Last week I watched my DVD copy of one of my favorite movies, Stanley Kubrick's version of The Shining, featuring one of my favorite actors, Jack Nicholson, playing the role of Jack Torrance. Yes, I know it is not exactly faithful to the Stephen King novel of the same name; King himself commissioned his own miniseries version of The Shining in 1997, and a very nicely done miniseries at that. But the combination of Nicholson's performance as Jack Torrance and the cobbled-together musical score featuring the eerie synthesizers and warped vocals of Wendy Carlos and Rachel Elkind and the haunting, almost piecemeal orchestral pieces of Krzysztof Penderecki make Kubrick's version of The Shining a classic.
(It would have been perfect if you could have combined the two versions. Take King's 1997 miniseries and put in Kubrick's musical selections. Replace Steven Weber as Torrance with Nicholson; while Weber did a good job as a caring, tragically-flawed father having his buttons pushed by the demonic Overlook Hotel, nothing could top Nicholson's performance in the role. Replace Courtland Mead as Danny with the original Danny Lloyd, as Mead simply looked too old for the part. Also replace the monotone Melvin Van Peebles with Scatman Crothers as Dick Halloran. But keep everything else from the 1997 miniseries, most especially keep the strong Rebecca DeMornay as Wendy Torrance instead of Shelley Duvall, who was so obnoxious I was actually rooting for Jack. And keep the Stanley Hotel in Estes Park, CO (Stephen King's inspiration for The Shining) as the Overlook Hotel, replacing the Timberline Lodge on Mount Hood, OR, which always struck me as far too modern for the part. But I digress ...)
However, I am a lawyer. And going through law school is like eating of the Tree of Knowledge of Good and Evil -- you are changed forever; your view of things is changed forever. And so, while watching Stanley Kubrick's version of The Shining, for some reason I asked myself, "How would the law treat Jack Torrance?" Suppose Jack Torrance survived his encounter with the Overlook (in Kubrick's version he is frozen to death in the hedge maze; in King's version he dies when the Overlook's boiler explodes), and he had to face justice for what he had done. We all know Jack Torrance was the villain -- or, more precisely, became the villain -- but how would our legal system view Jack Torrance?
When I considered this question using only Kubrick's version of The Shining, I came out of this with an astonishing answer. My guess is that, even without any plea of insanity (under any of the methodologies for determining insanity), if Jack Nicholson's Jack Torrance faces a court for what he had done, he is likely to get off scot-free. In fact, Shelly Duvall's Wendy Torrance committed more crimes and more torts in this movie than Jack did.
Surprised? I know I was. But look at the evidence and how it can be presented.
Jack's first physical confrontation with Wendy came in the Colorado Lounge, after jack discovered Wendy reading his manuscript, filled as it was with repetitions of one line "All work and no play makes Jack a dull boy." Jack was unarmed; Wendy was armed with a bat. After an increasingly heated discussion about Danny, during which Jack continually advances while Wendy physically retreats, ultimately up the stairs of the lounge. Wendy uses the bat to keep Jack at bay, but while Jack is advancing and Wendy retreating, he makes no overt move intended to hurt her.
Eventually Wendy asks to go back to her room to think things over. Jack responds:
You've had your whole f*cking life to think things over. What good's a few minutes more gonna do you now?Wendy screams at Jack to not hurt her and keeps swinging the bat. Jack smiles and replies:
I'm not gonna hurt ya. Wendy ... darling ... light of my life ... I'm not gonna hurt ya. you didn't let me finish my sentence. I said I'm not gonna hurt ya. I'm just gonna bash your brains in. I'm gonna bash them right the f*ck in. Ha Ha. Ha Ha.This constitutes the only actual explicit threat Jack makes in the film. He makes it while he is smiling, laughing and using pet names for Wendy. He also has no present ability to carry out that threat. This makes its legal significance as a threat questionable.
Meanwhile, it is Wendy who is swinging the bat at Jack. Jack repeatedly demands that she give him the bat. She refuses and keeps swinging. Jack reaches up, not at Wendy, but for the bat that she has been swinging at him. She hits him on the had, which drives him back, then she his him on the head, knocking him unconscious and sending him tumbling down the stairs.
At this point, Jack has committed no crime or tort. Wendy has committed assault (reasonable apprehension of immediate harmful or offensive touching) and battery (harmful or offensive touching). Her own affirmative defense of self-defense is compromised because Jack's threat could easily be interpreted as a joke and since he had no present ability to carry out that threat. Indeed, he did not have nearly the ability that Wendy did, because Wendy had the bat.
Next we have Wendy dragging Jack to the food pantry, where she locks him in. That is false imprisonment (affirmative act or omission which confines to a bounded area with no reasonable means of escape). Jack taunts Wendy through the door, but again does not threaten her.
Jack's taunts involve the disabling of the radio and the snowcat, preventing Wendy and Danny from escaping from the Overlook. Well, maybe not, since they both can leave the Overlook; Jack has not locked them in, as Wendy has him. He has just disabled their best means for doing so. But as caretaker of the Overlook, Jack is contractually responsible for the hotel and everything in it. He is well within his rights to prevent unauthorized use of the property, and it is not clear at all that radio and snowcat could not be repaired in short order.
The evil spirits of the Overlook Hotel let Jack out of the pantry, and he is next seen using a fire axe to hack his way into his apartment, where Wendy has barricaded herself and Danny inside, locking Jack out. Wendy and Danny retreat to the bathroom, where Danny escapes out a window, though Wendy is unable to follow. Jack taunts them, then begins to hack his way through the bathroom door with the axe. Eventually, he pokes his head through and bellows his most famous line: "Here's Johnny!" Jack reaches through the door, but Wendy slashes at him with a knife, driving him back temporarily.
I look at this sequence and I see no crime at all on Jack's part. Jack never verbally threatened Wendy or Danny, never attacked them with the axe. Jack used the axe to hack his way through two doors, but he never attacked Wendy or Danny with it. Moreover, he had a perfectly logical reason for using the axe -- Wendy had locked him out of the apartment and out of the bathroom. Jack had not only a legal right to enter the apartment, but as caretaker he had a legal duty to do so, and the axe was the only way to do it.
Once again, it is not Jack but Wendy who committed the crime here -- battery, by slashing Jack with the knife.
Jack is distracted from going into the bathroom by the sound of a snowcat outside. Dick Halloran has shown up at the Overlook to rescue Danny and Wendy. As Halloran is walking through the hotel lobby, Jack plunges the fire axe into Halloran's chest, killing him.
So Jack obviously murdered Dick Halloran, right? Not so fast.
Halloran was walking through the lobby wearing winter clothes that helped hide his identity. It is not clear if Halloran had a legal right to be at the Overlook at that time; remember that Halloran worked there when the hotel was open, and Jack was responsible for the hotel at this time. Moreover, Danny had shown bruises and scratches from a physical attack. Wendy told Jack that "a crazy woman" inside the Overlook "tried to strangle Danny." No one was supposed to be at the Overlook except for Jack, Wendy and Danny, but Danny's injuries were evidence that someone else was indeed inside the hotel, someone with ill intentions, someone who should not be there. So Jack goes down to the lobby and finds some strange person who should not be there.
Can you say "self-defense?" Can you say "defense of others?" Jack can argue that he was in reasonable fear for his life, because he saw someone who was not supposed to be there and he had reason to believe that there was someone inside the Overlook with hostile intentions.
Finally, we have Jack chasing Danny with the axe into the hedge maze in the bitterly cold night. Clearly this is attempted murder, right? Right?
It could be. Or it could be that a father just saw his son run into the hedge maze in the bitterly cold night and wants to find him to bring him inside for his own well-being before he suffers injury from the cold. Jack never verbally threatened Danny, never came at him with the axe, never even saw him once Danny ran into the maze.
Why would Jack need an axe to find Danny? Because of the forementioned "crazy woman." Or because he might need the axe to knock down the hedges to get Danny out.
Nothing more than a mental exercise, to be sure. But it just goes to show that while you and I know Nicholson's Jack Torrance was a dangerous, insane villain with murderous intentions in Stanley Kubrick's The Shining, in real life a good defense attorney might convince the law to see it differently.
And if you think this means "the law is an ass," you would be right.
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