There is a fascinating case in Minneapolis that raises some important free speech issues in an assisted suicide case. William Melchert-Dinkel, 47, was charged with two felony counts of aiding suicide under a Minnesota law that criminalizes even verbal encouragement of suicide. Adding to the novelty is the fact that state prosecutors are charging Melchert-Dinkel in deaths that occurred not only outside the state but outside the country.
Melchert-Dinkel is accused of encouraging the suicides of Mark Drybrough, 32, who hanged himself at his home in Coventry, England, in 2005; and Nadia Kajouji, 18, of Brampton, Ontario, who drowned in 2008 in a river in Ottawa, where she was studying at Carleton University. He has said that he may have encouraged dozens of people to commit suicide and enjoyed the “thrill” of getting people to kill themselves.
He posed as a female nurse under such names as “Cami,” “falcongirl,” “li dao” and others and supplied information on how the individuals could kill themselves.
For example, an email found on Drybrough’s computer from Melchert-Dinkel showed him giving technical advice on how to hang yourself from a door, “you can easily hang from a door using the knob onw (on the other) side to tie the rope to, sling it over the top of the door, attach the noose or loop to yourself then step off and hang successfully.”
I have long been critical of the underlying law as, in my view, an unconstitutional infringement on free speech. This is obviously a sick and demented individual. However, the state is asserting the right to criminalize speech that encourages the commission of a criminal act. That would be a standard that could sweep into areas ranging from civil disobedience to whistleblowing. We have historically distinguished speech from conduct as in the prosecution of Dr. Jack Kevorkian who was shown to have taken direct action in setting up the killing device. Many people have strong political and religious reasons for supporting the right to suicide and supply information on how to commit suicide with the least amount of pain.
Melchert-Dinkel appears not just a poor excuse for a person but he was a poor excuse for a nurse. He was repeatedly cited for neglectIng patients and being too rough with them. His license was revoked last June.
There has been a distinction drawn between encouraging suicide in general and encouraging someone in particular. However, that is hardly a viable distinction for the first amendment since many Internet conversations on the subject are likely with people contemplating suicide. What if someone writes that they are interested in committing suicide and you send the video below:
Through early morning fog I see
visions of the things to be
the pains that are withheld for me
I realize and I can see…
That suicide is painless
It brings on many changes
and I can take or leave it if I please.
I try to find a way to make
all our little joys relate
without that ever-present hate
but now I know that it’s too late, and…
The game of life is hard to play
I’m gonna lose it anyway
The losing card I’ll someday lay
so this is all I have to say.
The only way to win is cheat
And lay it down before I’m beat
and to another give my seat
for that’s the only painless feat.
The sword of time will pierce our skins
It doesn’t hurt when it begins
But as it works its way on in
The pain grows stronger…watch it grin, but…
A brave man once requested me
to answer questions that are key
‘is it to be or not to be’
and I replied ‘oh why ask me?’
‘Cause suicide is painless
it brings on many changes
and I can take or leave it if I please.
…and you can do the same thing if you choose.
While I certainly understand the desire to act in these cases, the Minnesota prosecution demands a full constitutional challenge not only of the charges but the underlying statute itself.
Here is the statute:
Subdivision 1.Aiding suicide.
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.
Subd. 2.Aiding attempted suicide.
Whoever intentionally advises, encourages, or assists another who attempts but fails to take the other’s own life may be sentenced to imprisonment for not more than seven years or to payment of a fine of not more than $14,000, or both.
Subd. 3.Acts or omissions not considered aiding suicide or aiding attempted suicide.
(a) A health care provider, as defined in section 145B.02, subdivision 6, who administers, prescribes, or dispenses medications or procedures to relieve another person’s pain or discomfort, even if the medication or procedure may hasten or increase the risk of death, does not violate this section unless the medications or procedures are knowingly administered, prescribed, or dispensed to cause death.
(b) A health care provider, as defined in section 145B.02, subdivision 6, who withholds or withdraws a life-sustaining procedure in compliance with chapter 145B or 145C or in accordance with reasonable medical practice does not violate this section.
Subd. 4.Injunctive relief.
A cause of action for injunctive relief may be maintained against any person who is reasonably believed to be about to violate or who is in the course of violating this section by any person who is:
(1) the spouse, parent, child, or sibling of the person who would commit suicide;
(2) an heir or a beneficiary under a life insurance policy of the person who would commit suicide;
(3) a health care provider of the person who would commit suicide;
(4) a person authorized to prosecute or enforce the laws of this state; or
(5) a legally appointed guardian or conservator of the person who would have committed suicide.
Subd. 5.Civil damages.
A person given standing by subdivision 4, clause (1), (2), or (5), or the person who would have committed suicide, in the case of an attempt, may maintain a cause of action against any person who violates or who attempts to violate subdivision 1 or 2 for compensatory damages and punitive damages as provided in section 549.20. A person described in subdivision 4, clause (4), may maintain a cause of action against a person who violates or attempts to violate subdivision 1 or 2 for a civil penalty of up to $50,000 on behalf of the state. An action under this subdivision may be brought whether or not the plaintiff had prior knowledge of the violation or attempt.
Subd. 6.Attorney fees.
Reasonable attorney fees shall be awarded to the prevailing plaintiff in a civil action brought under subdivision 4 or 5.
1963 c 753 art 1 s 609.215; 1984 c 628 art 3 s 11; 1986 c 444; 1992 c 577 s 6-9; 1998 c 399 s 37
Note the statute does not contain meaningful protections for free speech and allows the prosecution for anyone who “advises, encourages, or assists another in taking the other’s own life.” The problem is with “advises” and “encourages” which are dangerously vague and ambiguous. This could prove to be an important challenge.
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