The Precedent of Words as Manslaughter: The Legality of Self-Ownership

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Three years ago, a Massachusetts teen with horrendous eyebrows (and apparently a horrendous soul) encouraged another teen to kill himself via text messages. He did, and she was charged with a crime.

But what crime?

Negligence implies that one has a responsibility under law not to actively encourage suicide, and further requires proof that the boy’s suicide would not have happened without her encouragement (in effect, proving a negative and asking “what if”, which doesn’t exist beyond a reasonable doubt and is impossible to prove). Incitement only involves words that pass the imminent lawless action test, which determines whether a speaker is inciting a “lawless” (illegal) act… but suicide is legal under both federal and Massachusetts law.

Many of the arguments about the legal ruling come down to what limits should exist to the first amendment’s protections of free speech. After all, there are limits that exist in courts of law which aren’t carved out in the Constitution itself. For instance, certain threats, perjury, falsely inciting a panic leading to injury, etc. But, of course, in this case, there was no threat which involved physical action against him. Nobody was under oath, and there’s not even anything said that was provably false.

The difference between words, access, and direct action as it relates to suicide made huge news in the nineties with the trials of Dr. “Death” Kevorkian. In his case, he provided patients with the means to kill themselves time and again, and he was exonerated in the courts time and again. Specifically, he had documented consent before providing suicidal patients with the means to self-administer lethal dosages, all of which was deemed legal by the courts. What he finally was able to be convicted of was different, in that it was a case where he was the one who administered the poison, rather than the patient. There were other factors as well involving the state of his medical license, but in essence what finally made his actions illegal was a direct physical action performed by him personally, rather than merely providing already suicidal individuals the means or motivation to do so.

*IF* suicide is and should be legal under the argument that one owns their own body, then under what rationale should encouragement of that legal act be itself illegal?

Wouldn’t that be similar to prostitution, gambling, drinking, or smoking being legal, but it being illegal to advertise such services? Granted, there are currently restrictions on such advertisements forcing such providers, where these activities are legal, to adhere to a certain amount of transparency and truth in advertisement. After all, most exceptions to the first amendment’s freedom of speech require dissemination of provable falsehood. However, the advisability of suicide is, by it’s nature, a subjective thing not universally agreed upon, rather than something that can be proven true or false.

I’m aware that suicide is, in most respects, much worse, much more final, etc., but the comparisons are valid if you accept the initial premise that suicide should be legal if one owns their own body, because that’s the main argument for other “sinful” activities being allowed.

The major argument against the fact that suicide itself should have been legal in this case, is age of consent. Surely, if the law determines that one’s age is sufficient basis to determine their ability to consent to entering into contracts, smoking and drinking, viewing porn, joining the army, or voting, it should apply a consistent standard to the practice of suicide. This isn’t necessarily an argument for her conviction, however. Although it’s true that diminished capacity based upon his age probably played a factor in his decision to commit suicide, and his susceptibility to her argument that he should… it equally follows that her age provided diminished capacity in her decision to encourage it.

Daniel Medwed, professor of law and criminal justice at the Northeastern University School of Law, spoke out on the unusual nature of the conviction.

“This idea that words can kill is a very controversial one because the criminal law typically punishes physical action. … The drunk driver who plows into somebody or a person who shoots a gun, where you’re consciously disregarding a huge risk,”. He went on to say “I think Massachusetts needs a specific statute that criminalizes encouraging or coercing suicide”, which would be quite the statute if suicide itself remains legal.

The ACLU and other civil liberties groups have expressed similar concerns, not necessarily for Michelle Carter, but for the precedence this case sets.

The crime that she was convicted of was involuntary manslaughter. Manslaughter is a charge which is closely related to murder, but in simplistic terms is kind of murder-lite. Specifically, it’s an act of homicide where the perpetrator is considered less culpable, at least as a matter of language, and, at least in essence, legality generally agrees. Oftentimes, such a law applies to cases such as drunk driving, or reckless discharge which results in the death of another but was not specifically intended. But, of course, no homicide occurred, given by definition homicide is the act of one person killing another.

Matthew Segal, legal director of the ACLU of Massachusetts, chimes in with…

“While Mr. Roy’s death is truly devastating, it is not a reason to stretch the boundaries of our criminal laws or abandon the protections of our constitution,” and continues by saying

“There is no law in Massachusetts making it a crime to persuade someone to commit suicide, and there should not be any sentence handed down against Ms. Carter for involuntary manslaughter because her conviction for that crime is improper. It exceeds the limits of our criminal laws and violates free speech protections guaranteed by the Massachusetts and U.S. Constitutions.” – Matthew Segal

Michelle Carter was sentenced to two and a half years, of which she’s expected to serve fifteen months, and five years of probation. The judge also granted a motion that could keep her out of jail until she’s exhausted her appeals.

This case presents several different questions. There are legal ones, which I’ve highlighted here. There are moral ones. In this case, if you read her text messages, no words are needed to express the revulsion one would naturally feel. Should law mandate that we act as our brother’s keeper, or merely that we don’t do direct harm? Should words and actions be seen as interchangeable, or even comparable… or are sticks and stones a different category? Should a person’s pre-existing depression be morally or legally a factor? And finally, there is the simple question… who is responsible for us? Government? Our close confidants? Society?

Or does the primary responsibility for us… lie within ourselves?

Gary Doan

Gary Doan

Obviously, he's a guy in front of a keyboard. He uses it to make money through the stock market for his career, but more importantly he uses it to tell other people on the internet how they're wrong, post dank memes, and stay in a constant state of research about economics, law, and history. He lives in a town called Salem in a geodesic dome with his lovely wife, lovely children, regrettable pets, and some random Sanders supporter that lives in his attic and drinks all his booze. He enjoys logic, snark, satire, tattoos, learning, and obviously writing and liberty (even of the viral variety).
Gary Doan
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