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.