“Hard cases make bad law,” according to an old legal maxim used in 1904 by U.S. Supreme Court Justice Oliver Wendell Holmes Jr., and drilled into the minds of generations of law students. The maxim’s wisdom will be proven yet again if current Massachusetts homicide statutes are successfully twisted so as to convict former Boston College student Inyoung You of involuntary manslaughter for her role in the death of her boyfriend, 22-year-old Alexander Urtula.
Urtula committed suicide earlier this year, only hours before he was set to graduate from Boston College, by jumping off the roof of a Roxbury parking garage. You watched her boyfriend’s suicide from nearby, after tracking Urtula through his cellphone—the same instrument with which she had communicated with him in thousands of cruel and disturbing text messages during the two months prior to Urtula’s death. In a press release, Suffolk County District Attorney Rachael Rollins asserted that You had “complete and total control” over Urtula’s psychological and emotional states, and that her “unrelenting abuse” ultimately overwhelmed Urtula’s will to live.
This prosecution bears some resemblance to an earlier Massachusetts criminal case against Plainville teenager Michelle Carter, who was charged back in 2015 with involuntary manslaughter for her role in the death of her boyfriend, Conrad Roy III. Carter maintained a telephone connection with Roy as he carried out his plan to poison himself with the engine exhaust fumes of his truck. After Roy became frightened and exited the truck, Carter urged him to get back in, and Roy eventually succumbed to the deadly carbon monoxide. Carter was convicted in 2017, and her conviction was upheld by the Massachusetts Supreme Judicial Court in early 2019. Most recently, Carter’s lawyers have petitioned the U.S. Supreme Court to review the case. In an indication of the seriousness with which the high court is taking the issue, the justices have asked Massachusetts Attorney General Maura Healey to respond to Carter’s petition, after which we will know if the case will in fact be heard by the high court.
While the facts and legal technicalities of these two cases are complex and nuanced, the heart of the issue can be boiled down to this: Should verbally urging another person to commit suicide be a crime in Massachusetts? If so, how exactly should it be criminalized? While the latter question is currently the subject of heated discussion in legislative circles, what is missing from the conversation is any debate on the former question. Indeed, in the rush to pass judgment on the obviously heedless, reckless, and loathsome conduct of Carter and You, lawyers and lawmakers have jumped to the question of how to best criminalize this conduct without stopping to ask the more fundamental question of whether it should be criminalized in the first place. This is, of course, backwards. The more fundamental question—whether or not to criminalize the act of verbally urging another person to commit suicide—must be addressed before we decide how to go about criminalizing it.
So far, prosecutors have attempted to stretch existing Massachusetts homicide statutes in order to criminalize suicidal coercion. Both Carter and You were charged with involuntary manslaughter despite the fact that there is no existing Massachusetts law that criminalizes (as some variation of homicide) the act of encouraging or even persuading someone to commit suicide. Prosecutors seem intent on twisting existing law in order to prosecute such cases, even though these prosecutions appear to exceed the limits of Massachusetts law. The prosecution’s theory—that Carter (and presumably, You) literally killed their boyfriends with their words—does not pass legal or common-sense muster.
Some have understandably expressed discomfort with the prosecutor’s creative uses of existing law. Prosecuting behavior that is not clearly contemplated and prohibited by the language of a statute violates the constitutional requirement that members of society be given clear notice as to where exactly the law draws the line between criminal and non-criminal conduct. Legal wags have said that in the current era, when so many legislators and the citizens who elect them think that so much conduct should be criminalized, what the legislature might usefully do is enact a statute that says: “It is a felony in Massachusetts to do anything that should not be done.” From a civil liberties point of view, of course, such a statute would be as absurd as it would be unconstitutional. But the effort to stretch the current homicide statute to cover the Carter and You cases presents just such a problem.
To ameliorate these concerns about vagueness and lack-of-notice, some have suggested that a new law be enacted that explicitly criminalizes suicidal coercion. In response to the Carter prosecution, Massachusetts lawmakers introduced such a bill in July of this year. Proponents of the bill see it as filling a gap in current Massachusetts law, and argue that it would better equip prosecutors to go after those who encourage, coerce, or persuade another person to attempt or commit suicide.
But while such a law would alleviate the vagueness concern, it would almost certainly violate the free speech protections guaranteed by both the Massachusetts and U.S. Constitutions because it would criminalize conduct that consists entirely of words. In the absence of either a direct threat or some kind of blackmail aimed to coerce someone to commit suicide, merely urging another to kill himself or herself cannot be criminalized. It is, hard as it may be to accept, merely an exercise in speech.
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Harvey Silverglate, a criminal defense and civil liberties lawyer and writer, is the Freedom Watch columnist for WGBH News. Monika Greco, who is working with Silverglate as a paralegal and research assistant, is a recent graduate of the philosophy master’s program at Tufts University.
