More on the Michelle Carter Case and New Legislation

In the aftermath of the "I Love You, Now Die" documentary

|The Volokh Conspiracy |

I blogged previously here and here about the Massachusetts case of Michelle Carter, who is currently in prison for encouraging her boyfriend Conrad Roy to commit suicide. The HBO documentary "I Love You, Now Die: The Commonwealth v. Michelle Carter" shines the spotlight back on her trial and appeal. The documentary did a decent job of putting the case in context, and consider this to be your spoiler alert if you haven't watched it yet and still plan to.

The prosecution's case was built around the theory that Carter sought to manipulate Roy into killing himself so she could achieve sympathy and popularity as the grieving girlfriend. Indeed, the prosecution painted her as a friendless weirdo at best and sociopath at worst who frequently lied to get attention.

The defense, of course, tells a different story. According to that side, Carter was a mentally unstable teenager who thought that she was helping Roy escape misery and who had at best a tenuous relationship with reality. Text messages exist in which Carter had previously sought to dissuade Roy from killing himself, and nobody argues that she was responsible for his four or five previous suicide attempts. Roy had a long history of social anxiety and depression, and his family inflicted domestic violence on him—including the (substantiated) time his father punched him in the face.

One of the largest misconceptions about the case is that Carter texted Roy to get back in the car that was filling with carbon monoxide. This did not occur, as can be seen in the complete transcript of their texts from that day. The question is whether this is something she said to him on the phone that day, for which the evidence is a statement that Carter made to a friend via text months later. The defense's expert, Dr. Peter Breggin, later criticized the selective way in which the prosecution presented whether Carter told the truth in given instances. Indeed, the trial judge's (and our) belief about whether Carter told Roy to get back in the car hinges entirely on the veracity of her later text to the friend.

On the one hand, it is common in a criminal case for a defendant only to lie when it is in their interest. On the other hand, Carter sometimes potentially appeared to live in a fantasy world, such as when speaking to Roy (over the course of their texting relationship) in almost verbatim lines from the TV show "Glee" with which she was obsessed. Her perceptions of what had taken place in real life, even for occurrences entirely unrelated to Roy's death, also frequently seemed to differ from other people's. Ultimately, we may never know what exactly she said to Roy in their phone call.

As I have argued previously, I believe the case was decided incorrectly whether she told him to get back in the car or not because the worst version of her actions still does not correspond to the legal definition of involuntary manslaughter. Carter's detractors may themselves recognize the uncomfortable legal fit (and/or they may desire harsher punishments), which is why they are now promoting a bill known as "Conrad's Law" that would explicitly make the encouragement of suicide a criminal offense punishable with up to five years in prison. The bill states in relevant part:

(b) A person shall be punished by imprisonment in the state prison for not more than 5 years if they know of another person's propensity for suicidal ideation and either:

(1) (i) Exercise substantial control over the other person through control of the other person's physical location or circumstances; deceptive or fraudulent manipulation of the other person's fears, affections, or sympathies; or undue influence whereby the will of 1 person is substituted for the wishes of another;

(ii) intentionally coerces or encourages that person to commit or attempt to commit suicide; and

(iii) as a result of the coercion or encouragement, in whole or in part, that other person commits or attempts to commit suicide; or

(2) (i) Intentionally provides the physical means, or knowledge of such means, to the other person for the purpose of enabling that other person to commit or attempt to commit suicide and, as a result, the other person commits or attempts to commit suicide; or

(ii) participates in a physical act which causes, aids, encourages or assists the other person in committing or attempting to commit suicide.

(c) This section shall not apply to a medical treatment lawfully administered by, or in a manner prescribed by, a licensed physician.

While it is preferable to have the legislature address the issue head-on, the bill is problematic in many respects. Criminalizing speech requires both a strong public interest rationale and careful drafting. As to the former, it is not clear to me how frequently suicide can be said to have been "caused" by the speech of another even using liberal definitions of causation.

The current text of the bill also invites other great difficulties, such as when including as an element "undue influence whereby the will of 1 person is substituted for the wishes of another". Trial courts are likely to interpret this language in vastly disparate ways and be unable to ensure fair and equal administration of justice. The bill's text also disregards motive: someone who encouraged suicide out of hatred for an individual and someone who genuinely believed that said individual could best escape suffering via suicide would both be treated the same. And a defendant's own mental instability would presumably not serve as a legal defense to criminal interactions with a would-be suicide victim, short of meeting the (high) standard for Massachusetts' insanity defense.

We are likely to see disconcerting cases if this law is passed. I remain of the view that a tort remedy, while imperfect, would avoid a lot of the pitfalls that any criminal measure entails.

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  1. People have a constitutional right (to privacy) to bump themselves off without government interference. And plenty of organizations encourage abortion.

    1. “People have a constitutional right (to privacy) to bump themselves off without government interference.”

      Not if they do it in ways that infringe the rights of others. Flinging yourself off a building puts everyone on the ground below at risk, for example. Jumping in front of a train makes everyone on that train late.

      1. Of course, it is rather unlikely that the person flinging himself off the building will be deterred from doing so based on the threat of government interference.

        1. So the government can make regulations on the property owner to make it harder for people to use the building for this purpose. (also basejumping.)

      2. That goes without saying, and your comment adds nothing. More interesting is to wonder how you are going to prosecute them, unless they fail?

        1. Your comment adds nothing, either. Guess we tie.

      3. Not if they do it in ways that infringe the rights of others.

        Duh. What do you get out of these pointless attempts at pedantry? In the defamation thread you “helpfully” noted that Clinton and Obama aren’t currently public officials in case people weren’t aware of that, and as if their status as public figures rather than public officials mattered to the point. If someone said, “There’s a constitutional right to interstate travel,” would you say, “Not by stealing someone’s car”?

        1. What do you get out this pointless attempt to counter pedantry?

          1. Is there a reason you answered a question with a question?

        2. ” If someone said, ‘There’s a constitutional right to interstate travel,’ would you say, ‘Not by stealing someone’s car’?”

          No, because the claim that amuses me most (and therefore the subject most likely to have me reading in the first place) is the sovereign citizen bit where they claim they don’t need a driving license to operate a motor vehicle on the public highways as long as they loudly insist that they weren’t “driving”, but rather “traveling”, usually followed by some nonsense about Admiralty law or something-or-other from the Articles of Confederation. AFAIK, they aren’t usually stopped for driving stolen vehicles, but rather vehicles with home-made license plates.

  2. I’m not sure I understand your first objection the proposed bill. Assuming that the government can legitimately proscribe suicide (and as far as I know, every court in the country to address the issue agrees that it can), then I don’t see any issue with prohibiting speech that’s specifically intended to cause a specific someone to commit suicide at a specific time. Obviously the prosecution would need to prove that the speech actually did cause the suicide, but that’s no different than plenty of other criminal statutes that require proof of causation (like every other homicide statute, for instance). To the extent that the situation is unusual, that means that we shouldn’t expect to see a lot of prosecutions, but I’m not sure that it means the statute doesn’t apply.

    As far as the opinion in this case, I agree that it’s not a great fit within the definition of manslaughter. But when you allow courts to create common law crimes, you sometimes find them defining crimes in strange ways.

    1. My own objection to such a law is the same as my objection to “hate crime” legislation; it presumes an ability to determine, beyond reasonable doubt, the state of mind of the person to be prosecuted. The government has no such ability, meaning that most trials will necessarily devolve into attempts to whip up emotion in the jury rather than convince them with data.

      1. “My own objection to such a law is the same as my objection to ‘hate crime’ legislation; it presumes an ability to determine, beyond reasonable doubt, the state of mind of the person to be prosecuted”

        This, of course, is also true of every criminal law that requires the state to prove intent, which is nearly all of them.

        “Hate crime” enhancements for crimes simply accounts for the fact that “hate crimes” have victims beyond the immediate. “Hate crimes” intimidate people… you burn a cross on the lawn of Jamaal and Chiquita, they’re affected, but so are the other black folks who live nearby (to varying degrees).

  3. I wonder why Carter did not use the insanity defense.

    1. Because despite popular opinion, insanity defense almost never works.

      1. And in some cased where it is appropriate and could work, the defendant objects to it and won’t let the defense lawyer use it.

        Genuinely insane people don’t understand that they are insane, and object to being called insane.

        1. Genuinely insane people get hopefully-not-genuinely-insane representatives appointed for them to preserve their various interests.

          They often object to this, too.

  4. If you are desperate for money, and I plunked $10,000 to cut your arm, you would still find it very difficult to do so. For a thousand years, torts and criminal causation of any inducement of suicide was interrupted by the intentional act of the suicider. That person may be called psychotic, since he holds the false belief that suicide is a good remedy for his distress.

    All second guessing of suicide by the lawyer profession of today is the seeking of scapegoats, to avoid the family factors, relationship problems. Such scapegoating serves lawyer rent seeking purposes, generating fraudulent lawyer income. It is also fraud carried out on the court.

  5. Bills named (officially or unofficially) for victims who weren’t “given justice” (avenged?) properly should be killed in committee. They’re virtually always badly constructed.

  6. Why would her motivations matter here, as long as she had intent to do the act and the capacity to understand legal from illegal (regardless of opinions about absolute right and wrong.)

    Courts have repeatedly upheld assisting a suicide. If there is no constitutional problem with proscribing assisting a suicide, surely there is no constitutional problem with soliciting one.

    Professor Manta, as a libertarian, doubtless thinks that states shouldn’t proscribe soliciting a suicide. But that’s a question of policy, not of law.

    Surely manslaughter can be achieved by speech. If Don Corleone says that the family would be better off without such-and-such, his actions are not protected speech and can be made criminal. Why should it matter whether the family custom of going out with dignity is to have such-and-such bump himself off when the Don orders it, or to have some family member help him out in doing so?

    It seems to me that the idea that without his Don’s approval and confidence, a mafia member’s life is not worth living, and to a mafioso dignity demands death, is just as reasonable or unreasonable a philosophy of dignity as any other.

    1. “Surely manslaughter can be achieved by speech…”

      Perhaps. But since “Congress shall make no law…” abridging freedom of speech, you can’t make a law that forbids manslaughter-by-speech unless you can overcome the first amendment prohibition on making laws that abridge freedom of speech. How is this to be done, in your estimation?

    2. Will no one rid me of this turbulent priest?

    3. Courts have repeatedly upheld assisting a suicide.

      Dr. Kevorkian would like to disagree with you.

      This required legislative change.

      1. Oregon legalized physician-assisted suicide.

        The W administration handled this development by threatening to revoke the ability of physicians who assisted suicides, in full compliance with state law, to prescribe medications. Eventually, the courts sided with Oregon’s physicians, on federalism grounds.

    4. Professor Manta, as a libertarian

      Can we get a cite for this please?

  7. Not every tort needs a remedy. Some things happen so rarely that adding a new statute to address them can only at best be a waste of time and, at worst, lead to unjust cases for actions not contemplated by the drafters of the statute.

    The statute that we really need is one that subtracts a few votes in the next election from each legislator who voted to increase the total number of statutes, and gives those votes to legislators who voted in the opposite direction.

    1. Instead of focusing on the quantity of statutes, I prefer to zero in on the quality.

  8. It’s long accepted planning and sending minions off to commit a bank robbery is itself considered a crime via participation, even though all the participation was speech (and the crime accrues even if they get no money from the robbery.)

    Why is this any different?

    1. If you have minions, then liability attaches by respondeat superior

  9. The comments on this thread are a good reason why tort lawyers should not practice criminal law, and vice versa.

  10. The Dean needs a copy editor. “On the one hand, it is common in a criminal case for a defendant (singular) only to lie when it is in their (plural) interest.”

    1. You need an update. Singular “they” has evolved to replace the awkward construction “he or she” in modern communications.

      See, e.g., https://en.wikipedia.org/wiki/Singular_they

    2. Take it up with Shakespeare.

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