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Murder by Mean Text?

Law Books Gavel

A Massachusetts teenager faces 20 years in prison for contributing to her boyfriend’s suicide via text message.

BBC:

A Massachusetts judge has ruled that a teenage girl caused the suicide death of her boyfriend by encouraging him to end his life via text. What does this mean for the future of electronic communication and the law?

Michelle Carter was found guilty of involuntary manslaughter for sending 18-year-old Conrad Roy dozens of text messages that encouraged him to commit suicide. He died in 2014 of carbon monoxide poisoning, after he drove to a secluded parking lot and killed himself.

Many legal experts were surprised by the judge’s decision, and say from the very onset this was a very strange case, compounded by intense media scrutiny.

“I would say from the very start, the charges were surprising,” says Mary Anne Franks, a professor of law and vice president of the Cyber Civil Rights Initiative.

“There was so much anxiety and so much anger about what she did because her actions were reprehensible.”

But apart from the public outrage, the case presented many tangled legal and ethical questions that troubled law experts, and the verdict could have important legal consequences for future cases.

The article goes on to outline said consequences. The bottom line, though, is that most legal scholars think Carter was over-charged here because of both public outrage over her conduct and the fact that Massachusetts is one of a handful of states with no law on the books against assisted suicide.

“I’ve always thought manslaughter was an ill-fitting suit,” says Daniel Medwed, professor of law and criminal justice at Northeastern University School of Law. “What Michelle Carter did was reprehensible, morally blameworthy and despicable, but I’m not sure it was manslaughter.”

Medwed says the state essentially argued that causation took place – that Carter’s texts caused Roy’s death.

Carter sent Roy things like “All you have to do is turn the generator on and you will be free and happy,” and allegedly called him to order him back into his vehicle when he got out.

But Medwed says that by the legal definition of manslaughter, those texts and the phone call fall short of proof of direct causation.

Franks wonders why Carter was not charged under Massachusetts’ robust anti-harassment laws, with domestic abuse charges, or with failing to act when it was clear what Roy’s intentions were.

She says she understands that the punishments for these lesser charges may have seemed to prosecutors to be insufficient, however, “to the extent that those are not robust enough [laws], we should be making them more robust, not using really extreme penalties and charges that don’t necessarily fit”.

David French calls this a “sad and terrible verdict.” While acknowledging that “her conduct was unconscionable, and she certainly played a key role in an absolutely heartbreaking death,” he argues,

First, Conrad Roy is responsible for his death. To argue that Carter committed manslaughter is to diminish Roy’s moral agency. It denies his free will. It’s wrong to deny compassion to someone so troubled that they’d attempt suicide, but we can’t move so far in the other direction that we race to find who’s “really” to blame when a person voluntarily takes their own life. It’s still an act of self-murder, and while Carter undoubtedly played a persuasive role, I can’t imagine where we will draw the line. Will we prosecute mean people for manslaughter when troubled teens kill themselves?

Second, there are real First Amendment implications with this verdict. Carter’s actions were reprehensible, but she was sharing with him thoughts and opinions that he may have found persuasive but had the capacity to reject. A legal argument that renders otherwise-protected speech unlawful because it actually persuades would blast a hole in First Amendment jurisprudence.

Robby Soave agrees:

Her lawyers claimed antidepressant drugs influenced her behavior; though the prosecution preferred to cast her as a callous narcissist who craved the sympathy of her peers and believed a suicidal boyfriend would earn her a popularity boost.

In either case, Ms. Carter’s conduct was morally reprehensible. But — at least until today’s ruling — it was clearly legal. While some states criminalize the act of convincing people to commit suicide, Massachusetts has no such law. Moreover, speech that is reckless, hateful and ill-willed nevertheless enjoys First Amendment protection. While the Supreme Court has carved out narrowly tailored exceptions for literal threats of violence and incitement to lawless action, telling someone they should kill themselves is not the same as holding a gun to their head and pulling the trigger. Nor is it akin to threatening to kill the president, which is specifically prohibited by law — and in any case, only considered a felony if done “knowingly and willfully.” (Merely expressing hope that the president dies isn’t enough.)

Judge Moniz’s verdict is a stunning act of defiance against this general principle. By finding Ms. Carter guilty of involuntary manslaughter — rather than some lesser misdeed, such as bullying or harassment — the court has dealt a blow to the constitutionally enshrined idea that speech is not, itself, violence. That’s cause for concern.

“Mr. Roy’s death is a terrible tragedy, but it is not a reason to stretch the boundaries of our criminal laws or abandon the protections of our constitution,” wrote Matthew Segel, legal director of the ACLU of Massachusetts, in a statement. “The implications of this conviction go far beyond the tragic circumstances of Mr. Roy’s death. If allowed to stand, Ms. Carter’s conviction could chill important and worthwhile end-of-life discussions between loved ones across the Commonwealth.”

While I agree that there is a slippery slope here, I disagree that Carter’s conduct deserves protection under the First Amendment. While the right to express unpopular—even vile—political opinions must be absolute, speech that encourages criminal conduct is frequently unlawful. Carter’s action here was surely incitement. Indeed, more so than most. She actively talked a person over whom she had deep influence into killing himself and goaded him further when he seemed to be changing his mind. Is he ultimately responsible for his own action? Maybe. He was, after all, almost certainly mentally ill.

Now, that may well also be the case with Carter. That was what her attorney was arguing. But the judge was not persuaded by that argument.

And this wasn’t just some angry mean tweet. Had she merely texted “Kill yourself!” in the midst of a heated argument, she would have cause to feel guilty when he did just that. But few would argue that she was criminally liable. This was active and repeated incitement. I see no loss to the Republic if that is not protected.

I’m much more persuaded, however, by the “overcharging” argument. The Constitution does indeed protect against ex post facto laws. Wedging her conduct into an existing statute that doesn’t fit the facts of the case may well be just that.

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About James Joyner
James Joyner is the publisher of Outside the Beltway, an associate professor of security studies at the Marine Corps Command and Staff College, and a nonresident senior fellow at the Atlantic Council. He's a former Army officer and Desert Storm vet. He earned a PhD in political science from The University of Alabama. Views expressed here are his own. Follow James on Twitter.

Comments

  1. CSK says:

    Would a more accurate charge have been accessory or accomplice, given that she told him to get back in the car?

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  2. James Joyner says:

    @CSK: I don’t know if that was available to the prosecution.

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  3. CSK says:

    Mass. is one of a minority of states that doesn’t criminalize encouraging or assisting suicide.

    From what I’ve read in the Boston papers, the deciding factor, for the judge, was that Carter told Roy to get back in the car.

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  4. Andy says:

    “Murder by text?” I think you make good arguments in this piece, but that headline….

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  5. Janis Gore says:

    Here’s a criminal attorney in Massachusetts:

    In order to obtain a conviction of Involuntary Manslaughter, the prosecution must prove, beyond a reasonable doubt, the following legal elements:

    1) That the defendant caused an unlawful, while unintentional, killing. In other words, there was no legal justification for the killing (such as self-defense,) and the defendant intended to commit the act or conduct that ultimately caused the death. However, the prosecution does not need to prove that the defendant intended to cause the death that resulted from his conduct;
    2) That the victim’s death was caused by wanton or reckless conduct, meaning that the defendant’s actions created a high degree of likelihood that substantial and serious harm would result to another person; and
    The wanton or reckless conduct that the defendant engaged in, in fact caused the victim’s death.

    I watched the judge delivering the verdict. While the judge regarded much of her conduct as reckless and wanton, it was her command to get back into the car, then failure to take reasonable actions to prevent his death that met the requirements of the statute in his opinion.

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  6. MattT says:

    IANAL but suspect that in any state, if a person were to convince a distraught partner to kill a third party they would bear some moral and legal responsibility And rightly so. Suicide seems like a similar case.

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  7. HarvardLaw92 says:

    @James Joyner:

    I’ll go a different route. Involuntary manslaughter essentially depends on the contention that the victim’s death was unintended. That clearly isn’t the case in this scenario – the defendant not only contributed to his death, she also clearly intended for it to happen. The appropriate definition for what she did is depraved heart murder. She wasn’t overcharged. She was undercharged …

    Depraved-heart murder is the form of murder that establishes that the willful doing of a dangerous and reckless act with wanton indifference to the consequences and perils involved, is just as blameworthy, and just as worthy of punishment, when the harmful result ensues, as is the express intent to kill itself. This highly blameworthy state of mind is not one of mere negligence. … It is not merely one even of gross criminal negligence. … It involves rather the deliberate perpetration of a knowingly dangerous act with reckless and wanton unconcern and indifference as to whether anyone is harmed or not. The common law treats such a state of mind as just as blameworthy, just as anti-social and, therefore, just as truly murderous as the specific intents to kill and to harm

    Some states define depraved heart murder via statute as being second degree murder. Others treat it as involuntary manslaughter. MA statutory law doesn’t define either depraved heart murder or the elements of manslaughter. They’re defined by the common law and by case law, so the judge is within his scope here to rule as he did. Personally, had I been the prosecutor I’d have charged her with depraved heart murder and gone after the statutory penalties for second degree murder. She got off light IMO.

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  8. Janis Gore says:

    @HarvardLaw92: Does fit the facts better, doesn’t it?

    Perhaps the prosecutors took into account her own miserable mental state.

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  9. HarvardLaw92 says:

    @Janis Gore:

    It depends on the prosecutor. In states like MA where statutory law is either vague about or doesn’t speak to the specifics of an offense, much of making the determination of which charge is appropriate depends on the common law & prior rulings.

    In that situation, it essentially becomes a judgment call on the part of the prosecutor, premised on a variety of factors – personal appetite for risk, knowledge of either the judge or the character of the area from which a jury would be called, subsequent evidence of remorse or mitigating factors on the part of the defendant, etc. Every scenario is unique.

    She clearly intended to cause his death, knew that it was wrong to do so and, as far as I can ascertain, was primarily worried about the social consequences which would result for her. If she ever expressed remorse, I can’t find any evidence of it. She’s a reprehensible person who committed a reprehensible act.

    Now she gets to pay for it.

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  10. Pch101 says:

    She was a minor.

    She didn’t actually kill him.

    His suicide was not illegal, so she did not aid and abet a crime.

    The first amendment argument is plain dumb, but she committed no crime even though the girl is obviously a sociopath. For the sake of justice, I hope that her conviction is overturned.

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  11. CSK says:

    OT, but having to do with legal matters: Jury deadlocked in Cosby case. Judge declares mistral.

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  12. James Joyner says:

    @HarvardLaw92: I agree with this:

    She clearly intended to cause his death, knew that it was wrong to do so and, as far as I can ascertain, was primarily worried about the social consequences which would result for her. If she ever expressed remorse, I can’t find any evidence of it. She’s a reprehensible person who committed a reprehensible act.

    I’m more than a little leery, though, of having vague laws which are interpreted post hoc by prosecutors and judges. How is that not an ex post facto law?

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  13. HarvardLaw92 says:

    @Pch101:

    She was a minor.

    She was tried in juvenile court. MA law allows for the imposition of adult sentences for certain crimes. Involuntary manslaughter is one of them.

    She didn’t actually kill him.

    Immaterial.

    His suicide was not illegal, so she did not aid and abet a crime

    Also immaterial.

    she committed no crime even though the girl is obviously a sociopath

    The common law disagrees with you.

    For the sake of justice, I hope that her conviction is overturned

    For the sake of society, I’m pleased that she’ll spend much of her miserable life removed from it. One of us obviously will eventually be disappointed.

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  14. Pch101 says:

    MA law allows for the imposition of adult sentences for certain crimes.

    That’s true throughout the land. Doesn’t change my point.

    The common law disagrees with you.

    No, a lower court judge disagrees with me. One can only hope that an appeals court will get it right.

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  15. CSK says:

    One of her motives in encouraging Roy to kill himself was her belief that she’d become more popular by having a boyfriend dead by suicide.

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  16. HarvardLaw92 says:

    @James Joyner:

    I’m more than a little leery, though, of having vague laws which are interpreted post hoc by prosecutors and judges

    Welcome to the common law …

    How is that not an ex post facto law?

    Manslaughter in MA is a common law offense (as is depraved heart murder), which is considered to predate the establishment of the state itself. The conditions under which her actions constitute an offense predate the existence of the United States as a country. Ex post facto concerns passing laws which retroactively criminalize an act. That isn’t the case here.

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  17. HarvardLaw92 says:

    @Pch101:

    That’s true throughout the land. Doesn’t change my point

    She was tried as a juvenile in separate, juvenile court proceedings. What more are you seeking here, a “get out of jail free because you’re not legally an adult” card?

    No, a lower court judge disagrees with me. One can only hope that an appeals court will get it right

    Right, because sending the message that a person can manipulate another into taking their own life without any expectation of punishment is certainly beneficial to society … :roll:

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  18. PD Shaw says:

    I think causation is the issue. When the Court rejected the motion to dismiss earlier, it couldn’t find a case in Massachusetts in which words alone had caused death. The closest examples were involuntary manslaughter convictions upheld (1) against a participant in a game of Russian roulette, and (2) a husband who loaded a gun and handed it to his wife during an argument and taunted her into killing herself. In both of these cases, the accused handed the weapon to the deceased. The Judge reasoned that “conduct” that can give rise to harm may exist on a continuum between speech and physical acts, and that he couldn’t dismiss the case without a trial to allow him to examine the totality of the facts and context.

    An appeals court will ultimately decide where the line should have been drawn, and I don’t know that the First Amendment will be that significant. A First Amendment argument suggests that even if the legislature had passed a well-crafted law criminalizing this conduct, it would be void.

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  19. Pch101 says:

    @HarvardLaw92:

    What more are you seeking here, a “get out of jail free because you’re not legally an adult” card?

    No, I’m playing the “we shouldn’t convict those who aren’t guilty” card. This is one of those instances of a conviction being rationalized because we don’t like the defendant.

    She didn’t kill him. As far as I can tell, there was no duty of due care to intervene. Not every nasty act committed by a nasty person is a crime.

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  20. James Joyner says:

    @HarvardLaw92: Our system is a strange hybrid of common and code law but the former seems problematic for criminal law. It makes more sense in civil cases and constitutional/statutory interpretation. Now, obviously, things like self-defense, mental state, and incitement are sufficiently hard to define a priori that judgments have to be made.

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  21. HarvardLaw92 says:

    @Pch101:

    No, I’m playing the “we shouldn’t convict those who aren’t guilty” card

    But she is guilty. Her conduct satisfies the common law elements of a variety of applicable offenses: depraved-heart murder and manslaughter, among others – and lesser included offenses like negligent homicide, aggravated assault, etc.

    That’s sufficient to convict her, and MA statutory law allows her to be sentenced as an adult. Both the conviction and the sentence were proper.

    It sounds like your gripe is with the lack of specificity in Massachusetts statutory law. You seem to want it to be constructed more narrowly than it is. You’ll have to take that one up with the Massachusetts legislature.

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  22. Pch101 says:

    @James Joyner:

    Suicide was a crime under common law. Now it is legal in most of the US.

    The involuntary manslaughter charge makes no sense except as an bass ackward end run around a murder conviction that could not be obtained. She killed him accidentally on purpose with his hand? How does that work?

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  23. HarvardLaw92 says:

    @James Joyner:

    It’s what we have. The English common law as it existed at the moment of the establishment of the nation is held to be the body of law that was and which remains applicable in the US, unless and until it is superseded by statutory law.

    MA hasn’t superseded it with respect to this set of offenses, so it remains in effect.

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  24. HarvardLaw92 says:

    @Pch101:

    Suicide was a crime under common law. Now it is legal in most of the US

    You’re making my argument for me. MA statutory law doesn’t address suicide, therefore it remains a common law offense in MA.

    The involuntary manslaughter charge makes no sense except as an bass ackward end run around a murder conviction that could not be obtained

    Again, her conduct satisfies the common law elements of manslaughter. It actually satisfies the common law elements of depraved-heart murder, which is far worse than what she was actually convicted of. In a just ruling, she’d have been convicted of depraved-heart murder and sentenced to life in prison – a sentence which is provided for under MA statutory law. I get that you do not like that, but it doesn’t change the reality of it.

    She killed him accidentally on purpose with his hand? How does that work?

    She constructively participated in, indeed helped to facilitate, his suicide. An argument can be made that it might not have occurred absent her active participation in encouraging it (the guy got out of the car, she ordered him back into it, so did he really intend to die?). The law treats her as being equally culpable for the death.

    I get that you do not like that either, but again, that doesn’t change the reality of it.

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  25. Pch101 says:

    @HarvardLaw92:

    I get the argument. It’s a poor one.

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  26. HarvardLaw92 says:

    @Pch101:

    I get the argument. It’s a poor one.

    I’ll take that to mean “it’s legally correct, but I dislike it”.

    Are you actually trying to convince me that society should be sending the message that it’s acceptable to facilitate suicide? This guy was clearly mentally ill and in a vulnerable state.

    What’s next? Nursing home aides being allowed to talk old people into offing themselves?

    I’m getting the feeling that your underlying problem with this scenario is her age. That it’s inherently unfair for someone so young to essentially forfeit her life.

    Tough noogies. The law criminalizes her behavior. She received a fair trial. She was convicted according to the law as it exists in MA. The consequences which she now faces are entirely of her own making.

    My sympathy lies with the vulnerable young man she victimized. She gets none from me.

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  27. rodney dill says:

    I think it should be against the law for someone to bully or goad someone into suicide, especially someone that has been determined to be mentally unstable, (those may not all apply to this case)
    I also think that involuntary manslaughter is probably too steep a penalty.

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  28. KM says:

    @Pch101:
    I’m trying to understand your train of thought here. Are you objecting to her sentencing because of unclear legal issues/ terminology or are you objecting because you honestly don’t think she committed any sort of legal wrong?

    One of the reasons the First Amendment exists is because the Founding Fathers understood words have power and taking that power is diminishing someone’s freedom to act. They also understood that words have the power to destroy, which is why laws regarding slander and defamation continue to exist. Words are weapons of the mind. Someone who continually badgers, cajoles, manipulates and outright states their preference for someone to die is attacking that individual and causing them appreciable harm. Should they die from that attack, it is most definitely appropriate to charge them with the applicable manslaughter charge. IANAL so I don’t have the level of detail Harvard would but your argument that since suicide is not a crime, her actions also aren’t misses the essence of the attack. She hurt him a way that clearly ended up with him dead – just because he wasn’t bloody by her hand doesn’t mean she didn’t attack him.

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  29. Pch101 says:

    @HarvardLaw92:

    No, I would say that it’s legally incorrect, which is why I dislike it.

    The prosecutor is attributing his behavior to her, while making it quite clear that she wanted him dead.

    That doesn’t meet a test of involuntary manslaughter. If she wanted him dead and she is culpable for his actions as the prosecutor claims, then this should have been a murder charge.

    But we all know that there was no murder charge. She is guilty of being unlikable, and murder would have forced that hand. The lesser charge makes it seem more reasonable.

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  30. Pch101 says:

    @KM:

    I made it clear. There is no crime here.

    She didn’t actually kill him.

    There was no duty of due care to intervene. If we don’t like that, then get the legislature to change it.

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  31. KM says:

    @Pch101:

    There was no duty of due care to intervene. If we don’t like that, then get the legislature to change it.

    Except duty of care wouldn’t apply. She was CAUSING it – she was the abuser. There’s no evidence his illness made him inevitably suicidal but plenty to prove she was deliberately inciting the behavior with her words and actions. Are you trying to say because she didn’t have a duty to report herself, she gets off scott free?

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  32. HarvardLaw92 says:

    @Pch101:

    The prosecutor is attributing his behavior to her, while making it quite clear that she wanted him dead

    Actually, he isn’t. Two people participated in this crime. Both are equally culpable for it (which is a long and well established doctrine of law). If you want to dig him up and convict him as well, knock yourself out. Doing so won’t change the circumstances of her own guilt.

    That doesn’t meet a test of involuntary manslaughter. If she wanted him dead and she is culpable for his actions as the prosecutor claims, then this should have been a murder charge

    Sorry, but which of the three elements of involuntary manslaughter do you feel wasn’t satisfied here? Be specific as to how, please.

    I agree that it should have been a murder charge, specifically depraved-heart murder, as I argued above. She was undercharged. That having been said, involuntary manslaughter is a lesser included offense to second degree murder. You do get that, correct? You do get why it affects your argument, correct?

    She is guilty of being unlikable

    She’s guilty of involuntary manslaughter. Your inexplicable sympathy for her doesn’t change that.

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  33. HarvardLaw92 says:

    @KM:

    Bingo. At least somebody here gets it.

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  34. Pch101 says:

    @KM:

    She didn’t threaten him. He followed bad advice (and from a minor, no less, when he was an adult.)

    Making a minor more responsible for an adult’s behavior than the adult himself sets a bad precedent.

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  35. Pch101 says:

    @HarvardLaw92:

    I have no sympathy for her. I don’t like wrongful convictions of anyone, even if the defendant is as loathsome as is this one.

    The fact that you think it’s about sympathy proves my point. She’s guilty of being nasty.

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  36. HarvardLaw92 says:

    @Pch101:

    She didn’t threaten him. He followed bad advice (and from a minor, no less, when he was an adult.)

    She engaged in the manipulation of a person whom she knew to be mentally ill, someone who had an established history of depression and prior suicide attempts, in order to encourage him to end his life. She had abundant cause to be aware of the dangers of doing so, and she was aware that he was actively engaged in a further attempt to suicide. Moreover, she actively participated in that attempt. She encouraged it. She helped to facilitate it and to ensure its success. Her conduct contributed to the death. She’s equally culpable for it.

    At best, that is criminal negligence. Frankly, it’s depraved indifference. That having been said, you’re arguing philosophy, not the law. An otherwise lawful act, committed with criminal negligence, which causes or is a proximate cause of a death, is sufficient to establish criminal culpability under the common law definition of involuntary manslaughter.

    And before you go there, I suggest reading M.G.L. ch.201D §12. She has no out here. A illegal death was caused, her conduct helped to facilitate it (indeed served to make it more likely to occur), said conduct satisfies the required common law elements of the criminal offense for which she was convicted, and now her behind goes where it belongs – to prison.

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  37. Pch101 says:

    @HarvardLaw92:

    All of that is a wonderful appeal to emotion.

    She didn’t threaten him.

    She didn’t kill him.

    She isn’t a therapist.

    She wasn’t even an adult, while he was.

    He killed himself, obviously.

    His suicide was not illegal, so she did not aid and abet a crime.

    It’s a legislative failure. If we want to require people to intervene with suicides, then pass laws to make it so.

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  38. KM says:

    @Pch101:

    She didn’t threaten him. He followed bad advice (and from a minor, no less, when he was an adult.)

    “Threaten” is probably not the word you want to use in this case. After all, she did put him in jeopardy by offering specific detailed advice and (using the latest standards) made him afraid for his life. He exited the car, after all, which indicated a change of mind and unwillingness to stay in that situation. Her words sent him back in.

    I get you don’t want to criminalize bad behavior/ advice or failure to act. This is different in that it was actively malicious. It wasn’t someone helping an ill relative or friend find peace. This was a young woman goading someone weaker then her to a terrible fate for the lulz.

    Making a minor more responsible for an adult’s behavior than the adult himself sets a bad precedent.

    This is a bizarre takeaway. No one’s saying he wasn’t responsible but saying she contributed. Additionally, it is absolutely foolish to think that age is an impediment to malice. She’s not five – she gets the benefit of “childhood” as a legal fiction, not a biological one. She was of sound mind when sending those texts. There was clear intent. Hiding behind age in this case is like a self-made orphan bemoaning their status. If a 15yr old stands behind a developmentally-disabled adult holding bleach and screaming Chug! Chug!, would you give them the same benefit of the doubt?

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  39. HarvardLaw92 says:

    @Pch101:

    His suicide was not illegal, so she did not aid and abet a crime

    Yet again, suicide is illegal under MA law.

    If we want to require people to intervene with suicides, then pass laws to make it so.

    Intervene?? You’re actually arguing that the operative factor here is that she had no duty to intervene to stop the suicide? Seriously???

    You’ve got it entirely backward. She wasn’t removed from / a passive bystander to the suicide. SHE PARTICIPATED IN IT. SHE HELPED FACILITATE IT. WHEN IT BECAME EVIDENT THAT HE MAY NOT HAVE INTENDED TO GO THROUGH WITH IT, SHE ACTIVELY INTERCEDED TO RE-ENGAGE HIM IN THE ATTEMPT.

    Sheesh … :roll:

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  40. KM says:

    @Pch101:

    It’s a legislative failure. If we want to require people to intervene with suicides, then pass laws to make it so.

    Be very careful what you wish for here, you just might get it.

    With the rise of Facebook suicides, fake news and other internet asshattery, you might very well get a law that holds anyone and everyone on a thread/post/feed accountable for the words of a jerkass posting online. The laws we have are sufficient – don’t go begging for trouble.

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  41. MattT says:

    @PD Shaw: “In both of these cases, the accused handed the weapon to the deceased.”

    I’ve read that Carter “helped” Roy by doing research on lethal concentrations of carbon monoxide and how to generate it. She didn’t quite hand him a gun, but research that she passed on to him sounds like action she took toward his death, more than speech.

    One point I haven’t seen discussed: when Roy got out of the car (“because he felt sick,” I’ve read in some accounts) his judgment may have already been impaired by hypoxia. Was that considered in determining Carter’s culpability in telling him to continue, and should it have been?

    I also disagree (as a member) with the ACLU statement that this verdict is unfortunate in that it might chill discussion of end-of-life issues. End-of-life discussions that encourage or browbeat depressed persons to end their lives certainly should be “chilled.”

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  42. Pch101 says:

    @KM:

    Her words sent him back in.

    No, he sent himself back in. His (unfortunate) decision.

    I realize that this feels all wrong because she is a nasty piece of work. I don’t really like Nazis marching through Skokie (or anywhere else, for that matter), either, but I would defend their right to protest even though I wouldn’t piss on them if they were on fire because even dirtbags have rights. This guy chose to off himself, and no one else should be culpable for that.

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  43. Pch101 says:

    @HarvardLaw92:

    If she had egged him on to buy a lottery ticket and he won the grand prize, what percentage of his winnings should she get? After all, he was just a vessel for her actions.

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  44. MattT says:

    Non-rhetorical question from a non-lawyer:

    If Carter had exploited Roy’s mental illness and vulnerability to convince him to kill a third party – some rival at school, perhaps – would she bear some criminal responsibility? If so, why should the law treat the action of killing himself differently? How do the arguments in favor of his agency and her freedom of speech not apply to both cases?

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  45. HarvardLaw92 says:

    @Pch101:

    This guy chose to off himself, and no one else should be culpable for that

    So, in PCH world, if someone around me is:

    1) Mentally ill
    2) Has a documented history of depression and multiple prior suicide attempts
    3) is actively engaged in another attempt while in direct contact with me

    I can’t hand them the gun, but it’s OK for me to encourage them to pull the trigger?

    Or is handing them the gun OK as well, since I didn’t, you know, actually pull the trigger? I can’t push you of the bridge, but I’m allowed to yell at you that you should jump?

    You have a novel concept of the law, friend …

    :roll:

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  46. HarvardLaw92 says:

    @MattT:

    If Carter had exploited Roy’s mental illness and vulnerability to convince him to kill a third party – some rival at school, perhaps – would she bear some criminal responsibility

    She’d bear equal culpability.

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  47. Pch101 says:

    @MattT:

    Murder is illegal, as is two or more people planning one. She would be guilty of conspiracy.

    Suicide is legal in that state (although doctors can’t assist it.)

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  48. HarvardLaw92 says:

    @Pch101:

    If she had egged him on to buy a lottery ticket and he won the grand prize, what percentage of his winnings should she get? After all, he was just a vessel for her actions

    Now you’re just being disingenuous. Surely you’re familiar with the legal concept of harm, correct?

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  49. KM says:

    @Pch101:

    I realize that this feels all wrong because she is a nasty piece of work. I don’t really like Nazis marching through Skokie (or anywhere else, for that matter), either, but I would defend their right to protest even though I wouldn’t piss on them if they were on fire because even dirtbags have rights. This guy chose to off himself, and no one else should be culpable for that.

    I must respectfully disagree. As I said before, the power of words is one of the reason we have the First Amendment. Persuasion, cajoling, peer pressure…. all of these are known and active forces that cause an individual to act in ways that may not have done. A person’s right to autonomy is messed with when they are at diminished capacity and some jerk decides to take advantage of that. It is someone using their rights to take away anothers.

    Stan Lee penned deep wisdom with “With Great Power Comes Great Responsibility”. The right and privilege of free speech doesn’t not come consequence-free nor should it ever. It cheapens the idea to believe that whatever you say doesn’t matter because ultimately a person’s actions are their own. We are not island but products of our environment. You are free to do as you wish but you damn well better be ready for to accept the fallout when it hits the fan.

    Sticks and stones may break my bones but words make me think I deserved it.

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  50. HarvardLaw92 says:

    @Pch101:

    Suicide is legal in that state (although doctors can’t assist it.)

    For the 900th time today, MA law does NOT decriminalize suicide or the attempt thereof. It does not address the issue.

    As a result, the operative law with respect to suicide in MA remains the common law, which criminalizes suicide (and attempted suicide).

    If you want to dig him up and charge him with suicide, knock yourself out, but really man, this twisted argument in defense of an emotional position which you’re making is beneath you.

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  51. Pch101 says:

    @HarvardLaw92:

    Where did this 17-year-old get her training as a therapist?

    It’s not as if I’m alone in my skepticism here.

    https://aclum.org/uncategorized/aclu-massachusetts-statement-michelle-carter-guilty-verdict/

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  52. HarvardLaw92 says:

    @Pch101:

    Where did this 17-year-old get her training as a therapist?

    So, when someone is mentally ill and has a history of multiple prior suicide attempts, and I am well aware of these prior attempts, it’s ok for me to hand them the gun as long as I’m not a therapist?

    After all, I have no formal training in psychology, so if they then blow their head off with the gun that I handed them, it’s all on them, right? Too bad, so sad?

    Does that mean that therapists would be guilty of manslaughter, but not lawyers like myself (or plumbers, or accountants, or …)?

    That’s inventive …

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  53. Gustopher says:

    She seems nice.

    She’s also guilty as can be — undercharged if anything. She knowingly and intentionally acted to increase the likelihood that a specific person would die. The fact that her actions were speech, rather than severing the brake lines of his car, is a minor quibble — incitement is not protected speech.

    And then we have this other complicated case, where it is hard to say the charges are right… five officials charged with manslaughter in Michigan for the Flint water crisis.

    https://www.theguardian.com/us-news/2017/jun/14/flint-water-crisis-manslaughter-charges-government-officials

    I haven’t read all the details, but this strikes me as — at the very least — being close to criminalizing politics.

    Lots of government actions, ostensibly made in good faith, result in people dying — for instance, if you make health insurance so expensive that 24M people don’t have access to healthcare. Raising speed limits, cutting social services, moving a homeless shelter, tax policy… all of these are things that can affect people’s lives profoundly, and the hope is that more people are helped than harmed.

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  54. Pch101 says:

    @HarvardLaw92:

    MA law does NOT decriminalize suicide or the attempt thereof.

    There’s no crime to prosecute for a suicide in that state. That trend has been in place since the 1960s; suicide used to be illegal throughout the US.

    Again, this passion to hold a minor responsible for legal adult behavior is astounding.

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  55. HarvardLaw92 says:

    @Pch101:

    You’re clearly arguing for the sake of argument at this point.

    Suicide is illegal in MA, regardless of what the “trend” might be or what other states have done.

    In MA, attempting it is illegal. Assisting someone else in attempting OR succeeding in it is illegal.

    Every time I shoot a hole in your silly theories, you just move the goalposts without addressing the issue.

    She was 17 and some change at the time of the incident. IMO she’s an adult. MA allows us to punish her as an adult. If you don’t like that, then call up the MA legislature & complain.

    In the meantime, she’ll be in prison where she belongs. I won’t lose any sleep over that.

    You have a nice day.

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  56. iSeeDumbPeople says:

    These arguments revolve around 100s-year-old case law and I can’t help but imagine some 18th century constable being told of the case in his own terms.
    A man read the glowing words of a woman many miles away and followed her instructions to kill himself.

    She’s lucky not to be burned at the stake for witchcraft.

    Definitely undercharged.

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  57. Just 'nutha ig'nint cracker says:

    @HarvardLaw92: I meant to do this earlier, but I wanted to thank you for this explanation of the case, if you will. I could see that the arguments supporting her in the article were fatuous, so that wasn’t the problem. My problem was that I found that I was needing to lean toward “overcharged,” even though I didn’t believe that was the problem. Your argument in this post was compelling and logical. Thank you.

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  58. Pch101 says:

    The points that I’ve made are similar to those made by Daniel Medwed as cited above, the ACLU and the state PD’s office. Not exactly radical.

    I watched a bit of the prosecutor’s closing argument, and it was largely an appeal to emotion. (The girl’s not a sweetheart, I get it.)

    The fact remains that suicide is not a crime in that state and she didn’t pull a trigger, start a motor or hand him a noose.

    I wouldn’t mind if the laws were changed so that there a clear, narrow duty of due care to prevent it, but that change wouldn’t apply to this defendant. There are times when bad people should be acquitted.

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  59. Just 'nutha ig'nint cracker says:

    @Pch101:

    Again, this passion to hold a minor responsible for legal adult behavior is astounding.

    No, based on the arguments and counterarguments presented so far, an adult who goaded him back into his car would also be guilty of involuntary manslaughter,

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  60. Just 'nutha ig'nint cracker says:

    @HarvardLaw92:

    You’re clearly arguing for the sake of argument at this point.

    Wa! That sure took a long time. Not wanting ANYONE ELSE EVER to have the last word is sort of a hallmark of pch’s schtick here.

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  61. HarvardLaw92 says:

    @Pch101:

    I’m having a difficult time understanding why you evidently just refuse to accept that suicide actually is illegal in Massachusetts. You keep repeating that flawed assertion – despite having been repeatedly told in detail why it’s incorrect.

    Once again, the common law criminalizes both suicide and attempted suicide. This means that the default situation in every state is that suicide is illegal unless and until that state’s statutory law preempts common law. MA statutory law has not done so, ergo suicide and attempted suicide are common law crimes in the Commonwealth of Massachusetts, as is assisting another in the same. This is not a matter of debate or a philosophical exercise. It is fact. Not because I say so. Because it IS so. Feel free to ask a different attorney if you like. They’ll tell you the same thing. It will remain fact until the MA legislature decides otherwise.

    The state doesn’t have to act to criminalize it. It’s criminalizes by default unless and until the state acts to the contrary.

    Which it has not done and which wouldn’t help this defendant anyway.

    All else aside, can you at least confirm that you understand this simple set of facts?

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  62. Pch101 says:

    I’m having a difficult time understanding why you evidently just refuse to accept that suicide actually is illegal in Massachusetts.

    Provide a link to the statute.

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  63. James Pearce says:

    @Pch101:

    Provide a link to the statute.

    Pardon my interruption.

    Here’s the link.

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  64. HarvardLaw92 says:

    @Pch101:

    Yet again:

    There is no statute. The common law is the bedrock, default body of law in every state. Everything which is not addressed to the contrary or differently in statutory law is governed by the precepts of the common law – a concept which I have explained to you no less than 5 times in this single piece, most recently in the comment to which you just replied (and evidently ignored).

    So, evidently I need to speak more slowly:

    Common law is the default unless a state passes a statutory law superseding it.

    Common law criminalizes both suicide and attempted suicide.

    The default position, therefore, in EVERY state is that suicide and attempted suicide are illegal. Once a state enacts a statutory law which says something different, common law no longer applies.

    MA has no statute on its books decriminalizing suicide. It has no statute decriminalizing attempted suicide. It has no statute decriminalizing assisting another in pursuing / citizenship committing the same.

    As a result, the common law has not been preempted with respect to suicide in MA. It remains in effect today just as it was in effect the day that Massachusetts became a sovereign entity. It has never been preempted in MA with respect to suicide.

    Suicide, attempted suicide and assisting another person in either of them are common law offenses in the Commonwealth of Massachusetts. They are illegal there because the common law criminalizes them. They will remain so until such time as the legislature decides to change that situation.

    Now, if you either can’t or won’t accept that, there’s nothing else I can do for you. I suggest that you ask another attorney.

    But do yourself a favor – when they tell you that I’m right, consider giving them the benefit of the doubt.

    Or just attend law school. The first option is cheaper.

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  65. HarvardLaw92 says:

    @James Pearce:

    That isn’t a link to a statute (no offense intended). There is no statute in MA which addresses suicide. It’s governed by common law (which is essentially unwritten with respect to a state’s books).

    With respect to Hernandez, they’re discussing a common law concept called abatement ab initio. Essentially, when a defendant dies before he/she exhausts their appeals, the status of their case reverts to the beginning (ab initio). The conviction and the record are cleared. It’s as if the trial and conviction never occurred.

    If this woman decides to off herself in prison, that would void her conviction as well.

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  66. DrDaveT says:

    @Pch101:

    No, he sent himself back in.

    With her ‘help’.

    I get it that your Libertarian principles don’t allow you to attribute any causal efficacy to events outside the Agent; that we all act purely and solely on our own Initiative and that any Agent can overcome any circumstances, pressures, coercion, influence, or advice by a sufficient act of Free Will. It’s a dumb philosophy, but whatever.

    What you seem wholly unable to grasp is that the Common Law, and in particular Massachusetts state law that derives from the Common Law, does not share this Libertarian belief in the causal sufficiency of individual will. Indeed, it explicitly rejects this analysis of freedom of action, and has for many centuries.

    You’re not just wrong about how free people really are; you’re also wrong about what the law in Massachusetts assumes about how free people really are. And your entire objection to this verdict is that the law is based on a philosophy of agency that is inconsistent with your own. Ironically, this puts you in basically the same position as a Christian arguing that the law should enforce Christian worldviews and doctrines, even when it doesn’t.

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  67. Pch101 says:

    So there is no suicide statute, as I said.

    If it’s illegal, then provide a list of prosecutions for that alleged violation of common law.

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  68. Pch101 says:

    @DrDaveT:

    I’m not a libertarian.

    You don’t have to be one to see what’s wrong with this case.

    If you tell someone on this website to take a flying leap and he literally does it, would you like to go to prison for it?

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  69. HarvardLaw92 says:

    @Just ‘nutha ig’nint cracker:

    Thank you for the kind words. I’m always pleased when people find some value in what I’ve contributed.

    Truthfully, I don’t have a problem with her conviction. Primarily, because I came to believe during my time as a prosecutor that – while there is certainly a punitive aspect involved – the most basic purpose of the law isn’t to punish. It is instead to protect society. This person, aside from being deserving of punishment, represents a danger to society. Society is safer with her removed from it, and that’s how I make my peace with these things.

    In reality, two lives (if not many more than two) have been destroyed here. Both are tragic. There is no silver lining to this disaster. Everybody loses.

    I sympathize with what I know she’s going to be facing. It’s going to be brutal and it’s unfortunate, but it’s also self-inflicted and it’s also deserved. Let’s hope that it gives the next person who might otherwise have done the same a moment of pause in which to make a different decision than this defendant did.

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  70. HarvardLaw92 says:

    @Pch101:

    You were wrong, and I suspect that you already know that & have for a while now. Your contentious nature just won’t permit you to admit it.

    That amounts to being petty. I’m not going to enable that further.

    If you feel that you just must have the last word, which wouldn’t be surprising, then by all means have it :-)

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  71. Pch101 says:

    @HarvardLaw92:

    If suicide is illegal, then provide a list of prosecutions for that alleged violation of common law.

    You can’t do it, can you?

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  72. HarvardLaw92 says:

    @Pch101:

    You well know that nobody is going to prosecute a dead person for committing suicide. The prevailing response to an attempted suicide is commitment, not prosecution – for reasons which should be obvious. The fact that the system has typically chosen to waive prosecution for an attempt in favor of forcing treatment instead does NOT mean that the system CAN’T prosecute. It means that it has CHOSEN not to prosecute. The act itself remains illegal and if the state decides that prosecution is warranted, it retains the option to pursue it. None of this changes the facts of the law – about which you are just wrong.

    Beyond that, no. This isn’t a matter of philosophical debate. It’s a matter of legal fact about which I’m a subject matter expert and you are incorrect & either can’t or won’t accept that. I’m not going to enable you further.

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  73. Pch101 says:

    You have no evidence that suicide is a crime in MA. Just admit it and move on.

    Meanwhile, we should ban the film M*A*S*H. “Suicide Is Painless” must be a felony, right?

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  74. DrDaveT says:

    @Pch101:

    If you tell someone on this website to take a flying leap and he literally does it, would you like to go to prison for it?

    You can’t seriously be claiming that you can’t see the difference in the facts between what Ms. Carter did, repeatedly and vehemently and in person and at the critical moment, and me telling you — once — over the internet — to take a flying leap. Can you?

    Also, you need to Google “common law”. Or do you routinely ask people who have common-law marriages to show you their license?

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  75. Pch101 says:

    @DrDaveT:

    You can’t seriously be claiming that you can’t see the difference in the facts between what Ms. Carter did, repeatedly and vehemently and in person and at the critical moment, and me telling you — once — over the internet — to take a flying leap.

    Why should a jury or judge make a distinction? Because it inconveniences you? Both involve an electronic communication calling for death, which was heeded.

    There is one notable distinction, though: You’re an adult, and she wasn’t. That goes to her favor, not yours.

    We don’t follow common law for suicide, and the statutes that used to criminalize it were repealed. If we did treat it as a crime, then they should have charged Roy with it.

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  76. HarvardLaw92 says:

    @Pch101:

    You have no evidence that suicide is a crime in MA

    I actually do. I just hesitate to expend wasted effort on someone who is more interested in proving himself right (even when doing requires stubborn obstinance to accept error when it is pointed out to him) than he is in ascertaining truth. That having been said, you’ve pissed me off, so:

    We start with the Massachusetts Constitution, in which the reception of English Common Law was enacted as a fundamental article of the original Constitution when it was adopted in 1780, in Article VI, Chapter 6, specifically:

    All the laws which have heretofore been adopted, used and approved in the Province, Colony or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force, until altered or repealed by the legislature; such parts only excepted as are repugnant to the rights and liberties contained in this constitution.

    This article of the MA Constitution remains in force today. It has never been repealed. The English Common Law as it existed in 1780 – save those instances in which the legislature has acted to supersede parts of it by the enactment of written statutes to the contrary or to the amendative – remains the law of the Commonwealth of Massachusetts.

    So, then, let us examine how the Common Law regarded suicide. For this, we turn to Blackstone, which has not only the benefit of being the regarded authority on English Common Law, but also of being temporally situated immediately proximate (1765 – 1769) to the establishment of the colonies as a nation, and by association Massachusetts as a sovereign Commonwealth within that nation. To wit, IV Blackstone 189:

    SELF-MURDER, the pretended heroifm, but real cowardice, of the Stoic philofophers, who deftroyed themfelves to avoid thofe ills which they had not the fortitude to endure, though the attempting it feems to be countenanced by the civil lawo , yet was punifhed by the Athenian law with cutting off the hand, which committed the defperate deedp . And alfo the law of England wifely and religioufly confiders, that no man hath a power to deftroy life, but by commiffion from God, the author of it: and, as the fuicide is guilty of a double offence; one fpiritual, in invading the prerogative of the Almighty, and rufhing into his immediate prefence uncalled for; the other temporal, againft the king, who hath an intereft in the prefervation of all his fubjects; the law has therefore ranked this among the higheft, crimes, making it a peculiar fpecies of felony, a felony committed on onefelf. a felo de fe therefore is he that deliberately puts an end to his own exiftence, or commits any unlawful malicious act, the confequence of which is his own death: as if, attempting to kill another, he runs upon his antagonift’s fword; or, fhooting at another, the gun burfts and kills himfelfq . The party muft be of years of difcretion, and in his fenfes, elfe it is no crime. But this excufe ought not to be ftrained to that length, to which our coroners’ juries are apt to carry it, viz. that the very act of fuicide is an evidence of infanity; as if every man who acts contrary to reafon, had no reafon at all: for the fame argument would prove every other criminal non compos, as well as the felf-murdereer. The law very rationally judges, that every melancholy or hypochondriac fit does not deprive a man of the capacity of difcerning right from wrong; which is neceffary, as was obferved in a former chapterr , to form a legal excufe. And therefore, if a real lunatic kills himfelf in a lucid interval, he is a felo de fe as much as another man

    So, we have now established that the English Common Law held suicide up as being among the highest of crimes, that this treatment was in effect in the English colonies prior to the revolution, and that the citizens of Massachusetts opted to continue this treatment in their adoption of said English Common Law as being the continuing body of law in their new sovereign entity (while reserving the right to themselves, acting via their legislature, to supersede such elements of it as they may see fit if and when the occasion arose).

    With respect to the offense of suicide, they have never done so. The governing body of law with respect to suicide in the Commonwealth of Massachusetts remains the English Common Law of 1780.

    We then turn to the treatment of this body of law by the Massachusetts Supreme Judicial Court (the highest court in the Commonwealth).

    Commonwealth v. Bowen, 13 Mass. 356: The SJC held that suicide is a crime and that incitement of the same constitutes murder. Bowen has never been overturned.

    Commonwealth v. Mink, 123 Mass. 422: SJC held that the accidental killing of another during an attempt at suicide is at least manslaughter, if not murder. Specifically:

    Since it has been provided by statute that ‘Any crime punishable by death or imprisonment in the State prison is a felony, and no other crime shall be so considered’, it may well be that suicide is not technically a felony in this Commonwealth. But being unlawful and criminal as malum in se, any attempt to commit it is likewise unlawful and criminal

    Mink has also never been overturned.

    So, we now have a situation where we know what English Common Law had to say about suicide (a provision of which, just incidentally, wasn’t overturned in England until the 1960s).

    We know that English Common Law as it existed in 1780 constitutes the basic law of the Commonwealth of Massachusetts, as expressed in the Constitution of the Commonwealth.

    We know that the highest court in Massachusetts has defined both suicide as a crime, attempted suicide as a crime, and incitement of suicide as a crime.

    We must then turn to the body of statutory law, in order to ensure that none of these provisions have been subsequently changed or nullified via statute.

    There is no statute in the MGL which addresses suicide, beyond stipulating in M.G.L. ch.201D §12 that:

    Nothing in this chapter shall be construed to constitute, condone, authorize, or approve suicide or mercy killing, or to permit any affirmative or deliberate act to end one’s own life other than to permit the natural process of dying.

    So no support there. The statutes bear out the contention that suicide is impermissible under the laws of the Commonwealth, which with regard to this particular subject remain the English Common Law of 1780. Accordingly, suicide remains a crime in the Commonwealth.

    So then we must turn our attention to the attempt of suicide, which Common Law doesn’t really address well enough to shut you up. For that, we go to M.G.L. ch.274 §6, to wit:

    Whoever attempts to commit a crime by doing any act toward its commission, but fails in its perpetration, or is intercepted or prevented in its perpetration, shall, except as otherwise provided, be punished as follows:

    First, by imprisonment in the state prison for not more than ten years, if he attempts to commit a crime punishable with death.

    Second, by imprisonment in the state prison for not more than five years or in a jail or house of correction for not more than two and one half years, if he attempts to commit a crime, except any larceny under section thirty of chapter two hundred and sixty-six, punishable by imprisonment in the state prison for life or for five years or more.

    Third, by imprisonment in a jail or house of correction for not more than one year or by a fine of not more than three hundred dollars, if he attempts to commit a crime, except any larceny under said section thirty, punishable by imprisonment in the state prison for less than five years or by imprisonment in a jail or house of correction or by a fine.

    Fourth, by imprisonment in a jail or house of correction for not more than two and one half years or by a fine, or by both such fine and imprisonment, if he attempts to commit any larceny punishable under said section thirty.

    So oops – attempting suicide is defined by statute as being criminal as well.

    So there you have it. The common law, via Blackstone, says you’re wrong. The Massachusetts Constitution says you are wrong. The Massachusetts Supreme Judicial Court says you are wrong. The Massachusetts General Laws say that you are wrong. I, based on a lifetime spent immersed in the law, say you are wrong.

    The next time you want to play these pissy games of yours, little boy, don’t pick a fight with someone who actually knows more about a subject than you do.

    Have a nice evening.

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  77. HarvardLaw92 says:

    @Pch101:

    We don’t follow common law for suicide

    Really? Don’t tell Virginia that. They just held in 1992 that suicide remains a common law crime in the Commonwealth of Virginia …

    Wackwitz v. Roy, 418 S.E.2d 861 (1992)

    You’ll want to pay specific attention to this passage:

    The General Assembly has declared that “[t]he common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly.” Code § 1-10. [This is the exact equivalent of the Massachusetts Constitution, Article VI, Chapter 6] Although the General Assembly can abrogate the common law, its intent to do so must be “`plainly manifested.'” Hyman v. Glover, 232 Va. 140, 143, 348 S.E.2d 269, 271 (1986) (quoting Hannabass v. Ryan, 164 Va. 519, 525, 180 S.E. 416, 418 (1935)).

    We are aware of only one legislative enactment that addresses suicide as a crime. Code § 55-4 provides that “[n]o suicide … shall work a corruption of blood or forfeiture of estate.” Thus, although the General Assembly has rescinded the punishment for suicide [Massachusetts has not], it has not decriminalized the act. [Neither has Massachusetts] Suicide, therefore, remains a common law crime in Virginia as it does in a number of other common-law states [Among them, Massachusetts]

    and the statutes that used to criminalize it were repealed

    Where, exactly, was the common law criminalization of suicide repealed in Massachusetts? Be specific, please …

    And please let me know if you get tired of having your ass handed to you.

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  78. HarvardLaw92 says:

    @Pch101:

    Why should a jury or judge make a distinction? Because it inconveniences you?

    No, because according to SCOTUS, as expressed in Brandenburg v. Ohio, 395 U.S. 444 (1969), they are required to make that distinction, via applying the three prongs of the Brandenburg test.

    Her actions well meet all three of them. Rhetorically telling you to “take a flying leap” on the internet, while tempting, granted, does not.

    On second thought, maybe you should go to law school …

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  79. James Pearce says:

    @HarvardLaw92:

    That isn’t a link to a statute (no offense intended)

    No, man, it’s an hilarious joke. I’m only offended you didn’t get it.

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  80. HarvardLaw92 says:

    @James Pearce:

    Sorry, I’ve been a little preoccupied elsewhere on this one 😀

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  81. Andre Kenji says:

    I once read a story about a teenager that killed himself after he asked in a internet forum about suicide. He asked for the best suicide methods, and they gave him what he asked for. I don’t like reading people in the internet saying that they are considering suicide precisely by that reason, and it’s pretty obvious that giving incentive to people with suicidal thoughts is enough to make them do it.

    If that’s not murder(In any kind of law, Common, German, Roman, Sharia) I don’t know what is.

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  82. Gustopher says:

    @HarvardLaw92:

    as the fuicide is guilty of a double offence; one fpiritual, in invading the prerogative of the Almighty, and rufhing into his immediate prefence uncalled for; the other temporal, againft the king, who hath an intereft in the prefervation of all his fubjects;

    If you actually pronounce all those Fs like Fs, and not the Ss that we know they really are… it’s hysterical. I don’t care what the subject matter is, or how tasteless it is to laugh about it, it’s utterly hyfterical.

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  83. Gustopher says:

    @HarvardLaw92: I was once told that attempting suicide was a crime in New York State as well, and that one of the rationale for this was that it was a lot easier to arrest someone and put them on suicide watch while getting everything in order, than to involuntarily commit someone for observation at 3am on a weekend.

    I don’t know whether this was true, or just what they told my friend so he would voluntarily commit himself for observation. (In which case, bravo to the lying ER staff, very well done)

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  84. HarvardLaw92 says:

    @Gustopher:

    We actually decriminalized attempted suicide in 1919, but somehow assisting or attempting to assist another in the act of suicide remains illegal in the State of NY.

    NY Penal Law §120.30

    A person is guilty of promoting a suicide attempt when he intentionally causes or aids another person to attempt suicide.

    Class E Violent Felony, Penalty: typically no jail time. Probation for 1 1/2 to 4 years and you retain a felony conviction on your record.

    and we take it further in NY Penal Law §120.35

    A person who engages in conduct constituting both the offense of promoting a suicide attempt and the offense of attempt to commit murder may not be convicted of attempt to commit murder unless he causes or aids the suicide attempt by the use of duress or deception.

    Class B Violent Felony, Penalty is the same as any other Class B Violent – mandatory minimum of 5, maximum of 25. Obviously you retain the felony conviction there as well.

    That having been said, NY Mental Hygiene Law (MHY §9.39) makes it pretty easy to involuntarily admit anyone.

    It’s fairly complicated, but the short version is that we can involuntarily hold anybody satisfying the criteria solely on the opinion of a single physician for up to 48 hours. We can extend it up to 15 days if the detainee is evaluated by a psychiatrist on staff.

    Obviously there are provisions for a hearing at the request of related parties, but the patient retains the right to adjourn the hearing and stay if they so choose. Beyond 15 days, we get into the involuntary commitment proceedings, which are a whole other novel length explanation.

    The sole determining criterion in both instances is danger, either to self or to others, as determined by medical professionals.

    It gives the state a chance to intercede and avoid the potential suicide by getting the person help if they indeed do require it.

    Short version: if you’re suicidal, NYS will help you (whether you want to be helped or not). If you try to assist somebody else in the pursuit of suicide, you’re going to be arrested. Obviously none of this proscribes the person being arrested on some other matter and subsequently placed on suicide watch as a result of that as well. There are many ways to intervene in NYS 😀

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  85. Pch101 says:

    This legal revisionism is just wonderful. But suicide isn’t illegal today in most of the US because we now see it as a mental health issue instead of as an offense against the state or God or whomever.

    Massachusetts no longer uses common law to define crimes against people, such as murder and assault. You won’t find suicide in its statutes because it isn’t illegal. Roy committed no crime.

    https://malegislature.gov/Laws/GeneralLaws/PartIV/TitleI/Chapter265

    If it is a crime in MA, then list the prosecutions. Go ahead, don’t be shy.

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  86. HarvardLaw92 says:

    @Pch101:

    You really are a piece of work. You should do some reading about what the abject refusal to admit / acknowledge errors & mistakes, even when presented with conclusive evidence of the same, entails from a psychological perspective.

    Hint – NPD …

    Know what else you won’t find defined in MGL ch. 265 (or for that matter anywhere else in the MGL)?

    Manslaughter …

    We conveniently have the punishments delineated, but there is no definition of the crime.

    For that matter, there is neither a definition nor a punishment delineated in the MGL for:

    Affray
    Contempt of court
    Escaping from custody post arrest
    Interfering with a police officer
    Resisting arrest
    Solicitation of a felony
    Obstruction of justice
    Forgery
    Uttering

    just to name a few. Know why? The all flow from, and continue to be offenses as a result of, Massachusetts being a common-law realm.

    I guess under your bizarre theory of the law, we have to assume that none of those offenses (or, for that matter, any other common law offenses which aren’t explicitly delineated in the MGL) are illegal in Massachusetts any longer as well. :roll:

    With that, I’m honestly done with you. If you feel that you must continue jousting at windmills and making a fool of yourself, well, have fun.

    You may commence your customary pursuit of having to have the last word at your convenience.

    Have a nice day 😀

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  87. @James Joyner: Ours is far more a common law system, especially as to how we treat judges and their powers of interpretation.

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  88. DrDaveT says:

    @Gustopher:

    If you actually pronounce all those Fs like Fs, and not the Ss that we know they really are…

    On a complete tangent, I am enough of a writing-and-printing geek that this always really pisses me off. The character being used in those quoted passages — even if they were typeset — was not a lower-case f. It was a lower-case long s, which differs from the f in (for example) not having a cross-bar. It’s just another way of writing an ‘s’, just like there are two different basic forms of the lower-case letters ‘a’ and ‘g’ . When you render it in a modern font, you use an ‘s’, not the wrong bleeping letter entirely.

    Similarly for “Ye olde ____”. Sorry, that first letter was never a Y, it was a thorn. if you’re going to typeset it you should either use an actual thorn, or modernize it by using the combination ‘th’.

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  89. Just 'nutha ig'nint cracker says:

    @DrDaveT: I did know about the letter s in old typeface, but I never knew about the thorn. I had thought that it was dropped during the Middle English period, but I haven’t studied all that much linguistic history. Interesting comment. Thanks!

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  90. Pch101 says:

    Funny, because this is the only corner of the entire interwebs where anyone is claiming that Roy violated a law. It’s an especially odd claim given that no statute exists, no one ever filed charges against him, and no one else ever gets prosecuted for it.

    Sorry, but I’m going with the ACLU and others on this one. I would expect a generally liberal audience to listen to the ACLU. For that matter, has the media found even one legal scholar or civil rights group that does like this verdict?

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  91. KM says:

    Jame, please release the comment caught in filters.

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  92. grumpy realist says:

    @Pch101: Do you understand the difference between “statute” and “Common Law”?

    HarvardLaw92 must be feeling like someone trying to explain General Relativity to someone who refuses to learn any arithmetic.

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  93. grumpy realist says:

    @Pch101: I also suggest you read up on what is known in English law as felo de se. All of that is what we here in the US took over, lock, stock and barrel.

    Why do you think that suicides were regularly judged to have committed their acts of self-harm “while of an unsound mind”? Because it allowed them then to be buried in hallowed ground. Otherwise, no way–it was considered a CRIME.

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  94. RangerDave says:

    *chuckle* HarvardLaw92’s responses in this thread amply demonstrate why one should never bring a Google search to a Lexis/WestLaw fight. That’s some solid KeyCite / Shepardizing work.

    Out of curiosity, HL92, are you in litigation or have you just somehow maintained your legal research chops over the years? After 8 or 9 years of transactional work, I doubt I could cite my way out of a paper bag at this point.

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  95. HarvardLaw92 says:

    @RangerDave:

    Thank you for the kind words. Former AUSA, Southern District of NY. I do M&A / complex corporate taxation strategy now.

    Before we moved earlier this year, I quietly tried to do as much pro bono as I could fit into my schedule – always litigation and where possible with underserved litigants & legal oddities. It’s a mitzvah, and it helps keep the brain sharp.

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  96. DrDaveT says:

    @Pch101:

    But suicide isn’t illegal today in most of the US

    Most of the US isn’t Massachusetts, which is the only law that matters here. Seriously.

    Massachusetts no longer uses common law to define crimes against people, such as murder and assault.

    Cite?

    Yeah, I thought not. This explains why (as was pointed out to you earlier) the very code section you cite defines punishments for Manslaughter, but not a definition of Manslaughter. It’s still defined by the Common Law.

    Why should a jury or judge make a distinction?

    Um, because the facts of the case matter? Especially when, as in this case, there is no statute that you could use to apply a bright-line rule?

    You have persistently ignored the judicial precedent on this, in Brandenburg v. Ohio. If you think that’s bad law, say so — there’s no shame in that. There are lots of precedents out there that I think are bad law (see e.g. Hobby Lobby). You’re entitled to your opinion. But that’s not even remotely the same thing as being able to claim that the law was applied incorrectly here.

    If I were the ACLU, I’d be criticizing the ruling too — regardless of whether I thought they got the law technically right or not.

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  97. HarvardLaw92 says:

    @grumpy realist:

    Because it allowed them then to be buried in hallowed ground

    Correct. It also avoided the customary punishments for suicide – they’d carry your dead body to a crossroads, toss it into a pit and drive a rather large stake through you, pinning you to the ground – there to rot as an exemplar to others.

    Oh, and all of your assets were forfeited to the crown, reducing your surviving immediate family – if you had any – to pauperism.

    They ended those punishments in 1822, but continued to prosecute attempted suicides in the UK for another 139 years, right up until 1961.

    I happened upon an interesting leader from the Times which concerned a year in which there were some 5,387 known failed suicide attempts in Britain. Of those, 613 were prosecuted. 33 of those were sentenced to prison.

    The year was 1956 … :-)

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  98. grumpy realist says:

    @HarvardLaw92: Now that “assets forfeited to the Crown” sounds like they swiped the idea from the Roman law for treason at some point.

    I did a paper involving canon law at one point, but concentrated on excommunication. Should have done it on the canon law involving suicides…

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  99. mannning says:

    @HarvardLaw92:

    Thanks for the lesson on common law. I did not appreciate that the US had fully adopted the English Common Law (except for Louisiana) of 1780, with some abrogation state by state over time, including my state of Virginia.
    That Teen is quite guilty.

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  100. mannning says:

    While the subject of law is on the table, I have a deviant question. A number of very smart people have written about Natural Law. Where does that come into our legal system?

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  101. grumpy realist says:

    @mannning: so-called “Natural Law” has ended up getting used as a Deux Ex Machina/Hail Mary pass when you don’t have any other arguments to use.

    Aside from that, it comes in through the typical Roman Law–>Canon Law–>influences on English Common Law. Self-defense, all the Due Process stuff we swiped from the Inquisition (no–not that one–the 12th century Southern France one), prohibition against double jeopardy. All argued from Natural Law.

    Considering that “Natural Law” has also been used as the rationale for anti-miscegenation laws, barring women from being lawyers or voting, the “natural inferiority” of black people–let’s just say that falling back on “Natural Law” arguments doesn’t impress me that much.

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  102. HarvardLaw92 says:

    @grumpy realist:

    I usually just limit the response to “Natural law is a philosophical construct, not a legal one, and we’re not discussing philosophy”

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  103. mannning says:

    A number of people have claimed influences on the Declaration of Independence and the Constitution, as well as on Common Law from Natural Law. The Founding Fathers were familiar with the works of Justinian and Cicero, early Israeli Law, St.Thomas Aquinas, and English Law. Such a melding is possible, but IANAL means I have not sought out the specific connections. The one clear difference between all of these sources appears to be the Judeo-Christian foundation of some proponents of Natural Law, which would not sit well with Atheists and Agnostics. Perhaps that explains the use of “Creator” just once in our documents.

    Natural Law seems to be a valid pursuit in academia, with men like Arkes, Finnis, George, Grisez, and Ramman, but it is probably just another sidebar to Philosophy, as Harvard stated.

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