Volume 56

The Puzzle of Inciting Suicide

by Guyora Binder and Luis Chiesa

In 2017, a Massachusetts court convicted Michelle Carter of manslaughter for encouraging the suicide of Conrad Roy by text message, but imposed a sentence of only fifteen months. The conviction was unprecedented in imposing homicide liability for verbal encouragement of apparently voluntary suicide. Yet if Carter killed, her purpose that Roy die arguably merited liability for murder and a much longer sentence. This Article argues that our ambivalence about whether and how much to punish Carter reflects suicide’s dual character as both a harm to be prevented and a choice to be respected. As such, the Carter case requires us to choose between competing conceptions of criminal law, one utilitarian and one libertarian. A utilitarian criminal law seeks to punish inciting suicide to reduce harm. A libertarian criminal law, on the other hand, justifies voluntary suicide as an exercise of liberty, and incitement of suicide as valuable speech. Utilitarian values are implicit in the foreseeability standards prevailing in the law of causation, but libertarian values are implicit in the reluctance of prosecutors to seek, and legislatures to define, homicide liability for assisting suicide. The prevalence of statutes punishing assisting—but not encouraging—suicide as a nonhomicide offense reflects a compromise between these values. These statutes are best interpreted as imposing accomplice liability for conduct left unpunished for two antithetical reasons: it is justified in so far as the suicide is autonomous and excused in so far as the suicide is involuntary. This explains why aiding suicide is punished, but less severely than homicide. Yet even these statutes would not punish Carter’s conduct of encouragement alone. Her conviction although seemingly required by prevailing causation doctrine, is unprecedented.

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