Nick Kam

At the end of last year, media outlets around the world lit up with news of the birth of conjoined twins in Brazil. The boys, Jesus and Emanuel, exhibit dicephalic parapagus conjoining, the same union as Americans Brittany and Abigail Hensel. They differ in that the share only one set of vital organs. Doctors credit the Hensel twins’ dual set of organs with their success into adulthood. Questions of separation, as always, abound.

Whenever conjoined twins come along, it’s interesting to note how  journalist and doctors comment on their individuality. A few examples below:

“A Brazilian baby was born with two heads, named Jesus and Emanuel, but appears to be in good health, according to doctors.” — International Business Times

“Despite all the problems we have as a small interior hospital we managed to save both mother and baby, which was our aim.” — Hospital director Claudionor Assis de Vasconcelos

“They are being monitored by specialists to see how they develop.” — BBC News

In the first two quotes, the commentator refers to the twins in the singular. In the latter quote the writer uses the plural pronoun “they” to signify their duplicative personhood.

The teratologist Saint-Hilaire noted that conjoined twins were given separate names, indicating their individuality, as springing from the practice of baptizing children on their heads. A body with well-formed two heads was therefore baptized once on each head and each received a name.

As science and medicine evolved, so did our longevity. While most conjoined twins would die in infancy 100 years ago, with the advent of modern medicine and an appreciable understanding of conjoinment (Chang and Eng Bunker could have been easily separated), conjoined twins can survive well past infancy and into adulthood. This allows us to appreciate the separate personalities that conjoined twins take on as the grow older, giving credence to the argument that there are in fact two individuals present in one entangled body.

One could argue then that under this logic a person exhibiting multiple personality disorder should be granted personhood for every personality in their brain. Regardless of the fact that multiple personality disorder lacks the physical component of conjoinment, the difference lies in the fact that multiple personality disorder, at least in theory, is curable.

“But wait!” the skeptic shouts, “conjoined twins can be separated!” A brilliant segue indeed.

Simultaneously with the news of Jesus and Emmanuel’s births came the news of the possibility of separation.  ”A lot of work is needed, in terms of scans and tests, before doctors will know if they can separate them or not, and just how organs and blood vessels are shared and linked. It takes quite a while before they can decide how feasible [separation] is.” – Patrick O’Brien, a spokesman for the UK’s Royal College of Obstetrician and Gynaecologists. Later, doctors would reveal that separating the twins is  not an option because they share a set of organs. Attempting to separate them would be to kill one if not both of them (see Jodie and Mary).

Days before the birth of Jesus and Emmanuel, Chilean conjoined twins Maria Paz and Maria Jose (pictured above) made their way into the news. When the girls were 10-months old, doctors assessed their conjoinment and determined that separation was feasible. The 20-hour surgery took place and doctors deemed it a success. A week later on December 18, 2011, the news dropped: “A 10-month-old girl who was surgically separated from her conjoined twin died Sunday after suffering general organ failure, said the director of a Chilean children’s hospital.”

Despite all the science, all the innovation, and all the careful planning, their success became a failure with the death of one of the twins. They “were so preoccupied with whether they could that they didn’t stop to think if they should.” Alice Dreger is a bio-ethicist who continues to ask the question: should we separate conjoined twins? When conjoined twins come along, doctors’ first instinct is to wonder if they can be separated to give them a better chance at a “normal life.”

The thinking goes that we want people to be able to live the most normal life possible and conjoinment stands inapposite to that goal. But Dreger rebuts this assertion; perhaps conjoinment is what’s normal for them. For all the risk and possible little reward (rendering one as less than the Platonic ideal, reducing mobility in both twins, risking death), why does science encourage dangerous separation procedures? Instead, why not reconsider normal and accept that perhaps their conjoinment, their entanglement is the norm for these twins. If they can live full lives together, why are we so eager to rip them apart?

For Jesus and Emmanuel, separation is not an option. But the fact that doctors talk in terms of separation indicates that there is more than one person contained in these conjoined twins’ body, for it always takes two to tango.

Via MSNBC and BBC News.

Via Deadbeat Hero (2004).

“Their brains are recording signals from the other twin’s visual field,” [Dr. Douglas Cochrane] cautiously concluded. “One might be seeing what the other one is seeing.”

A twin may be the instigator, but singling out one for punishment often doesn’t work. “When one gets in trouble and you try to discipline her, the other one kicks in and starts defending her sister,” says [their mother, Felicia] Simms. “I’ve just gotten to the point where if they don’t change their attitude when you talk to them the first time they both go into time out. How do you not?” she asks. “It’s just come down to . . . you can’t discipline one without disciplining the other. It’s just impossible.”

From Macleans.

Additional coverage at the NY Times.

Found at Tangents in Fort Bragg, CA

Oh, you wanna know? ‘Cause the answer’s easy! I’m BAD Ash… and you’re GOOD Ash! You’re a goody little two-shoes! Little goody two-shoes! Little goody two-shoes!

Army of Darkness

Note the conjoined twin print behind our antagonist

2010′s gross-out, horror film The Human Centipede (First Sequence) came and went with more hype than anything else. Finally, it’s hit Netflix on-demand opening up the movie to a much wider audience, except for the squeamish of course. Some have praised it highly, others panned it without due diligence. Roger Ebert’s remarks certainly take the cake:

I am required to award stars to movies I review. This time, I refuse to do it. The star rating system is unsuited to this film. Is the movie good? Is it bad? Does it matter? It is what it is and occupies a world where the stars don’t shine.

In the film the token, creepy German Dr. Joseph Heiter, played by Dieter Laser, is a former surgeon who made his living separating conjoined twins. But his true passion in life lies in attaching autonomous creatures to form a more perfect organism.

Will he succeed in building Ethmostigmus rubripes sapiens? Yes.

Will the doctor be thwarted by our plucky young cast? Perhaps.

Will you be emotionally scarred forever? No doubt.

Do yourself a favor and treat yourself to the Siamese triplets proffered by this heartwarming film.

How would the American legal system punish conjoined twins if one committed a murder while the other was completely innocent?

Introduction

Let’s consider, for the sake of argument, that we are dealing with dicephalic parapagus conjoined twins, conjoined twins with two heads sharing one body. Each twin controls one half of the body, neither can control the other’s half of the body, and neither can feel what the other feels. This is the physiology of the Hensel twins, Abigail and Brittany Hensel. Further, you must accept that these are two separate individuals because: 1) they have two separate consciousnesses, 2) they exhibit distinct personalities, or 3) they each had to pass the driving exam. They are entangled singletons – two consciousnesses in one continuum of skin whose individuality is defined partly by their conjoining (see bio-ethicist Alice Domurat Dreger).

When considering the punishment for one guilty conjoined twin, it is necessary to put aside all of the factual considerations that may arise when one conjoined twin commits a murder to the detriment of her innocent, connected sibling. Put aside the idea that the innocent twin had any control over the guilty twin’s hand. Put aside the idea that the court may impute the guilty action to the innocent twin, finding her an accomplice in the commission of this murder. Put aside the idea that the court could find that the innocent twin had some duty to stop the murder from occurring. To accept any of these ideas is to find the conjoined twins entirely innocent or entirely guilty and runs outside the scope of this problem. Accept, for the purposes of this problem, that the jury has found one twin guilty and the other is merely an innocent bystander — she did not participate in the act nor could they have stopped the homicide from occurring.

The question posed is not purely speculative. According to 18th century French historian Henri Sauval, a murder of the kind presented was perpetrated in the 17th century by Italian conjoined twins. Born in 1617 in Genoa, two boys were held together by the stomach. One twin was completely healthy while the other was mute, deaf, and blind. Sauval records that the healthy twin stabbed a man to death and was tried, convicted, and sentenced to death. However, the twin was not executed “on account of the innocence of one of its component halves.” It was impossible to put one to death without twin killing the other. Unfortunately, Sauval failed to mention whether they were subsequently incarcerated or released after the death sentence was commuted, leaving this scenario ripe for legal analysis in the abstract.

Findings of Guilt

Before dolling out punishment, there must be a finding of guilt. The Fifth Amendment of the Constitution provides “No person…shall be deprived of life, liberty, or property, without due process of law.” When we speak of due process, we speak of fundamental fairness: the prosecution must prove all of the elements of a crime beyond a reasonable doubt through a fair procedure before a fair finder of fact. Crimes deal with conduct which society deems anti-social and therefore deserving of punishment. The term conduct is used in a broad sense to cover the two distinct components of a crime: 1) the act and 2) the state of mind accompanying the act. Therefore, when the Legislature passes a law outlawing a particular crime it will include a definition of the act and the requisite mental state to commit the crime. A crime cannot be consummated without fulfilling both of the elements of act and intent.

Under federal law, murder is defined as follows: “Murder is the unlawful killing of a human being with malice aforethought.” 18 U.S.C. § 1111(a). Here, Congress has defined the act of murder as “the unlawful killing of a human being” while the state of mind to commit a murder is “malice aforethought.” Malice aforethought is one of those lofty legal concepts that exists mainly so scholars can debate its meaning. Essentially, malice aforethought is a deliberate intention to take away the life of a “fellow creature,” according to the California Penal Code. Cal. Penal Code § 188.

In order to convict someone of murder, the prosecution must prove beyond a reasonable doubt that the accused committed the proscribed act and harbored this requisite mental state. The paradox presented with this problem is that although we have two inextricable entwined people, only one twin can be convicted of the crime. As in most criminal prosecutions, the jury serves as the finder of fact and must make the determination of guilt. For the purposes of this argument, we must suppose that only one twin can be convicted of the crime. Otherwise there is no legal dilemma. Once there has been a finding of guilt, the court attempt to determine the punishment for this crime, being ever respectful of the innocence of one of the twins.

Punishment

The broad purposes of the criminal law are to make people do what society regards as desirable and to prevent them from doing what society considers to be undesirable. To achieve this end, the State allocates punishment for bad acts as opposed to rewards for good acts, emphasizing the discouragement of undesirable rather than the encouragement of the desirable. There are several theories underlying punishment, each with specific ends and particular means. These theories include:

Deterrence — Deterring the criminal or society (by way of example) from committing crime by giving him an unpleasant experience such as jail time.

Incapacitation — Incapacitating the criminal by removing him from society to protect the populous from further criminal conduct.

Rehabilitation — Rehabilitating the criminal through appropriate treatment or training.

Retribution — Retribution, or justice, is imposed on criminals by society for the wrongs they have caused.

Proposed Punishments

1. Capital Punishment

The death penalty stands as the most impractical of all the potential punishment choices. As there is only one conclusively guilty actor in the pair, the court would have to find a way to kill only the guilty twin. In the novel The Siamese Twin Mystery by Ellery Queen (1933) the authors considered the practical angles of this problem, including how to electrocute one Siamese without damaging the other, and in the end resolved the problem by clearing the twins of the crime. Depending on the extent of the conjoining, which in this case is substantial, it is likely impossible to kill one without killing the other. While this punishment would protect society from further harm by either twin, the execution of an innocent person runs so afoul of due process and the morals of American society, capital punishment cannot be used in this case.

2. Life Without Parole

As an alternative to the death penalty, Courts hand down sentences of life without parole. This represents sufficient leniency by the court but still raises constitutional concerns of jailing an innocent person for the duration of her life. Again there is the problem of denying someone their liberty without convicting them of a crime. There lies an exception to this doctrine under the criminal law for criminal forfeitures. This is when the State seizes property used in the commission of a crime (houses, cars, boats) even though the true owner had no knowledge of its illicit use. Under this doctrine, the injured, innocent owner can seek remittance of the property from the State. This concept lends itself by analogy to a murder involving only one conjoined twins. The State would presumably be in its rights to seize the unlawfully used property (i.e. their shared body) but the innocent twin would be given the opportunity to remit forfeiture in their body as a “joint tenant in common.”

3. Separation

To consider more extreme approaches to punishing the guilty twin, the Court could order the twins separated so that the guilty twin may be punished. Even if this Solomonic option were possible in this case, as physiologically it appears impossible, this action raises grave Constitutional concerns. The Supreme Court has held that the body to be inviolate, providing slim exceptions to this rule as in the testing blood alcohol content, chemical castration, and the death penalty. This punishment smacks of the Sharia law practice of chopping off a convicted thief’s hand. Furthermore, it is hard to argue that separation would only punish one of the twins as each would be left immobile, one half of a complete body. Separation surgeries have some success as in the case of Jodie and Mary Attard (although this surgery was undertaken knowing full well that it would and did kill the weaker twin). Modern scholars estimate the rate of successful separation surgery at around 5% (see also the Bijani twins). With such dismal rates, sentencing conjoined twins to separation surgery would be the equivalent of a death sentence.

4. Suspended Sentence

If the Court finds that the Constitutional limits of due process are so great that neither twin may be punished, the Court may be obligated to let the twins go free. This would be the ultimate downward departure from sentencing guidelines. Exercising this option calls to attention the balancing of American morals: which do we hold higher, the punishment of an innocent life or freeing a guilty one? To allow a convicted murderer to go free spits in the face of retribution and that holy notion of justice. Furthermore, Justice Scalia might argue, this option yields the ultimate killing machine: a person who cannot be punished for murder because their physiology precludes punishment. In light of this concern remember that the circumstances of the murder are so unlikely that it has only occurred once in known history. However, say the conjoined twin did kill again, it is hard to imagine that a jury could bifurcate the finding of guilt across the twins for a second time.

5. Monetary Sanctions

Finally, monetary sanctions may satisfy the underlying problem presented. While it is hard to accept monetary sanctions in the place of traditional punishment, this option may be the only permissible alternative. Primitive and ancient societies relied on a form of tort damages, known as “wergild,” to compensate the families of murder victims and to control crime. The Germanic tribes had some success with this option until the Norman Conquest of the 9th century which did away with the practice. The problem with this punishment is that the average person would be reticent to assign a monetary value to surrender his life as he would get no utility from the money. Tort law, on the other hand, provides monetary compensation in wrongful death lawsuits, assigning millions for the loss of life. However, here we speak of the criminal law of murder, not the civil law of tortious liability. Monetary sanctions have never been popular in the modern era. Additionally, it is hard to argue that monetary sanctions would affect only one member of a conjoined twin pair.

Conclusion

As actors under American criminal law, conjoined twins present paradoxical obstacles to the application of traditional methods of criminal punishments. The Western notion of individuality precludes such duplicitous beings from orthodox measures to remedy criminal action, particularly the crime of murder. Constitutional limitations of due process and guarantees of life, liberty and property militate against equal treatment of these actors under the law. I believe that within our Constitutional framework, the only thing to be done in this situation is to release the conjoined twins. Even if the jury sentenced the conjoined twins to death, the court would have to commute the sentence and release the twins. The guarantees of due process under the Fifth and Fourteenth Amendments prohibit punishing an innocent actor. Furthermore stare decisis, the doctrine that states that courts must follow the precedent of preceding and higher courts, presents an additional danger. If the court decided to punish the innocent twin despite her innocence, there would be nothing to stop the State from punishing others who have not been convicted of committing crimes (see also enemy combatants, plea of not guilty by reason of insanity, etc.).

While this solution may seem like a grave injustice to society, consider the innocent parties injured through mistrial, the criminals released because of shortcomings of shoddy police work, and statutes of limitations preventing the delayed filing of charges despite ironclad certainty. Such is the nature of our legal system. With these limitations come the freedoms and guarantees of the Constitution, preventing an overreaching government from undue interference into the lives of private citizens and frivolous legal action.

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Links:

Chained for Life (1951). A dramatization of the situation presented.

Those Extraordinary Twins by Mark Twain (ebook provide by Project Guttenberg).

Tom Waits Interviews Tom Waits. In this interview Tom Waits offers the story of a conjoined twin who committed a murder in 1890 in Baltimore. As far as I can tell, there is no merit to this story.