

This of course is a whole new sphere and one can only guess what the future will hold. At the moment there are several laws being discussed openly that would limit the activities of paranormal groups, forcing them to meet registration requirements set by legislators, much as they control any number of businesses.  One state representative recently went on record to suggest the Ghost Hunters be licensed and taxed; another raised the question of minimum liability insurance and registering members.  All of this begs the question when are the civil rights of any group being impinged upon. The issue of liability is very real and some groups have already addressed it, but not as many as might be needed to demonstrate they are self-policing and setting reasonable standards for themselves.

While tripping through the cemetery with friends may be great fun for some, the sheer numbers of people who want to do it is far more visible to the public than ever before.  This in turn could affect other groups, if they do not fulfill at least minimum standards of conduct. The time to act is now!

© 2009 Rick Moran and the ASUP, Inc. All rights reserved.  Republication with permission.