“It does the project of equal treatment no favors to extend it beyond its proper scope.”
Recently, the Minnesota Supreme Court upheld the appeal of a man convicted and sentenced to a one-year prison term for having aided the suicides of two depressed people through advice and encouragement he had offered them over the Internet.
The grounds on which the appellant successfully challenged his conviction were that the statute under which he had been prosecuted and convicted — and which proscribed ‘encouraging, advising or assisting another in committing suicide’ — violated his First Amendment right to free speech.
As so often happens in such cases, the judicial decision was not altogether clear-cut. What the Minnesota Supreme Court held was that, whereas the statute under which the appellant had been charged and convicted did violate the First Amendment because it prohibited encouraging or advising another person to commit suicide, the statute did not run afoul of the Constitution where it proscribed speech that assists another to commit suicide. With one dissenting opinion, the Court ruled that it had yet to be decided judicially whether the appellant had assisted either suicide through advice and encouragement that he had given them and so referred his case back to the district court.
In his dissenting opinion, Justice Page argued that, by deliberately omitting to find the appellant guilty of assisting either suicide when it gave its initial verdict, the trial court had effectively ruled that the appellant had not done so, and so his case should not be heard again.
I strongly suspect that, when the case is eventually heard, the appellant will be found guilty of having assisted in the suicide of the man who hung himself through the advice the appellant rendered.
Doubtless, some libertarians will demur from a law that forbids such assistance on the grounds that it infringes the associational liberty of individuals. However, I would strongly disagree. As was pointed out in the ruling, many people feel suicidal inclinations when suffering from clinical depression which precludes any decision in favor of suicide in such a state from being a truly informed one warranting respect.
There is one aspect about the Court’s majority ruling, however, which I do find puzzling.
It argued in favor of the law’s distinguishing between assisting and encouraging another to commit suicide on the grounds of their respectively different causal relations in which these two acts stand to any resultant suicide. Whereas an act of assistance, even though merely verbal (such as would occur by giving the suicidal person information on how to kill themselves) has a direct causal relation to the resultant suicide, the Court denied encouraging another to commit suicide did. The Court opined:
‘Unlike the definition of “assist”, nothing in the definition of “advise” or “encourage” requires a direct, causal connection to a suicide… Thus, a prohibition on advising or encouraging includes speech that is more tangential to the act of suicide and the State’s compelling interest in preserving life than is speech that “assists” suicide… Therefore, because the “advise” and “encourage” prohibitions are not narrowly drawn to serve the State’s compelling interest in preserving human life, we conclude that they do not survive strict scrutiny.’
This distinction seems to me spurious. Suppose you are walking home one night across a bridge above a river on which you see someone standing precariously and in danger of falling. You warn the other person that they are in danger of falling into the river and drowning who replies by saying that is exactly what he wants but lacks the courage to do.
Suppose, upon hearing what this other person says, you take their hand and guide them to the edge of the ledge, all the time urging them to jump which they then do.
You have here clearly assisted another to commit suicide.
Suppose, now, instead that you merely stand and talk the other person into jumping, for example, by pointing out they will instantaneously lose consciousness upon impact with the water and hence should not feel afraid of jumping, and, in any case, life is not worth living anyway.
Here you have merely encouraged another to commit suicide .
Are these two acts so very different in the causal relations in which they respectively stand to the acts of suicide with which each is connected, such that the first act warrants proscription but the second does not?
I, for one, cannot see any difference between them in terms of their respective degrees of causal relatedness to each suicide.
That being so, I cannot see why it should not be made an offense to encourage another person to commit suicide, if, as I also think, it should be an offense for anyone to assist another to commit suicide.