A Break from ‘Nits’ With Downton’s Legal Drama

With the coming Season 4 of “Downton Abby,” I've been reviewing the earlier seasons. The show has been characterized by many as a “Legal Drama” based on the first season's underlying legal dilemma concerning England's inheritance and estate law. But as the drama progresses, the series is rife with collateral circumstances that present legal questions.

To me, one of the most compelling in the first season was the miscarriage suffered by Lady Grantham, especially as it turned out that it would have been a boy, and solved the quandary for a male to inherit the title and estate.

Here’s how I see that episode if presented in the form an MBE question:

O’Brien works for Lady Grantham as a lady's maid and personal care assistant. One day, O’Brien eavesdropped on a conversation of Lady Grantham. O’Brien jumped to the erroneous conclusion that Lady Grantham was about to terminate O’Brien’s employment. O’Brien became angry and bitter at the possibility of such callous treatment after O’Brien's 10 years of loyal service to Lady Grantham. The next day, O’Brien was assisting Lady Grantham with Lady Grantham in her bath. Lady Grantham dropped the cake of soap outside the tub. The cake of soap broke in two. O’Brien retrieved one half and handed it to Lady Grantham in the bath, explaining, “The other half is under the tub.” As O’Brien said this, O’Brien intentionally and surreptitiously moved the second half of the soap with her foot to the side of the tub so that Lady Grantham might step on it and slip. O’Brien did this knowing Lady Grantham was four months pregnant. O’Brien left the room for other duties, but then had second thoughts and decided to alert Lady Grantham. However, just at that moment, on exiting the bath tub, Lady Grantham stepped on the soap cake, slipped, injured herself and suffered a miscarriage that killed the unborn fetus. The jurisdiction retains the common law.

What crime or crimes can O’Brien be prosecuted for?

No crime because O’Brian renounced her attempt when she changed her mind and turned to warn Lady Grantham and thus there was no concurrence between actus reus and mens rea.

Murder with Malice Aforethought for causing the death of the unborn fetus, because O’Brien intentionally moved the soap.

Depraved Heart Murder for causing the death of the unborn fetus, because O’Brien acted with wanton indifference to human life and a conscious disregard of the unreasonable risk of serious injury or death by moving the soap and increasing the risk Lady Grantham would slip on it.

Voluntary Manslaughter of the unborn fetus because O’Brien was genuinely outraged and in the heat of passion by the possibility of being fired by Lady Grantham after 10 years of loyal service.

Battery for injuring Lady Grantham; Misdemeanor Manslaughter of the unborn fetus because O’Brien had no intent to kill the fetus.

Battery for injuring Lady Grantham; no crime for causing the death of the fetus because at common law, no homicide was possible until a human being was “born alive.”

Any thoughts?

The fact pattern probably lends itself even better to an essay question either in crime or torts. The potential for O’Brien’s tort liability is considerable: Battery; Wrongful death of the unborn fetus (loss of consortium); negligent infliction of emotional distress; intentional infliction of emotional distress . . . what else?