I. Introduction
On July 12, 2014, 18-year-old Conrad Roy drove to a K-Mart, assembled a gasoline-powered water pump in the back seat of his truck, and poisoned himself with carbon monoxide.Footnote 1 In the week leading up to Roy’s death, his 17-year-old girlfriend, Michelle Carter, researched methods for committing suicide, pressured him, and counseled him to overcome his fears.Footnote 2 At times when Roy changed his mind about his desire to kill himself, Carter complained that he always had an excuse for not following through. On the night that he died, Roy was on the phone with Carter for 47 minutes.Footnote 3 In a panic after his death, Carter texted a friend that Roy had gotten out of the truck after he got scared and she ordered him back in.Footnote 4 The court focused on how Carter took advantage of Roy’s mental vulnerability; he had been treated for depression for several years following a suicide attempt several years prior.Footnote 5 Knowing he was suicidal, Carter used her words to cultivate an environment likely to result in harm to Roy, which established a duty to prevent such injury.Footnote 6 Rather than mitigating the danger or rendering aid, however, she allowed him to proceed, later texting a friend, “I could’ve easily stopped him or called the police, but I didn’t.”Footnote 7 By taking advantage of Roy’s diminished capacity for choice and subsequently failing to rescue, Carter’s words played an integral role in his death. The Commonwealth argued that Carter’s “wanton and reckless conduct” resulted in a high likelihood that “substantial harm would result to another,” thereby satisfying the elements for involuntary manslaughter.Footnote 8 Based on the determination that a “reasonable person would have realized that they could have influenced Roy to kill himself,” Carter was convicted of involuntary manslaughter in juvenile court in Massachusetts.Footnote 9
What if Carter had instead given Roy a book explaining how to commit suicide, such as Five Last Acts—The Exit Path to guide him? Five Last Acts is an informational guide to suicide.Footnote 10 In the 800-page book, the author provides suicide methods and includes the pros and cons of each approach, as well as photos and diagrams to ensure a successful attempt. Other books and websites exist to provide similar guidance and instruction as well.Footnote 11 Would Carter’s liability in Roy’s death differ if she instead gave him a book and bookmarked the chapter on carbon monoxide poisoning? While Roy had already found information online regarding carbon monoxide as a potential suicide method, Carter shared additional research as to how to effectively take his own life.Footnote 12 What if she had relayed him to a pro-suicide website that did the same thing?
As cell phones, computers, and social media have created environments ripe for harmful speech, there is a need to reconsider whether this type of information should be readily available to the public. While it is unclear how Michelle Carter learned about the specifics of carbon monoxide poisoning (among other methods), one can assume that she found the information on the internet or in a book similar to Five Last Acts. Without access to this information, it is less likely that Carter could have convinced Roy to take his own life.
There exists a careful distinction between legal and illegal conduct in this area of the law because there is a meaningful difference between abstract speech and accessory liability for a death.Footnote 13 Assisting or encouraging suicide raises the legal questions of intent and foreseeability, while also implicating the constitutional right to free speech. This paper will attempt to locate the fine line of criminal liability when assisting someone with suicide, with a focus on distinguishing Commonwealth v. Carter Footnote 14 from the book Five Last Acts. Footnote 15 In addition, this paper will discuss the possibilities for mitigating harm from the publications and speech that enable these suicides. The cyber environment facilitates this public health problem, and steps should be taken to mitigate further assisted suicides. This must be done carefully, however, as to not chill the freedom of speech and violate the First Amendment.
As the law exists currently, it is difficult, if not impossible, to hold authors accountable for their contributions to suicides. Mitigation would come at the expense of First Amendment freedoms, which to many is not an acceptable tradeoff. The victims affected are especially vulnerable and deserve protection, but any action taken must be balanced with individual liberty. Examples of potential interventions will be described throughout. By simply identifying more precisely where the line of criminal liability for encouraging or assisting suicide falls, there may be a positive effect on public health. For instance, someone may think twice about “helping” a friend commit suicide if they are aware of the consequences.
Section II provides an explanation of suicide assistance as a public health issue. Section III describes the criminalization of suicide, both historically and in the modern day. This section will provide examples of suicides (1) through physical assistance, (2) by remote communications, and (3) through static publications in books or online. Section IV will explain the First Amendment protections of pro-suicide speech. Lastly, Section V will conclude with final thoughts and offer future directions, bearing in mind the preservation of the individual right to free speech.
II. Suicide Assistance as a Public Health Problem
Suicide is the eleventh leading cause of death in the United StatesFootnote 16 and the third leading cause of death among young people.Footnote 17 Depression and other mental disorders are considered contributing circumstances or risk factors for suicide.Footnote 18 Stressful life events and stressors such as bullying may contribute to suicide risk as well.Footnote 19 Unfortunately, from its associated neurobiology and pathophysiology, little is understood about suicide and what makes suicide prevention programs effective.Footnote 20 The “inability to predict suicide likely stems from the strongly opportunistic nature of suicide among adolescents, because feelings about suicide require a unique constellation of opportunity factors to be realized.”Footnote 21 Evidence-based interventions are available to help those at risk, but it is difficult to tell who will act on suicidal thoughts.Footnote 22
Some research correlates the vocalization of suicidal ideations with an increased likelihood of an attempt; some type of suicidal communication precedes about eighty-percent of adolescent suicide attempts.Footnote 23 However, other researchers discovered that “telling someone about the suicide plan” had no impact on the medical severity of the attempt.Footnote 24 Furthermore, additional investigators identified a higher risk for lethality with less communication of suicide plans.Footnote 25 Regardless, in instances where teens do express ideations but their feelings are invalidated, their likelihood for attempting suicide increases.Footnote 26 Thus, where friends or family encourage the suicide as opposed to assisting the individual in seeking mental health assistance, there may be an increased risk of attempt. This increased risk of a suicide attempt supports the need for stricter restrictions on pro-suicide speech.
In addition to suicide as a problem on its own, assisting suicide poses an additional public health concern. Research focuses on “the critical unknown,” which is “that factor (or factors) that differentiates the person with mental illness who does not commit suicide from the person with mental illness who eventually completes suicide.”Footnote 27 Assistance or encouragement have the potential to be one of those factors. The World Health Organization (WHO) emphasizes that “most people who engage in suicidal behavior are ambivalent about wanting to die, and suicides can be impulsive responses to acute stressors.”Footnote 28 A person contemplating suicide may follow through when given directions or support from an outside force. Because those who assist with suicide intervene at a critical tipping point, their involvement poses a perilous scenario.
Technology makes it easy to hide behind a computer or phone screen and encourage harmful behavior.Footnote 29 To analogize, in the military, some may say it is easier for someone to kill while remotely piloting a drone than it is to pull the trigger on the battlefield.Footnote 30 A similar type of moral disengagement occurs behind a computer screen.Footnote 31 The physical detachment between the two parties removes the reality and emotion.Footnote 32
Where involvement in the suicide is apparent, those like Michelle Carter have the potential to be convicted. However, the question remains: where did Carter get the instructions for carbon monoxide poisoning that ultimately contributed to Roy’s death? Those who provide the information to facilitate suicide are a degree removed from the death and, as such, are often afforded protection from criminal liability. Yet, without them, some deaths may not occur. By providing easy-to-access and easy-to-follow information, pro-suicide books and websites may be the deciding factor for those contemplating whether to act on suicidal ideations. Research suggests that the incidence of suicide can be lowered in many ways: by decreasing the availability of means, increasing crisis intervention programs available, treating psychiatric illness, among others.Footnote 33 In the case of assisted suicide, there exists an additional angle for intervention. Approaching suicide prevention by banning outsiders’ help could be a unique tactic for mitigation. This paper will discuss whether these authors should be held accountable.
III. Assisting Suicide as a Crime
At the most fundamental level, a crime requires (1) a guilty mind and (2) a guilty act.Footnote 34 For a crime to take place, one must have the mindset or mens rea, and then perform the prohibited act, or actus reus. Footnote 35 Criminal statutes define the elements needed to fulfill the offense, including the required mens rea. Footnote 36 Some crimes, like first degree murder, require purposeful, malicious intent.Footnote 37 Other crimes, such as involuntary manslaughter, require recklessness which is a lack of regard for the consequences of one’s actions.Footnote 38 For Michelle Carter, the Commonwealth had to prove Carter committed an unlawful homicide unintentionally caused by an act (actus reus) which constituted such a disregard of probable harmful consequences to another as to amount to wanton or reckless conduct (mens rea).Footnote 39
Historically, suicide was considered murder.Footnote 40 Because the murderer was dead, however, they could not be penalized directly. Instead, the punishment was the forfeiture of personal property to the king, thereby penalizing the decedent’s family.Footnote 41 In some instances, assisting in suicide was considered murder as well.Footnote 42 However, this type of killing could be prosecuted as aiding and abetting, as opposed to outright murder.Footnote 43 Those physically present at the scene of the suicide were charged more harshly than those who were not.Footnote 44
Such harsh punishments did not translate from English law to the colonies.Footnote 45 Originally, a majority of the American colonies retained the common law classification of suicide as a felony.Footnote 46 However, beginning in the late 1700s, states eliminated penalties for suicide one by one.Footnote 47 The rationale for such eliminations was evidenced in a 1796 treatise by Zephaniah Swift, which explained that states eliminated the legal prohibitions against suicide to avoid punishing the victim’s family and not because that individual had a right to kill himself.Footnote 48
Today, only South Carolina and Alabama still consider suicide a crime, although there has been no prosecution for suicide in these states.Footnote 49 Assisting suicide, however, has remained a crime.Footnote 50 Others propose that, under common law, accountability for assisting suicide is established under a theory of accomplice liability.Footnote 51 Assisting suicide extends liability for the conduct of another. It is important to recognize that accomplices can be punished just as harshly as the principal perpetrators they assist.Footnote 52
“Today, when an accomplice assists in the commission of an offense, the accomplice becomes derivatively responsible for that crime, even though someone else … committed it.”Footnote 53 The actions required for accomplice liability can be traditional aiding and abetting, but also “counseling … advising … [or] ordering,” more generally.Footnote 54 As such, the accomplice does not need to be present at the scene.Footnote 55 Regardless, the accomplice must intend to help, though “intent” means different things in different jurisdictions.Footnote 56 For example, the Model Penal Code (MPC), adopted by some states, says that an accomplice must act “with the purpose of promoting or facilitating the commission of the offense.”Footnote 57 In contrast, other states only require knowledge that their actions will assist in the commission of the crime.Footnote 58
Over time, assisting suicide shifted from that of murder to manslaughter, reflecting a change in the “moral values of the present day.”Footnote 59 Massachusetts, for instance, once considered assisting suicide as murder, but has since altered their perspective, considering it to be more aligned with involuntary manslaughter.Footnote 60 At common law, involuntary manslaughter is the “unintentional killing of another with a … conscious disregard of … a substantial and unjustifiable risk.”Footnote 61 Like Massachusetts, states may choose to adopt these common law elements of involuntary manslaughter or they may alter them in their statutory code.
In many states, however, there is no need to rely on murder or manslaughter statutes because there are specific statutes for assisting suicide.Footnote 62 As of 2021, forty-two states had laws criminalizing suicide coercion.Footnote 63 The MPC, designed to guide state legislatures in adopting uniform laws, treats “causing suicide” as criminal homicide if the defendant “purposely causes such suicide by force, duress, or deception.”Footnote 64 A person who “purposely aids another to commit suicide is guilty of a felony in the second degree if his conduct causes such suicide.”Footnote 65
After Michelle Carter’s case, the legislature attempted to pass Conrad’s Bill.Footnote 66 If passed, the bill will codify coerced suicide as its own crime, separate from involuntary manslaughter, punishable by up to five years in prison.Footnote 67 The law will require the defendant to know of another’s “propensity for suicidal ideation” and “intentionally … encourage that person to … commit suicide.”Footnote 68
Among the dozens of assisting suicide statutes that exist, there are several theories of liability that underpin each. In some jurisdictions, physically providing the means is required (e.g., Arizona, Oklahoma, South Carolina, Idaho),Footnote 69 whereas “aid” or “assistance” may suffice in others (e.g., Pennsylvania, New York, Texas, Wisconsin),Footnote 70 or “duress” in others still (e.g., Kansas, Maryland),Footnote 71 and some may only require “encouragement” (e.g., Arkansas, South Dakota).Footnote 72 Whether information about suicide methods constitutes encouragement or the promotion of suicide is decided on a state-by-state basis. While Michelle Carter’s conviction points towards acceptance of speech alone as sufficient encouragement,Footnote 73 the decision in State v. Melchert-Dinkel directly conflicts.Footnote 74
Some states have statutes that are short and simple to apply, like the MPC. For instance, in New Mexico, “assisting suicide consists of deliberately aiding another in the taking of the person’s own life.”Footnote 75 In South Dakota, a person aids and abets suicide when they “intentionally in any manner advise, encourage, abet, or assist another person in taking or attempting to take his own life.”Footnote 76 In Arkansas, one commits the offense of encouraging suicide if “the person uses persistent language, either spoken or written, to purposely encourage another person to commit suicide,” and “as a proximate result of the [encouragement]” they make or complete such attempt.Footnote 77 Other states have more elaborate laws. In Illinois, a person commits inducement to commit suicide when he:
knowingly coerces another to commit suicide and the [victim] commits … suicide as a direct result of the coercion, and [the non-victim] exercises substantial control over the [victim] through (i) control of the [victim’s] physical location or circumstances; (ii) use of psychological pressure; or (iii) use of … religious, political, social, philosophical, or other principles.Footnote 78
Here, rather than “assisting,” the defendant must have acted in a more specific way. Not only does the defendant need to knowingly coerce the victim, but they also must exercise substantial control over them leading to suicide as a direct result. On one hand, the numerous “options” for assisting seemingly provide multiple avenues for liability. On the other, the distinct and precise language limits flexibility in the types of behaviors that can be charged, as opposed to a statute that merely requires “assistance.” Here, encouragement by text or phone call might satisfy the required elements, whereas a statute that enumerates different kinds of assistance may inadvertently exclude communications such as instant messaging.Footnote 79
Lastly, it is important to mention that in addition to assisting suicide statutes that criminalize involvement, there is also medically assisted suicide, which is currently legal in ten states, as well as the District of Columbia.Footnote 80 While the statutory specifics differ by jurisdiction, in Oregon and the District of Columbia for example, terminally ill individuals with fewer than six months to live can voluntarily request prescription medication to hasten death.Footnote 81 Prescribing physicians are immune from liability if they adhere to the statutory requirements.Footnote 82 These cases are exempt from discussion in this paper.
Determining a person’s level of culpability depends on their involvement in the suicide. Someone may provide physical assistance by mercy killing or by purchasing a weapon, while others may coach or convince the suicidal party in real-time from afar by phone. There are infinite ways in which someone could involve themselves in another’s suicide. Criminality is fact dependent. Identifying how aware an individual is of another’s mental state is difficult to prove.
1. Physical Assistance: Murder
In cases where friends and family members have “assisted” in suicides, for instance, by pulling the trigger when someone begs to be killed, they have been held liable for murder. For example, in Florida, in Gilbert v. State, a husband was found guilty of first-degree murder for shooting his wife of fifty-one years to “end her suffering” from osteoporosis and Alzheimer’s Disease.Footnote 83 He testified that she begged him to “help her” and he was the only one who could.Footnote 84 Because he deliberately thought out the killing before acting, the elements of first-degree murder were satisfied.Footnote 85
In New Mexico, in State v. Sexson, the defendant was convicted of second-degree murder for “holding a gun to the victim’s head and pulling the trigger.”Footnote 86 The existence of a suicide pact between the victim and defendant was irrelevant.Footnote 87 The defendant admitted to holding the gun in a position “calculated to assure the victim’s death.”Footnote 88 The court found that, “that action transcends merely providing the victim a means to kill herself and becomes active participation in the death of another.”Footnote 89 The evidence that the defendant actively performed the act resulting in death was sufficient to support a murder conviction, rather than a conviction for assisting suicide. Where the “assisting” individual is the direct cause of the death, the death is considered a homicide.Footnote 90
In other instances, the assistant may not perform the killing but may provide the weapon. Suppose the assistant supplies a gun or mixes a poison for consumption at the victim’s request while knowing the victim’s suicidal intent. In that case, they may be held liable.Footnote 91 For example, in Persampieri v. Commonwealth, the defendant loaded the gun for his wife and “made suggestions that would make it easier for her to discharge the gun.”Footnote 92 The affirmative act of loading the gun and encouraging the suicide were enough to indict the defendant with murder.
In People v. Roberts, the defendant was convicted of murder for making a “potion of water and poison.”Footnote 93 There was no dispute that his wife asked him to do it, that she took the glass, and drank from it.Footnote 94 Here, there was a direct causal link between the assistant’s actions and the death. In 1920 when the case was decided, the court differentiated between principal and accessory accomplice liability.Footnote 95 Suicide was not considered a crime, and so the defendant argued that he did nothing illegal.Footnote 96 Rather than an accessory to her suicide, the court held that the defendant was guilty of murder as principal in the first degree.Footnote 97 Since he mixed the poison and deliberately placed it within her reach, the elements for murder were satisfied, even though she requested the drink.Footnote 98
Lastly, Final Exit Network (FEN)Footnote 99 is a nonprofit, right-to-die organization that has been a defendant in three notable prosecutions: the 2007 death of Doreen Dunn in Minnesota, the 2007 death of Jana Van Voorhis in Arizona, and the 2008 death of John Celmer in Georgia.Footnote 100 In these cases, the organization assigned “guides” to meet with and interview the clients.Footnote 101 They coordinated their suicides, provided the materials and “blueprints,” and attended the deaths.Footnote 102 For Dunn’s death, a jury convicted FEN of assisting suicide for speech that enabled the suicide and removing the helium tanks that she used from the scene of her death.Footnote 103 The court reasoned that Dunn had fine motor skill deficits, rendering her unable to drive, so the absence of the materials necessary for her death by helium asphyxiation “reasonably support[ed] an inference that [the FEN guides] procured or assembled the materials for her, thereby assisting her suicide.”Footnote 104 FEN guides then concealed their efforts afterward, further demonstrating their active involvement, which was sufficient for the jury to determine guilt.Footnote 105
Physical assistance is sometimes a requirement to satisfy assisting suicide statutes as well, unlike outright murder or manslaughter.Footnote 106 For example, in Oklahoma, a person violates the Assisted Suicide Prevention Act when one “provides the physical means” or “participates in a physical act” by which another person commits or attempts to commit suicide.Footnote 107 Numerous states do not require such active participation to satisfy their assisting suicide statutes.
It is important to note that psychological literature calls attention to the idea that “suicide assistance may well be a response to coercion and manipulation exerted by the suicide ‘victim’ against the assailant” but “current suicide statutes take no account of this possibility.”Footnote 108 The law punishes the assisting party regardless of why they participated. In these examples, assistance is clear through the affirmative actions taken at the scene of the suicide. The steps that the defendants took to “help” their victims were purposeful, intentional, and unequivocal contributions to the victims’ deaths. Where the defendant affirmatively and intentionally provides the means for the suicide, the defendant is charged with murder even though the victim “may have wanted to die anyways.”Footnote 109 Physical assistance in these types of scenarios typically satisfies the elements of murder.
2. Commonwealth v. Carter: Manslaughter
The difference between physically assisting a suicide and Commonwealth v. Carter is that Carter did not perform any physical act to kill Roy. Instead, she coached him via telephone from over thirty miles away and was complicit in him carrying out his suicide. Nonetheless, their conversation occurred in real time.Footnote 110 When Roy exited the truck after he became scared, Carter told him to get back in.Footnote 111 He did, and died as a result. The evidence demonstrated that Carter wanted Roy to die.Footnote 112 In the days leading up to his death, she said:
I thought you wanted to do this. The time is right and you’re ready, you just need to do it! You can’t keep living this way. You just need to do it like you did last time and not think about it and just do it babe. You can’t keep doing this every day.Footnote 113
The Commonwealth considered Carter’s actions and persuasion “integral to a criminal course of conduct.”Footnote 114 Though distant, her active role by telephone ultimately caused his death, as there was a high degree of likelihood that substantial harm to Roy would result.Footnote 115
Carter was not the first to face criminal liability for coaxing someone’s suicide through telephone or instant messaging communication. In Minnesota, in 2014, in State v. Melchert-Dinkel, forty-eight-year-old William Francis Melchert-Dinkel posed as a depressed and suicidal female nurse online and responded to posts on pro-suicide websites.Footnote 116 After Melchert-Dinkel’s advice, Mark Drybrough in England and Nadia Kajouji in Canada each killed themselves.Footnote 117 The victims asked Melchert-Dinkel about methods of suicide and in response Melchert-Dinkel described different means of committing the act.Footnote 118 Drybrough ultimately followed Melchert-Dinkel’s advice to commit suicide by “tying a rope to a doorknob and slinging the rope over the top of the door.”Footnote 119 As for Kajoiji, Melchert-Dinkel provided advice as to why hanging was a superior method to her plan of jumping into the river and drowning.Footnote 120 Because the defendant intentionally advised and encouraged the victims by providing them with instructions and “repeatedly urged hanging as the ‘best and surest method,’” the trial court found him guilty of advising, encouraging, and assisting suicide in both cases.Footnote 121 While his original conviction was overturned following a finding that the statute he was convicted under was unconstitutional, he was convicted again on remand for Drybrough’s death for materially “assisting” suicide by providing information to his victim, as opposed to “advising or encouraging” suicide.Footnote 122 Similar to Carter, Melchert-Dinkel purposely took advantage of a specifically targeted, vulnerable individual.Footnote 123
As for his involvement in Kajouji’s death, the district court initially found Melchert-Dinkel guilty of both assisting and attempting to assist her suicide, but the Appeals Court of Minnesota reversed.Footnote 124 Because her chosen method for suicide was different than what Melchert-Dinkel had recommended and counseled, there was not any “substantial step of assistance” for her suicide necessary to satisfy the elements of the crime and uphold the conviction.Footnote 125 The court determined that “the evidence [did] not support the [court’s] conclusion that Melchert-Dinkel ‘did more than merely prepare to give assistance’ to Kajouji through ‘detailed and specific’ instructions for committing suicide by hanging.”Footnote 126 The difference between Melchert-Dinkel’s involvement in the two suicides is that he provided concrete steps for Drybrough to follow, which Drybrough did, but in Kajouji’s case, he only suggested hanging as a more reliable alternative than her current plan of drowning.Footnote 127 Ultimately, Kajouji did not act upon Melchert-Dinkel’s advice when she took her own life; she committed suicide by the original plan that she had developed and outlined.Footnote 128 She appreciated but disregarded Melchert-Dinkel’s advice,Footnote 129 rendering his involvement in her suicide unable to reach criminality under the Minnesota statute. This case highlighted the key distinction between providing information versus assistance and the difference in the legal ramifications for each.
In another instance, on December 23, 2021, Boston College student, Inyoung You, plead guilty to involuntary manslaughter for the death of her boyfriend, twenty-two-year-old Alexander Urtula.Footnote 130 In 2019, Urtula jumped from a parking garage in Roxbury, Massachusetts, after You sent him text messages urging him to kill himself.Footnote 131 Authorities alleged that You instructed Urtula to kill himself hundreds of times over the course of their relationship and that she exercised “total control” over him.Footnote 132 In a press release, investigators stated that You was “aware of [Urtula’s] spiraling depression and suicidal thoughts that her abuse had brought on, but she persisted in encouraging Urtula to take his own life.”Footnote 133 The indictment alleged that You’s behavior was “wanton and reckless and resulted in overwhelming Mr. Urtula’s will to live.”Footnote 134 Though You did not contribute to Urtula’s death in the sense that she physically harmed him, her increasingly aggressive encouragement for suicide through her text messagesFootnote 135 ultimately led to his death.
In these cases, the defendant was not physically present to coax the suicide, but assisted through speech via phone, text, or e-mail.Footnote 136 The encouragement for suicide was targeted at one person — or in Melchert-Dinkel’s case, two people — with the intent that they act upon the instructions provided.Footnote 137 There was active two-way communication between the parties that directly contributed to the deaths. A link could be ascertained to establish criminal liability.
This causal link is often the most challenging element to establish. The suicide victim commits the traditional actus reus by taking their own life, often leaving the assister without clear causal responsibility. However, assisting suicide statutes are commonly written to not require such clear cause-and-effect accountability; verbal encouragement may suffice, though courts have been hesitant to accept non-material help alone as sufficient for liability.Footnote 138
For example, in Pennsylvania, the aiding suicide statute provides that “a person may be convicted of criminal homicide for causing another to die by suicide only if he intentionally causes such suicide by force, duress or deception” but further states, “a person who intentionally aids or solicits another to die by suicide is guilty of a felony of the second degree if his conduct causes such suicide or an attempted suicide.”Footnote 139 The explicit distinction here demonstrates two theories of liability which hinge on the level of causality that can be established between the victim and the assister.
Nonetheless, where the statutes permit prosecution based on “encouragement” alone, the penalties do not appear to rival those of traditional homicide cases.Footnote 140 And even in Carter’s manslaughter prosecution, her sentence, to some, appeared shockingly light.Footnote 141
3. Five Last Acts: No Crime
There is a meaningful difference between real-time remote assistance and guides provided on a fixed, static medium. Five Last Acts, authored by Chris Docker, the director of Exit, is a step-by-step instructional manual providing methods for committing suicide.Footnote 142 Docker aims to serve as a guide. He provides suicide diagrams and shopping lists, to name a few.Footnote 143 He encourages practice before an attempt.Footnote 144 However, in the introductory chapter, the text warns, “[i]n Britain and most countries, it is perfectly legal to buy and own this book. But, if you do pass it on or show it to someone who with your knowledge is at that point thinking of taking their life, you could, in certain circumstances, be open to prosecution.”Footnote 145
Suicide information is not limited to Five Last Acts. Other books and websites are available.Footnote 146 In fact, the number of pro-suicide websites increased substantially between 2007 and 2014.Footnote 147 These websites, “many of which provided explicit how-to information,” tripled during that time period.Footnote 148 Sites include personal blogs, public discussion forums, or both. These “web spaces not only allow direct exchange of such information between suicidal individuals, but also have the potential to encourage those ambivalent about suicide to make suicide plans or form suicide pacts with strangers.”Footnote 149
Recently, journalists with the New York Times investigated one particular website that could be linked to at least forty-five members’ deaths.Footnote 150 The website receives roughly 6,000,000 monthly views; half of its members are under twenty-five-years old.Footnote 151 Among the most viewed posts are “goodbye threads,” documenting suicides in real-time.Footnote 152 However, like Docker in Five Last Acts, the site comes with a disclaimer: do not assist and encourage.Footnote 153 Instead, users are instructed to provide “‘factual information’ and ‘emotional support.’”Footnote 154 Without “assistance,” causality of the death is severed, leaving the only opportunity for liability to be through the criminalization of providing information. This is a slippery slope that would have a broad chilling effect on free speech. The chilling effect should not be taken lightly, though it must be balanced with the consideration that the primary users of the website are a vulnerable population and that the State always has an interest in protecting human life.
If suicide guides are posted online or in print for the public to access, the intent or mens rea required to assist suicide in most states may also be eliminated. Authors produce and disseminate the information without one person in mind. Transcribing the information and releasing it to a wide audience does not mandate that anyone actually act on it. There is generally no way to know how many individuals have used Five Last Acts to facilitate their suicide. It is nearly impossible to link the publication to the death because there could be limitless intervening or contributory events between receiving the book and committing suicide. Because the publications are not addressed to any one individual, one can argue that there is no purposeful aiding or coercing or specific knowledge of a person’s suicidal intent.
A counterargument is that the author can reasonably foresee someone injuring or killing themselves by following the instructions in the book. Thus, the author may be considered reckless and should be held liable for their lack of regard for the danger of their actions.Footnote 155 But others may argue that this type of publication is not reckless, but only negligent, as there is no awareness of a particularized risk.Footnote 156 However, even if reckless, recklessness is often not sufficient to satisfy the mens rea requirement of assisting suicide statutes.Footnote 157 The defendant will argue that their speech was not purposeful or intentional in causing the death and therefore, not illegal. Thus, there is a misalignment between the legal framework and the ethical, but there is no criminality where the mens rea is not satisfied. Additional bioethical discussion is necessary to determine if statutes should be amended or intent requirements should be relaxed.
Another counterargument is that complicity with suicide alone should be sufficient for liability. In other words, appreciation for the potential outcome is enough. However, conspirator liability is more convoluted than that, sometimes requiring a common purpose and action, while other times merely requiring knowledge of the outcome.Footnote 158 For example, in U.S. v. Backun, a case concerning the sale of stolen merchandise, the Fourth Circuit stated that a seller “may not ignore the purpose for which the purchase is made if he is advised of that purpose.”Footnote 159 Further, “it is in harmony with the well settled rule that one who, with knowledge of the existence of a conspiracy, aids in carrying out its unlawful design makes himself a party thereto.”Footnote 160 Under this interpretation, authors of pro-suicide materials who intend to inform the suicides of their readers cannot claim to lack a contribution. Putting the required information into circulation and waiting complicitly for the outcome carries liability as a co-conspirator. In contrast, however, the Second Circuit held in U.S. v. Peoni, that “nobody is liable in conspiracy except for the fair import of the concerted purpose or agreement as he understands it … his liability is limited to the common purposes while he remains in it.”Footnote 161 Therefore, foreseeability and complicity with a second party’s plan is not sufficient to be held liable as a co-conspirator.
4. The Distinction Between Carter and Five Last Acts
Docker poses in his introduction, “[i]s this book illegal? If not, how does it differ from just giving the same information to a friend?”Footnote 162 He continues, “[t]he information provided by Exit, in this book and through workshops, is not directed at a specific person about [how] to use it to end their life … Exit does not know who they are, and so is not connected to the suicide.”Footnote 163 At least not straightforwardly.
While homicide requires direct causation of the death, to satisfy the assisting suicide statutes, intention or knowledge is typically required.Footnote 164 Therefore, because he does not know who is reading his book or why, Docker would surely be immune from criminal liability for homicide, as well as likely immune from liability for assisting suicide because his book does not aim to purposely aid any one particular person with suicide. In contrast, if Carter provided Roy with a copy of Five Last Acts knowing that he was suicidal, could this be criminalized? Is providing a gun for suicide different than providing a book with step-by-step instructions?
To satisfy causation requirements, the time elapsed between the communication and the injury should be so insignificant that the defendant was practically present at the scene to cause the harm.Footnote 165 For instance, “the closer in time the communication occurred to the self-inflicted injury, the less likely an intervening act took place to break the causal chain between the communication and the ultimate harm.”Footnote 166 Coaxing the suicidal party over the phone essentially puts that individual at the scene of the suicide. By taking advantage of a victim’s fragile mental state, those like Carter or Melchert-Dinkel create an environment likely to result in harm. Michelle Carter could hear Roy coughing; she could hear the generator.Footnote 167 It was almost as if she were physically there. This is enough for assisting suicide and potentially even homicide — as it was in Carter’s case. In contrast, passing along a book and removing oneself from the situation may sever liability. The receiver may never read the book at all. Conversely, exchanging text messages or talking on the phone ensures that the information is internalized in that moment.
By providing Roy with instructions that she knew he would put into action, she facilitated his suicide. Carter said:
If you emit 3200 ppm of it for five or ten minutes you will die within a half hour. You lose consciousness with no pain. You just fall asleep and die. You can also just take a hose and run that from the exhaust pipe to the rear window in your car and seal it with duct tape and shirts, so it can’t escape.Footnote 168
As it relates to carbon monoxide poisoning, Five Last Acts instructs readers to run a hose from the car exhaust into a semi-closed window and keep the car running,Footnote 169 just as Roy did. “Carbon monoxide is tasteless and odorless,” says Docker.Footnote 170 “A concentration of even one percent in the air can lead to death. The greater the concentration, the faster death occurs (it can be anything from a minute to two hours).”Footnote 171 The information provided is nearly identical in the two communications: run a hose from the exhaust to the window; it should be peaceful because there is no taste or odor; death will come quickly.Footnote 172 Carter used the information to direct Roy’s actions. Her directions were targeted and specific in such a way that her involvement met the elements of involuntary manslaughter. The book, however, could not have convinced Roy to get back into the truck once he became scared. An inanimate object cannot coax or compel. It was Carter’s active coercion that caused Roy to follow through with his suicide. Without that immediate pressure to get back into the truck, he may not have taken his own life.
When giving a gun to a suicidal person, there is an obvious act unmistakably connected to the harm. Like Persampieri v. Commonwealth mentioned above, the defendant was found guilty of manslaughter for loading a gun and teaching his wife how to use it for her suicide.Footnote 173 A gun is unmistakably a weapon designed to inflict harm. By giving his suicidal wife a gun, Persampieri could have only intended one thing. And by not stopping her, he was complicit in her suicide.
Similarly, in a recent California lawsuit, Amazon was accused of selling two teenagers sodium nitrite “at the level of purity” that could only reasonably be used for suicide.Footnote 174 Here, one teen from West Virginia and one teen from Ohio committed suicide using sodium nitrite, anti-vomiting drugs, and a suicide handbook purchased from Amazon.Footnote 175 Their parents sued under theories of product liability, negligence, and negligent infliction of emotional distress.Footnote 176 The New York Times investigated and identified ten deathsFootnote 177 that could be tied to Amazon’s “suicide kits.”Footnote 178 Amazon representatives defended the sales of the compound and stated that, “[l]ike many widely-available consumer products … [the compound] can unfortunately be misused.”Footnote 179 The lawsuit, however, claims that there is no household use for sodium nitrite at 99.6% purity.Footnote 180 And even further, upon purchasing the compound, the site recommended that customers purchased a guide on how to properly use the substance to ensure death.Footnote 181 Taken together, the suit states that use of these products for suicide was reasonably foreseeable by Amazon.Footnote 182
With a suicide guide alone, if Michelle Carter were to give Roy the book and instruct him to read the specific chapter about carbon monoxide poisoning, she would not be the one guiding his suicide attempt step-by-step, even if she were aiding or encouraging it. The instructions would come from the text. In situations like this, there is a better argument for liability under an assisting suicide statute than homicide because the actions are integral to the death, even though the victim could be considered an intervening actor.
In Carter’s case, liability stemmed from her active coaching. When Carter was adjudicated delinquent, Judge Moniz of the Bristol County Juvenile Court focused on the fact that Carter was culpable for instructing Roy to get back into his truck during his suicide attempt.Footnote 183 In the proposed hypothetical, there would not be liability under that same rationale, since only the book would be “coaching.” The judge acknowledged that Roy took significant steps in his own death, but “[Roy broke] that chain of self-causation by exiting the vehicle.”Footnote 184 By exiting, Roy indicated that he decided not to follow through with the suicide. Carter instructed him to get back in the truck, knowing his “ambiguities, fears, and concerns,” to finish what he had begun.Footnote 185 By ordering Roy back into the truck, Carter became responsible for his death. Had she just given him a book, the outcome may have been different.
Because the judge’s verdict rested on the fact that Roy followed Carter’s instructions as she gave them, if the facts were changed and Carter had given Roy Five Last Acts and nothing more, there would be no criminal liability. In the case, she was held accountable because there was a direct causal link. Alternatively, in the hypothetical, there could have been any number of intervening acts between giving Roy the book and his death. He could have researched a different method for suicide, abandoning the book and Carter’s liability entirely; this is partially what occurred because he ultimately used a gasoline-powered water pump, as opposed to the truck’s exhaust. There would not be such a definite connection.
Michelle Carter attained the information regarding carbon monoxide poisoning from somewhere. She did her research and misused the information that she found by providing it to an actively suicidal individual who trusted her. Such availability indicates that safeguards should be in place to protect those who may be harmed — either by looking it up themselves, or through another individual’s encouragement. The internet makes these instructions available with just a few clicks and those contemplating suicide may act irrationally if given the information at just the right time. Thought must be given as to how to intercept this fatal combination without infringing upon authors’ rights to free speech.
IV. The First Amendment Defense
Even if Five Last Acts were instrumental in someone’s suicide, Docker has a valid defense available which will likely protect him from criminal penalties. The First Amendment provides the right to freedom of speech and press.Footnote 186 Laws cannot censor public expression of opinions. An exception exists in the case of harm or incitement to imminent violence.Footnote 187 Docker says himself, “[r]ights of free speech in publishing, and the rights to determine one’s own death must be balanced against duties to protect the vulnerable and even the duty not to cause offence.”Footnote 188 Five Last Acts and other similar books and websites are most likely protected by the First Amendment.
Legal scholars have criticized Carter’s adjudication for setting a dangerous precedent in which “words, and not just actions” can cause death.Footnote 189 Statutes attempting to restrict speech are examined carefully. For example, in State v. Melchert-Dinkel, the constitutionality of Minnesota’s encouraging suicide statute was called into question.Footnote 190 Minnesota’s criminalization of speech that “advised” and “encouraged” another in taking the other’s life infringed on protected speech and was facially overbroad, given the terms’ ordinary meaning.Footnote 191 Thus, “advising” and “encouraging” were removed from the statute.Footnote 192 When State v. Final Exit Network was decided two years later by the Minnesota Court of Appeals, Final Exit faced charges only under the “assists” provision.Footnote 193 Under Minnesota’s interpretation, the court rejected liability based on encouragement alone, requiring a more direct causal link than speech to fall under a First Amendment exception.Footnote 194
In another case involving FEN, the Supreme Court of Georgia found the Georgia assisting suicide statute unconstitutional as well. In 1994, the Georgia legislature enacted OCGA § 16–5–5(b), stating that a person “who publicly advertises, offers, or holds himself or herself out as offering that he or she will intentionally and actively assist another person in the commission of suicide and commits any overt act to further that purpose is guilty of a felony.”Footnote 195 In this case, which stemmed from several FEN members’ indictment in 2010, the court held that “both the object and plain language of [the statute] make it insusceptible to a limiting construction” and “[a]ccordingly, [the statute] restricts speech in violation of the free speech clauses of both the U.S. and Georgia Constitutions.”Footnote 196 Because the statute was “out of the realm of content neutral regulations”Footnote 197 and rendered “a selective restraint on speech with a particular content[,]” it was found “wildly underinclusive when judged against its asserted justification,” and it could not survive strict scrutiny.Footnote 198
Furthermore, the Supreme Court in Giboney v. Empire Storage & Ice Co. stated, if speech is “an essential and inseparable part of a grave offense,” then it receives no constitutional protection.Footnote 199 Under these definitions, Carter’s speech was not protected. Carter explicitly encouraged Roy to take his own life. Because her speech was integral to Roy’s death, it fell outside the protections afforded by the First Amendment. Under this interpretation, however, as the court in Melchert-Dinkel argued, the “decriminalization of suicide proved dispositive,” because suicide was not considered a crime in and of itself, Melchert-Dinkel’s conduct and the statutory language that he was convicted under could not be “morphed” to fit this exception to the First Amendment’s protection.Footnote 200 As such, tenuous connections between the speech and the death sever liability, but because the “assists” provision remains in the statute, liability is still reserved for cases of more direct causal harm or material assistance.
In contrast, Five Last Acts is likely protected. In most cases, there is no way to know whether the book directly guided the suicide. Imminence is lost when the text is published on a fixed, static medium that a party reads at their convenience. In Carter’s case, actively pressuring Roy to return to the truck’s cab was her legal downfall. Because of the urgency of the scenario and the likelihood of harm, the First Amendment did not protect Carter. With Five Last Acts, the information may be material to the suicide, but is likely not the ultimate precipitating factor like Carter’s encouragement was. As mentioned previously, the “inability to predict suicide” may “ste[m] from the … unique constellation” of considerations that cause one to act on suicidal ideations.Footnote 201 Facts and information from a static medium may be one of those considerations, but the mere existence of this possibility does not warrant blanket First Amendment restrictions.
As a final example, a federal judge in California dismissed a civil lawsuit against Netflix on First Amendment grounds.Footnote 202 A wrongful death action is considerably different from a criminal murder charge. Rather than a crime punishable with prison time, the death is caused by a tortious wrong remedied by financial compensation.Footnote 203 In this case, a father alleged that the show “13 Reasons Why” contributed to his 15-year-old daughter’s suicide.Footnote 204 The television show has been repeatedly accused of glorifying suicide, as the show centers around the suicide of Hannah Baker and its impact on her friends and family after her death.Footnote 205 The father claimed that “[Netflix’s] algorithms were designed to ‘target vulnerable children and manipulate them into watching content that was deeply harmful to them.’”Footnote 206 The question as to whether this type of “targeting” could hold Netflix liable for wrongful death remains unanswered. The suit was dismissed on January 11, 2022, with the dismissal resting on free-speech protections.Footnote 207
Curtailing “all public discussions about suicide would encroach on an indefinite amount of speech and would fail strict scrutiny.”Footnote 208 Strict scrutiny requires that the restriction on speech further a compelling state interest and be narrowly tailored to achieve that interest.Footnote 209 States have a compelling interest in preserving life but restricting the free exchange of ideas about suicide is overly broad.Footnote 210 Therefore, most — if not all — of the speech in Five Last Acts and on pro-suicide websites is covered by the First Amendment, which means that it is accessible to the public without safeguard. Though the authors do not overtly contribute to any one suicide, their words have the ability to cause the ultimate and paramount harm — death — to those who use them. These writings are available for any suicidal individual to seek out and utilize. However, whether one chooses to use them is out of the authors’ control. To chill authors’ speech here entirely would be too significant a demand given the uncertainty of the outcome. Exceptions to the First Amendment must be carved out carefully and, here, should be reserved for cases where there is material assistance or encouragement integral to the death.
Yet free speech is not without limitations. Reckless speech that would incite panic, for example, is not protected by the First Amendment.Footnote 211 In contrast, the “mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it.”Footnote 212 In all, the category of unprotected speech is small. The “imminent lawless action test” was developed in Brandenburg v. Ohio to determine whether speech was protected, and is the current general test.Footnote 213 Under Brandenburg, only speech that encourages the imminent use of violence or lawless action falls outside the protection afforded by the First Amendment; such speech may be explicit or implicit.Footnote 214 Some critics still struggle with Carter’s conviction based on words alone, deeming it an “act of defiance against [the] general principle” that speech itself is not “violence” or, as Matthew Segel, Director of the ACLU of Massachusetts suggested, an “[abandonment of] the protections of our constitution.”Footnote 215 But Brandenburg serves as an effective test here because it covers scenarios like Carter’s, where she deliberately fostered an environment likely to result in harm to a vulnerable individual, yet leaves Five Last Acts untouched because of the requirement of imminence.
Five Last Acts is a book that can be purchased and merely sit on the shelf, collecting dust. Some may buy the book and never read it. Others may buy it and never act. There is no imminent encouragement of suicide. On a pro-suicide website, there may be old or outdated threads to read through, but there may also be “goodbye threads” encouraging suicide in real time. For each case where books or other publications are implicated in a suicide, there will be a First Amendment analysis to determine whether the speech was protected or not. As the law exists currently, the speech in these books and websites is most likely entirely protected by the First Amendment.
The importance of the First Amendment cannot be understated, but the potential for harm that may stem from these protections is also great.Footnote 216 In Board v. Pico, in 1982, the Supreme Court considered whether a local school board violated the Constitution by removing books from a school library.Footnote 217 They affirmed that the right to receive information is a fundamental right protected under the U.S. Constitution.Footnote 218 When assisted suicide cases arise that implicate pro-suicide books or other writings, courts must perform a careful analysis. Especially where the speech is integral to the suicide, courts should consider exploring the outer limits of Brandenburg.
Because of the nature of the speech and severity of the consequences, pro-suicide books and websites should be viewed with seriousness and skepticism. Suicide is a hefty price to pay for First Amendment freedom for the select few who choose to write about it. However, pro-suicide speech cannot be outlawed in its entirety. Even if authors’ aims are to educate and empower, suicide is a public health problem that can be exacerbated by the accessibility of these writings. For those who are contemplating suicide, an easy-to-follow guide might be just what is needed to make the decision. Liability should be reserved for those situations where this is the case.
V. Conclusion
In Commonwealth v. Carter, Michelle Carter was adjudicated delinquent of involuntary manslaughter for coaxing her boyfriend, Conrad Roy, to commit suicide.Footnote 219 The judge’s decision depended on her active involvement in and direct contribution to Roy’s death.Footnote 220 There was a similar outcome in Inyoung You’s case, where she pled guilty to involuntary manslaughter in 2021,Footnote 221 and with Melchert-Dinkel in 2011.Footnote 222
Additionally, one can be liable for providing a suicidal individual with the means to kill themselves. However, the means must be traceable to the death to establish a sufficient causal link between the defendant and suicide. With Five Last Acts and other similar publications, the causal link is severed because there is no specific target. The authors do not know who, if anyone, is using their information to take their own lives. Thus, if an element is not satisfied, there is no criminal liability.
Even though the authors are not engaging in illegal wrongdoing, authors or their publishers could be encouraged to include voluntary disclosures or disclaimers on their websites or in their books. As an extension of the free speech argument, authors should not be forced to include such disclaimers or be required to firewall their websites to prevent specific populations from accessing the site,Footnote 223 so these are not feasible interventions. Instead, suicide prevention groups could collaborate with pro-suicide authors for their mutual benefit. Authors would avoid potential legal consequences, while suicides would be prevented.
In cases like Commonwealth v. Carter, a direct link between the behavior and the suicide existed. Carter acted with the requisite mens rea and her conduct resulted directly in Roy’s death. Her speech played a critical and definite role in his suicide, whereas abstract thoughts that are directed at a general, public audience are not so easily attributable to suicides that they facilitate. Had Carter provided Roy with a copy of Five Last Acts instead of actively coaching him via phone, she likely would not have been found guilty. If she had read it to him over the phone knowing him to be suicidal and prepared to act upon his ideations, there may have been liability.
In sum, there is a fine line between criminality and immunity, but the line does exist. Each case is fact specific, but criminal liability lies between the circumstances in Commonwealth v. Carter and Five Last Acts, with criminal liability a more likely result where the communication is real-time and where the defendant intends a particular individual to act on it or knows that they will. Carter’s guilt stemmed largely from persuading Roy back into his truck when he became scared.Footnote 224 Her active involvement is what caused his death; participation as the suicide is occurring is more likely to be criminal. However, the words or information must be targeted at a particular person with the intent that they act on it. Without this causal link, criminal liability will be severed. Further, the First Amendment may still protect certain speech, even if it satisfied the crime.
Simply identifying the line of legality as it relates to suicide assistance provides an understanding of the criminality of this conduct. The need for anti-suicide information on the internet is critical because, during the same period that hits for pro-suicide websites were increasing, visits to suicide prevention sites declined.Footnote 225 Suicide prevention organizations could increase awareness of the issue online. There must be more balance in the accessibility of pro- and anti-suicide messages. One creative example is the #iamhere Facebook groups, which post links to articles with hateful comments and direct their members to “counterspeak” or respond to those hateful comments productively.Footnote 226 Hopefully, some individuals may think twice about encouraging suicide or “helping” a friend to commit suicide if they recognize that their assistance may constitute murder or manslaughter.
While criminalization of behavior does not always deter it,Footnote 227 there is a public health interest in preventing suicide and the assistance of it. Though suicide itself is no longer considered a crime as it was in medieval England, aiding in another’s death quickly approaches the line of murder. As the law exists now, it may be difficult to hold participants accountable, especially those acting through books and pro-suicide websites. Because these are growing in popularity, there is cause for concern.Footnote 228 But before implementing broader laws with relaxed mens rea, for instance, there must be a bioethical discussion as to whether that is the “correct” solution for the problem. Any encroachment on the First Amendment would need to be done mindfully. Lastly, as a public health problem, targeting the individual may not achieve the health outcomes that we seek, as there are a host of unique situations that may make their way into the legal system.Footnote 229 For now, simply identifying the line of legality and spreading awareness of the issue could have a deterrent effect, but further action must be taken soon.
Acknowledgements
Justine would like to thank Dr. Marsha Ryan for her bioethical guidance in writing this piece, as well as David Daugherty, for handing her “Five Last Acts” on her first day at the Coroner’s Office.
