Deadly speech: encouraging suicide and problematic prosecutions.

• Author: Sweeney, Sean

CONTENTS INTRODUCTION I. SUICIDE IN WESTERN CULTURE II. ENCOURAGING SUICIDE DEFINED III. TYPES OF PROSECUTIONS FOR ENCOURAGING SUICIDE A. Involuntary Manslaughter B. Specific Provisions Criminalizing Encouraging Suicide C. Aiding or Assisting the Suicide D. Incitement to Commit a Crime IV. PROBLEMS WITH SPECIFIC LEGISLATION CRIMINALIZING ENCOURAGING SUICIDE A. Constitutional Problems and Strict Scrutiny B. Narrowly Tailoring a Statute Criminalizing Encouraging Suicide CONCLUSION INTRODUCTION

Recently, several criminal cases involving individuals who successfully encouraged other people to commit suicide have received prominent media attention. (1) These cases are often quite disturbing. In one recent case, Michelle Carter, a Massachusetts teenager, reportedly encouraged Conrad Roy, her boyfriend, to commit suicide. (2) Her text messages and phone calls went beyond mere encouragement, however, as Carter named specific methods by which her boyfriend could commit suicide and encouraged him to use them. (3) In July 2014:

Carter assisted Conrad's suicide by counseling him to overcome his doubts, devising a plan to run a combustion engine within his truck in order to poison him with carbon monoxide, and ... direct[ed] him to go back in his truck after he exited it, when he became frightened that the plan was working. (4) Carter also told her boyfriend that he would be her "beautiful guardian angel forever and ever (smiley face)" and that she would "always smile up at [him] knowing that [he wasn't] far away." (5)

Similarly, a Minnesota man responded to postings on several suicide websites while "[p]osing as a depressed and suicidal young female nurse." (6) While posting online, William Melchert-Dinkel contacted several suicidal individuals and "feigned caring and understanding to win the trust of the victims while encouraging each to hang themselves, falsely claiming that he would also commit suicide." (7) Melchert-Dinkel also "attempt[ed] to persuade them to let him watch the hangings via webcam." (8) Melchert-Dinkel successfully encouraged at least two people to commit suicide throughout the course of his postings online. (9)

Unlike physician-assisted suicide, which has received a significant amount of legal and academic attention, encouraging suicide has received far less news coverage. (10) Currently, encouraging suicide is not specifically prohibited in many jurisdictions, and jurisdictions that do specifically prohibit it do so through statutes of dubious constitutionality, likely due to the issue's relative obscurity. (11) Many people want this sort of behavior to be illegal, (12) and there are currently a number of methods to charge someone for encouraging another to commit suicide. (13) Most of these options, however, have significant drawbacks. Encouraging suicide cases present extremely emotional issues and a very legitimate question of whether the victim would still be alive but for the encourager's actions. Indeed, encouraging someone to commit suicide can be fatal. (14) These cases often involve people taking advantage of victims who are mentally unstable and susceptible to encouragement to commit suicide. (15) Nevertheless, it is unclear whether encouraging suicide is actually illegal in many jurisdictions. Solving this problem will likely prove difficult, as any legislative solution intended to address the full scope of the problem will encounter potentially fatal problems. (16)

Part I of this Note provides a brief history of attitudes towards suicide in Western civilization and notes that, while society's attitudes towards suicide have changed slightly over time, most still condemn suicide as a practice. Although the act of suicide itself is no longer punished directly, it is still strongly discouraged, as evidenced by continuing suicide prevention efforts and broad criminalization of physician-assisted suicide--although legalization efforts have made some progress. (17) Part II of this Note attempts to define the concept of encouraging suicide and suggests that a bright line demarcating encouraging suicide from other forms of conduct simply does not exist. Part III describes the various types of prosecutions for encouraging suicide that, are currently available to prosecutors, including involuntary manslaughter, prosecutions under specific statutes prohibiting encouraging suicide, alternatively prosecuting encouraging suicide as assisting suicide, and prosecuting under a theory of incitement to commit a crime. Finally, Part IV notes that no current type of prosecution described in Part III passes muster and proposes crafting a new statute to prohibit encouraging suicide directly. Part IV further discusses problems with crafting specific legislation and discusses how best to balance the competing policy interests of discouraging suicide and protecting free speech.

1. SUICIDE IN WESTERN CULTURE

   Throughout Western civilization, suicide has been widely condemned as a practice. (18) Much of the condemnation of suicide has religious roots, as "Christianity since the time of Augustine has declared suicide a violation of the divine injunction against killing." (19) However, "[n]either the Hebrew Bible nor the New Testament prohibits suicide." (20) Although the Bible itself does contain several instances of suicide, the most prominent Biblical suicides were not done out of despair, but were instead done to achieve some sort of purpose. (21) Nevertheless, it is clear that "the religious ban on suicide has remained unquestioned throughout religious history." (22)

   In addition to being widely condemned as a practice from a religious perspective, suicide has historically been subject to steep legal penalties. (23) In the Middle Ages, suicide could be punished with a shameful burial "at the crossroads with a stake through the heart" instead of in a cemetery with traditional religious rites. (24) Suicide was considered "a feio de se, a 'felony against the self'" and someone who committed suicide could "forfeit[] his goods to the state," harming the family he or she left behind. (25) The United States has only decriminalized suicide in the past hundred years, as suicide was held to be an indictable offense as late as 1937. (26) In the past, several states "have held suicide to be a crime but not punishable if accomplished." (27)

   In time, society has grown to recognize that suicide has many causes and has gradually eliminated the severe legal and religious punishments attached to it. (28) Society has instead decided to deal with the issue of suicide in a more rehabilitative manner, with a large variety of resources available to help anyone who is at risk of suicide. (29) For instance, courts have held that prisoners are entitled to mental health treatment and protection from suicide attempts while in prison. (30)

   Nevertheless, the condemnation and stigma attached to suicide have not abated, and society still wants to discourage suicide as an act that has significant negative moral implications. (31) Even though the legal punishments have gradually been eliminated, suicide can still have significant emotional and financial impacts on the surviving family. (32) In addition, as suicide is still widely--but not universally--condemned, many states criminalize conduct by third parties that could lead to suicide, most notably assisted suicide. (33) Recently, the social condemnation of suicide has manifested as prosecutions for encouraging suicide.

2. ENCOURAGING SUICIDE DEFINED

   Specifically defining the concept of encouraging suicide is not a simple task. It is both difficult and fact-intensive to find the line between relatively innocent conduct that society does not want to punish and encouraging suicide, which--as evidenced by the recent trend in criminal prosecutions--society does want to punish. The boundaries between general advocacy for the right to suicide, encouraging suicide, and assisting suicide are extremely blurred, and conduct often does not fit neatly into just one category. Mere advocacy for the right to commit suicide is not something that society generally seeks to punish. Occasionally, some speech can look quite a bit like encouraging or assisting suicide, which are controversial, if not widely condemned, practices. For example, Derek Humphry, the author of the controversial suicide instruction manual Final Exit, "was once accused by an angry young woman of causing the suicide death of her college roommate, who was found dead with an open copy of Final Exit in her lap." (34) Although there is no evidence that Humphry came into direct contact with the roommate, it is easy to see why the young woman might lay some blame at Humphry's feet.

   Final Exit is a 1991 New York Times bestseller that "advis[es] terminally ill people how to commit suicide." (35) The book describes when a person might consider suicide, (36) how to find a doctor to assist in the suicide, (37) and even explains- in great detail--several ways in which someone might commit suicide without a doctor, including asphyxiation in an automobile, (38) suffocation with a plastic bag, (39) and the inhalation of inert gases, such as helium. (40) As the book includes a number of careful statements advising readers to consult with others before deciding on suicide, it is certainly debatable whether Final Exit actually encourages anyone to commit suicide. (41) While "some mental-health experts warned that an explosion of suicides" would follow the publication of Final Exit, this did not appear to be the case. (42) For instance, one study examining the impact of Final Exit on suicides in New York City found that the overall suicide rate in New York City in the year after the book was published did not change. (43) Instead, it appears that the publication of Final Exit may have merely influenced the method by which people chose suicide, as "the number of asphyxiations by plastic bag increased from 8 to 33," an increase of 313%. (44)...