TURNING SUICIDE INTO HOMICIDE: CAN YOU BE BOUND BY YOUR TEXT MESSAGES?

• Author: Connors, Jenna

1. Introduction

   Suicide is the second leading cause of death for children and adolescents, according to The American Academy of Child & Adolescent Psychiatry. (1) It leaves many unanswered questions and a myriad of emotions with the family and friends of the person who makes that ultimate decision. (2) There is also a strong correlation between the use of technology and mental health issues, especially in adolescents. (3) The untimely death of Florida native Conrad Roy Ill ("Roy") has proven to be no different and has fostered heated debates throughout the country. (4) In July 2014, Roy committed suicide by suffocating himself with carbon monoxide in his truck in a Kmart parking lot. (5) Although his death was deemed a suicide, his girlfriend, Michelle Carter ("Carter"), arguably played a significant role in Roy's death, starting months before and up until moments before his death. (6) The text messages found on Carter and Roy's cell phones led to her indictment for involuntary manslaughter in February 2015. (7)

   The background of their relationship was a bit different than many would assume. (8) In 2012, Carter and Roy met while visiting relatives in Florida. (9) However, most of their relationship consisted of conversations and communications via texting. (10) Carter's role in Roy's suicide was noticeable through the text messages she sent to him. (11) It was clear that Carter was aware of Roy's desperation and history of mental illness. (12) The lack of clarity in this emotional case, however, lies in the criminal implications of Carter's words. (13)

   Part II of this Note examines the specific law of Massachusetts behind Commonwealth v. Carter and how the Commonwealth obtained a conviction. (14) Part ii then explains cyberbullying laws nationwide and their application to the First Amendment. (15) Lastly, Part II addresses the Supreme Court's stance on assisted suicide and how this law relates to Massachusetts' lack thereof. (16) Part III discusses the lengthy history of Commonwealth v. Carter from her indictment to the Bristol County Juvenile Court's finding, to the most recent direct appeal decision to the Supreme Judicial Court ("SJC"). (17) Part IV analyzes how this case of first impression could have rippling effects in other areas of law. (18) Finally, Part V evaluates why the link between Carter's culpability, cyber communications, and prosecutorial discretion could change the future of the legal world. (19)

2. History

   In Massachusetts, a charge of involuntary manslaughter requires the Commonwealth to prove that wanton or reckless conduct or wanton or reckless failure to act caused the death of a victim. (20) This rule of law has withstood the test of time for more than seventy years since Commonwealth v. Welansky was decided by the highest state court in Massachusetts, the SJC, in 1944. (21) Consistently, charges for manslaughter in Massachusetts have strongly depended on the facts of each case. (22) The SJC has even gone so far as to rule that a defendant need not even be physically present or commit a physical act. (23) In the context of modern-day, this non-requirement of a physical act or presence has been applied to harassment or cyberbullying via technology, such as cell phones. (24)

   Criminal liability requires a guilty mind, or mens rea. (25) Mens rea is defined as "the mental state of the person under discussion at a given time, particularly the person's beliefs, purpose, and expectations that are relevant to some legally significant action or inaction by that person." (26) In Massachusetts, convictions of manslaughter require the Commonwealth to prove wanton or reckless conduct as the mens rea (21) The meaning of the word "conduct" in criminal law seems clear under Massachusetts case law, whether it involves an affirmative act or a failure act. (28) Mens rea has a subjective element relevant to that individual's mindset at the time the act is committed. (29) In addition to an affirmative act, a failure to act can also result in a conviction for manslaughter as wanton or reckless conduct. (30)

   Although an intervening cause may relieve the defendant of criminal liability, the intervening cause must be the sole cause, not merely a contributing cause, in order to defeat a conviction of involuntary manslaughter. (31) Additionally, an intervening conduct or cause that is "reasonably foreseeable" also will not relieve the defendant of criminal liability. (32) For example, a defendant can be found criminally liable where an "intervening cause," such as a third party attempting to grab a loaded firearm from the defendant and shooting the victim, whether or not he or she knew the gun was loaded. (33) Situations such as this, again, bear on the defendant's state of mind and the sequence of events leading up to the shooting. (34)

   In order to protect constitutional rights, courts will apply the Rule of Lenity to ambiguous criminal statutes. (35) "The Rule of Lenity is a rule of statutory construction, according to which a criminal statute that is sufficiently ambiguous that it cannot be said exactly what conduct is barred must be read in the light more favorable to the defendant." (36) The protections afforded by statutory interpretation principles are grounded in due process rights and prosecutorial discretion to charge. (37) With regard to juveniles specifically, the rule "may be applied when a statute can plausibly be found to be ambiguous to give the juvenile the benefit of the ambiguity." (38) It is not a "rigid requirement" to interpret a statute in a manner most favorable to defendants in every case, and also requires application of an actual statute. (39) The rule does, however, have a different application to the First Amendment. (40)

   Laws specifically regarding text messages stem from the aspect of whether a person is physically present or aware enough of the consequences of his or her words. (41) A "text message" is defined as "a short message sent electronically usually from one cell phone to another." (42) In the context of civil liabilities, courts have found that text messages can create legally binding contracts. (43) In St. John's Holdings, LLC v. Two Elecs., LLC, the Massachusetts Land Court found that the text message exchanges between two companies to secure a sale of real estate were sufficient to satisfy the Statute of Frauds. (44) Although civil and criminal liability are very different, it is becoming increasingly important to be aware of what one says via text message, as there is much litigation involving discovery of text messages and other electronic exchanges. (45)

   Many courts have questioned the validity of charges and convictions for cyberbullying and harassment via text messages and other social media outlets. (46) Appeals and reversals of charges or convictions have usually been based on the freedom of speech protected by the First Amendment. (47) Restrictions on speech are to be applied equally to all new media and forms of communication that society makes available. (48) Therefore, in order to protect First Amendment rights, a statute must be still be content-neutral and survive strict scrutiny. (49) Most courts, however, have not ruled that free speech is still protected when the defendant, or speaker, has been charged with manslaughter. (50)

   Criminal liability through text messages and other social media and electronic platforms are prominent in cyberbullying issues. (51) "Cyberbullying" has been defined by courts as "willful and repeated harm inflicted through the use of computers, cell phones, and other electronic devices." (52) Cyberbullying has led to many serious issues, such as suicide, especially in younger people. (53) For example, in october 2006, a 13-year-old girl named Megan Meier committed suicide after a "cyber hoax" in which the mother of Megan's former friend created a fictitious MySpace profile to learn about what Megan was saying about her daughter. (54) Somehow the conversation between the mother and Megan became hostile and, as a result of many communications, Megan committed suicide. (55) Situations, such as Megan's, have compelled many states to enact anti-bullying laws. (56)

   Cyberbullying and First Amendment issues overlap because many school districts attempt to balance the free speech of students with the necessity to maintain an effective and safe learning environment for children and adolescents. (57) In Tinker v. Des Moines Indep. Cmty. Sch. Dist., (58) the Supreme Court notably decided on the extent of First Amendment rights of schoolchildren. (59) However, First Amendment rights of students in school yards differ from First Amendment rights related to cyberbullying and words transmitted over the internet. (60) Since Tinker was decided in 1969, these freedom of speech issues have leaked into homes and affected children in different ways through the internet, social media, and text messaging. (61) In addition, the Supreme Court has "dealt with anonymity and First Amendment rights issues in previous Supreme Court decisions where it found that an author may remain anonymous under the First Amendment, and restrictions on political speech must pass the strict scrutiny analysis." (62)

   Despite legislative and judicial attempts to protect citizens from cyberbullying, it is unclear how constantly changing technologies should apply to the First Amendment. (63) More specifically, many courts and legislatures have not addressed the First Amendment implications when cyberbullying leads to the death of a victim. (64) In Massachusetts, however, there is not a specific statute prohibiting "aiding or assisting a suicide attempt." (65) Instead, prosecutors have proceeded under a theory of manslaughter, which is not defined in the Massachusetts manslaughter statute, but instead is derived from the common law meaning of "manslaughter." (66)

   The Supreme Court has recognized assisted suicide as a "protected liberty right." (67) In Washington v...