Can a spellcaster choose to deal nonlethal damage with a touch weapon-like spell?

Question

The rules for nonlethal damage state:

You can use a melee weapon that deals lethal damage to deal nonlethal damage instead, but you take a –4 penalty on your attack roll.

Does this allow for a spellcaster wielding a weapon-like touch spell to deal nonlethal damage with that spell's effect without needing to take a metamagic nonlethal substitution feat?

Relates to this question, but this specific question seems to be unanswered.

Answer 1

No, with one exception.

Touch spells are not weapons, though they may be treated as weapons for certain effects, such as the Touch Range section of the SRD, which says (emphasis mine):

A touch spell that deals damage can score a critical hit just as a weapon can. A touch spell threatens a critical hit on a natural roll of 20 and deals double damage on a successful critical hit.

or the Weaponlike Spells section of Complete Arcane (p72) which says (emphasis mine):

Any spell that requires an attack roll and deals damage functions as a weapon in certain respects.

This is pertinent since the Nonlethal Damage section of the SRD says (emphasis mine):

You can use a melee weapon that deals lethal damage to deal nonlethal damage instead, but you take a –4 penalty on your attack roll.

---

Thus touch spells are not weapons, but can act like them in certain, defined, circumstances. Being able to deal nonlethal damage at will for an attack penalty is not one of them.

---

However, if a spell produces a melee weapon that you can attack with, even as touch attacks, then you can attempt non-lethal attacks with the produced weapon.

Answer 2

No.

Complete Arcane specifies a number of ways in which “weapon-like spells” behave somewhat like weapons, but this aspect of “weapon-hood” isn’t mentioned. Absent a specific mention, spells would not have this property, even if they are weapon-like.

The Subdual Subsitution metamagic feat can allow any spell to become nonlethal, however, and does not apply any spell level adjustment. That still has drawbacks (needing to prepare it ahead of time, or extend casting time, or just not applying to spell-like abilities¹), but it’s the best available.

1. _{Complete Arcane does say “[Sudden metamagic feats] don’t require modified spell slots, so they work as well with spell-like abilities or invocations as they do with spells,” emphasis mine. That logic is found nowhere else in the rules, and RAW, it’s basically nonsense and to be ignored (at best it establishes a special exception for those feats and nothing else), but if you want to make a case to your DM about using Subdual Substitution on invocations, it might help.}