By PAUL MARCUS
The taking of one’s own life has raised ethical, religious, and legal issues for centuries. Although the suicide rate in some countries is declining, in the United States it remains high, virtually equaling the homicide rate each year.
At English common law, suicide was a felony punishable by burial in the public highway with a stake driven through the body and forfeiture of all one’s goods to the Crown. In the minority of American jurisdictions that continue to recognize common law crimes, suicide is in theory a criminal offense; but in practice no penalty has ever been applied in the United States for a successful suicide. Penalties may, however, be imposed for attempting suicide or for aiding another to attempt or to commit suicide.
Until the 1970s the statutes of a number of states forbade attempts to commit suicide. In codified form a typical example is a former Oklahoma law, Okla. Stat. Ann. tit. 21, § 812 (1958) (repealed 1976):
Any person who, with intent to take his own life, commits upon himself any act dangerous to human life, or which if committed upon or toward another person and followed by death as a consequence would render the perpetrator chargeable with homicide, is guilty of attempting suicide.
In states retaining common law crimes, attempted suicide is a criminal offense, but this is not true in most jurisdictions. In the past there was considerable sentiment for making attempted suicide an offense: the thought persisted that it was contrary to societal interest to attempt to take human life, even one’s own life. That policy has been generally rejected today. One who is bent on self-destruction is not likely to be deterred by the possibility of punishment if he fails. Thus, the rationale for punishing attempted suicide is eliminated. Modern American attitudes toward punishing both suicide and attempted suicides are similar to those expressed in England. The English Suicide Act, 1961, 9 & 10 Eliz. 2, c. 60, s. 1, provides that suicide should no longer be deemed criminal.
A different issue arises if an individual, while attempting to take his own life, kills another person. Most commonly, this issue arises when someone who is attempting to prevent another from committing suicide is accidentally killed by the latter. Some lawyers have argued that the sanction for involuntary manslaughter should be imposed upon the person who initially attempted the suicide, for in these cases the death was caused by actions of the defendant that were performed recklessly.
Other lawyers contend that in these cases the defendant should be convicted of murder. Several theories support the argument. First, in jurisdictions in which suicide is a felony, the resulting death could constitute murder under a broadly based felony-murder theory—that is, it is a killing that took place during the commission of a felony. Second, the conviction of murder could be upheld under the theory of transferred intent, where the intent to take one’s own life is transferred to the taking of another’s life. This rule normally applies when the defendant shoots at the victim, misses him, and kills an innocent bystander. Third, the murder conviction could be sustained in jurisdictions such as Illinois, which define murder as a killing by the defendant with knowledge that his “acts create a strong probability of death or great bodily harm to another” (Ill. Ann. Stat. ch. 38, § 9-1 (a)(2) (1979)).
A more troublesome problem arises when the defendant does not seek to take his own life but aids another to commit suicide. At common law, the person who knowingly aided the suicide victim would be considered a principal in the homicide offense if he was present when the suicide occurred; he would be considered an accessory before the fact if he provided aid but was not at the scene at the time of the death. In modern legislation one rendering such aid may be guilty of either aiding a suicide or of aiding a suicide attempt. The issue is troublesome in situations in which the suicide asks for assistance because he is in great pain as the result of a long terminal illness. Although some courts have indicated that such assistance would not result in criminal responsibility, the question is still very much open in most jurisdictions.
If the defendant causes the victim to take his own life, the answer is clearer. When the victim is so severely injured that he is induced to kill himself, the defendant may be held criminally responsible for murder. The principle here is that the death is the foreseeable and proximate result of the defendant’s illegal acts, and the defendant, therefore, may be prosecuted under a homicide charge. Where the defendant’s assault on the victim is less severe, however, the subsequent suicide of the victim may not be deemed predictable. In such instances the defendant, although guilty of assault, escapes criminal liability for the suicide.
In the United States today, one may be held criminally responsible for aiding another to commit suicide, whether successful or attempted. It is also quite clear that appropriate criminal penalties should be imposed to deter behavior that lures another into suicide or attempted suicide. The major policy decision, however, does not fall into these two areas. Rather, members of the public and the police must be given adequate power to intervene in order to save life when persons are threatening suicide, except in situations—perhaps including terminal illness—in which society concludes that suicide is not an improper end to life.