Friday, December 17, 2010

“Did Advise and Encourage” Suicide

I don’t know if you’re familiar with the ongoing prosecution of William Francis Melchert-Dinkel for allegedly advising and encouraging suicide in violation of Minnesota law. I must admit, I wasn’t until relatively recently.

If you’d like a brief overview of the case, check out this Wikipedia entry of Melchert-Dinkel. You can also find the criminal complaint filed against him here.

Melchert-Dinkel is charged with violating Minnesota Statute § 609.215(1), which provides, in relevant part, as follows:

Whoever intentionally advises, encourages, or assists another in taking the other's own life may be sentenced to imprisonment for not more than 15 years or to payment of a fine of not more than $30,000, or both.

(A subdivision I didn’t include says it is not considered aiding suicide for a health care provider to administer medication to relieve someone’s pain or discomfort, “even if the medication . . . may hasten or increase the risk of death.” Minnesota Statutes § 609.215(3). Since Melchert-Dinkel doesn’t seem to be a health care provider, that provision presumably isn’t implicated in the prosecution against him.)

What I find particularly interesting about the prosecution against Melchert-Dinkel is the identity and citizenship of his alleged victims. Count 1 of the criminal complaint charges him with violating § 609.215 by advising and encouraging “Mark Drybrough, of Coventry, UK, using Internet correspondence, and Mark Drybrough did take his own life.” Count 2 charged him with violating § 609.215 by advising and encouraging “Nadia Kajouji of Ottawa, Ontario, Canada, using Internet correspondence, and Nadia Kajouji did take her own life.”

According to Wikipedia, Melchert-Dinkel

admitted using two e-mail addresses, and, and the alias Cami D, to advise, encourage and create suicide pacts, typically by hanging, with persons on the internet for four to five years.

I have no idea whether any of that is true. The truth or falsity of this information or of most of the allegations against Melchert-Dinkel aren’t relevant to the issues I want to address in this post. What I want to focus on are (i) holding someone liable for “advising” or “encouraging” someone to commit suicide and (ii) a U.S. state’s prosecuting someone for a crime when the victims were citizens of other countries and resided in those countries.

Let’s start with “advising” or “encouraging” suicide. In a post I did several years ago, I addressed the “encouraging” suicide issue. In that post, I said the only suicide-related crimes in the U.S. are causing someone to commit suicide and assisting suicide. In the post, I explained that the drafters of the Model Penal Code (an influential template of criminal law statutes) noted that causing someone to kill themselves would be a “pretty clever way” to commit murder, but also concluded that we can’t simply make it a crime to “cause” someone to kill themselves.

For one thing, It’s very difficult to determine when what A said or did to B “caused” B to commit suicide. We can’t, for example, hold A liable for causing B to commit suicide simply because A ended a relationship (badly) with B. Aside from anything else, the factual causation issues are too complex, given the current state of our understanding of the human psyche. As I noted in my earlier post on this issue, the drafters of the Model Penal Code decided, then, that someone can be convicted of homicide if they purposely cause another person to commit suicide by using “force, duress or deception” . . . the inclusion of purpose is intended to limit the potential scope of liability, as is the requirement that someone have used force, duress or deception. Model Penal Code § 210.5.

Basically, what the drafters of the Model Penal Code concluded is that if you can show it was A’s purpose to kill B and if A utilized one of these means, then it can be reasonable to infer that A intentionally caused B’s death by using B as the instrument of his/her own destruction. When I think of this aspect of the Model Penal Code, I recall an old case (which I’m too lazy to look up just now) in which Andrew was having a relationship with Beth.

Both were very poor, and Andrew convinced Beth that mutual suicide was better than living in dire poverty in this world; they could be together in the other world. When it came time to kill themselves, he told he she had to go first because he didn’t want to leave her here alone . . . so she did, and he then collected on the insurance policy he’d taken out on her. That scenario pretty clearly would fit within the Model Penal Code’s provision . . . IF, of course, you could show that the persuasion to enter into and follow up on the suicide pact actually "caused" Beth to commit suicide.

The drafters of the Model Penal Code also made assisting suicide a crime for these reasons: Once suicide was decriminalized, you couldn’t be held liable for aiding and abetting a crime because if you aiding and abetted suicide you were facilitating something that isn’t a crime. The drafters of the Model Penal Code were, though, concerned enough about someone who “helps” someone kill themselves that they included a provision criminalizing such assistance if the person “purposely” aids the victim to kill himself/herself.

I’ve recently discovered that at least two states – Minnesota, California – make it a crime to advise or encourage suicide. I quoted the Minnesota statute earlier. California’ statute – California Penal Code § 401 -- is pretty similar. The California state was adopted in 1873, so it antedates the Model Penal Code by about 90 years. The Minnesota statute was adopted in 1963, so it was adopted around the time the Model Penal Code came out.

My problem with the advising/encouraging suicide statutes is that I think they’re probably void for vagueness, aside from anything else. Is it “advising” suicide to create a website – like one I remember browsing through – that describes and evaluates the various ways one can kill themselves? As to “encouraging,” in my prior suicide post I explained why it won’t work under the Model Penal Code’s causing suicide provision . . . and I’m not at all sure it should work otherwise. It seems to me the real “harm” these statues are trying to prevent is causing – in whole or in part – someone to kill themselves . . . a “harm,” IMHO, that the Model Penal Code’s approach captures perfectly adequately.

That brings me to the second issue: Minnesota is prosecuting its own citizen for allegedly advising or encouraging two non-U.S. citizens to commit suicide in violation of Minnesota law. As I explained in another post I did several years ago, U.S. states have statutes that specify when they can exercise jurisdiction over conduct that occurs in part outside of their territory.

Minnesota’s statute is pretty typical of the approach these provisions take. It provides as follows:

A person may be convicted and sentenced under the law of this state if the person:

(1) commits an offense in whole or in part within this state; or

(2) being without the state, causes, aids or abets another to commit a crime within the state; or

(3) being without the state, intentionally causes a result within the state prohibited by the criminal laws of this state.

Minnesota Statutes § 609.025.

As you can see, if we assume Melcher-Dinkel engaged in the conduct alleged in the criminal complaint, then Minnesota almost certainly has jurisdiction to prosecute Melchert-Dinkel for advising/encouraging the suicides of two non-U.S. citizens who weren’t in Minnesota at the time they killed themselves. To understand why that is, you need only parse the crime he’s charged with – advising/encouraging someone to kill themselves – into its elements. Melchert-Dinkel (we’re assuming for the purposes of analysis, only) (i) advised/encouraged these two people to kill themselves and (ii) they committed suicide.

If we assume, again only for the purposes of analysis, that Melchert-Dinkel encouraged these people to commit suicide by communicating online with them from his home in Minnesota, then he “in part” committed the § 609.215(1) crime in Minnesota . . . which means the state has jurisdiction to prosecute him. (The suicides, of course, occurred outside the state of Minnesota.)

This issue usually comes up when a U.S. state – Minnesota, say – wants to prosecute someone who used the Internet to victimize (defraud, for example) one of its citizens. As I tell my students, that’s the more common scenario because it’s usually the jurisdiction whose citizen has been victimized that wants to prosecute the perpetrator. (That was the scenario in my earlier post on jurisdiction.) As I also tell my students, though, if you have someone who committed (or is alleged to have committed) multiple crimes involving multiple victims, each of whom is located in a different place, then the most efficient approach to prosecuting that person is to prosecute him/her in the jurisdiction in which all/most/many of the victims were located.

I’m guessing that’s the theory behind the Melchert-Dinkel prosecution in Minnesota. And it is, in a sense, a very admirable approach . . . a jurisdiction taking responsibility for the (alleged, again) bad acts of its citizen.

I wonder if Melchert-Dinkel has tried to challenge the state’s jurisdiction over him? I can’t find any reported decisions involving this case, so I suspect not . . . but he might still decide to do so.


Past Midnight said...

He did indeed challenge the states jurisdiction. He lost.

Susan Brenner said...

Thanks for letting me know that.