Under German jurisdiction there is an offence calles killing upon request, which reqires the victims consent. The punishment is significantly less severe than for murder or manslaughter. The rationale is, of course, that the offence is directed more against general ethical standards than against the will of the person who consented.

Regina v Dudley & Stephens throws up an interesting argument, as always. Had the victim been conscious and agreed to draw lots, common law on this issue could be quite different today.

Dear Editor, please remove that silly and incorrect apostrophe, the work of some malicious electronic gremlin I suppose, from 'its' and restore the word to its correct grammatical form. Replies to Jochum's and Matt's interesting answers pending.

Carter case, in British Columbia, is a very interesting example of this, because -among different things- it states a constitutional right to die. When we talk about the "right to life", by its own essence, it means that a person can decide whether to live or not, within some limitations as it´s considered one of the most important rights. And talking about a "right to die" means that a person has a constitutional right to decide whether or not to go on living. We even honor our soldiers, policemen, firemen who give their life in order to protect us, because we think that there some very important interests that can exceed life itself.. So if we accept both rights (to live and to die) we are faced with the need to recognize some kind of "external" intervention in order to guarantee them. In my country, suicide is not a crime, so....one can decide to take his own life without fearing of punishment (at the beginning of the 20th century, in Argentina suicide was consider a crime which sanction fell over the suicidial's family and property).

From a bioethical point of view, it's general accepted that quantity of life it's not a legally protected interest per sé. That before quantity of life a person can understand that quality of life, dignity and freedom are far more rights that must be protected. There's no obligation to live (I'm leaving religion aside on purpose because I'm talking from a secular point of view). And when we talk about end of life decisions, the tension between rights and interests are constant, because you are face with a dilemma. That is, there's no good solution, all you have are choices, and each choice has it pros and cons. You can't protect at the same time both legal interests: if you choose to protect quantity of life, that person can understand that his dignity is much more important, that he doesn't want to suffer from his illness, he doesn't want to experience pain and doens't want to face physical deterioration,doesn't want to lose autonomy or to depend on others and doesn't want to fail if he decides not to go on living, or is phisically disable and cannot commit suicide and needs somebody's help to end his life. There's a bioethical ground to view this kind of cases as not a crime itself and to try to regulate them away from criminal codes.

From a criminal point of view inform consent, a person's autonomous decision can be understood as a justification cause. It seems to me that a person who helps other to die based on his/her request, especially moved by pitty, should not be considered as a criminal, or at least, have a lesser punishment with an option of acquittal by judge balance decision.

And there's studies that show that it's better to regulate this issue than to simply forbid it, because it's a better way to have effective social controls over that kind of behaviour.

it's really interesting to figure out and discuss what kind of obligation it would be placed on the States if we affirm that there's a right to die......it means that the State should merely not interfere with our decision? it means that the State should guarantee its excercise? or it means that the State should fully assure a person all the necessary means to get his own death the way he plans to?

Susie.

Just a couple of comments on these varied and interesting responses. Matt raises the issue of drawing lots in cases where one person must be sacrificed in order that many will survive. The fact that each participant consents to take their chance is certainly significant, but the defence of necessity is probably not confined to cases where lots are drawn and, in extreme cases, necessity may excuse or justify killing a non-consenting innocent, if the stakes are sufficiently high. If necessity is put aside, there is a partial defence to murder in the state of Victoria in South Eastern Australia, which has interesting parallels with the drawing of lots. A person who joins a suicide pact, kills their partner but then fails to take their own life is guilty of manslaughter, not murder. There is room for speculation about the reason for restricting the benefits of the partial defence to defendants who intended to take their own lives.

Jochum's reference to the German offence of killing upon request certainly raises the issue quite directly. The problem case that might arise here is the one where D offers V a large sum of money to be put to death solely in order to enjoy the pleasure of killing another. V agrees, being weary of life and perceiving the advantage of providing additional benefits to his family. One might take this case as a strong example against permitting reliance on a partial defence of consent or of counting this as something less than murder.

Maria raises the issue of euthanasia and the possibility of a complete justification or excuse based on consent. But euthanasia strikes me as simply a variant on the claim that necessity excuses or justifies. A legislature may choose to permit and regulate the taking of life to avoid suffering. But this would be a specific and limited statutory defence of necessity. In the absence of such legislation we are left with the original question whether consent should be a partial excuse. This is a far more sympathetic case, of course, than the thrill killer mentioned earlier. If there is to be a partial defence, is it possible to limit it to sympathetic cases?

Yes, Ian. I think is possible to limit it to sympathetic cases, as motive/intention is a main issue in criminal law and in bioethics. Intentions count. It's not the same to have a,lets say, medical doctor who provides a potasium shot to his patient to relief him of unbearable pain and at his request, that the same doctor with the same potasium shot who kills his patient, without his consent, only to get his money or to run away with the patient's wife.

Take a look at the case Baxter v. Montana (Montana Supreme Court, 2009) from the State of Montana. In this case (which started off as a constitutional challenge to the charge of homicide for physician assisted death/suicide), the Court found that a terminally ill patient's consent to physician aid in dying was a statutory defence to a charge of homicide against the aiding physician.

Under Montana law, consent can be available as a defence to a criminal charge but that consent is ineffective IF, it is it is "against public policy to permit the conduct or the resulting harm". The Supreme Court found that it was acts of "sheer physical aggression that breaches public peace and endangers others" that was against public policy. The Supreme Court then concluded that the situation of physician aid in dying (note the limitation here i.e. dying), did not satisfy the that definition. Consequently, consent is a defence (or a 'partial excuse') and by virtue of the Court's public policy analysis which contains the activity to the context of a physician aiding a dying patient - it also appears to be limited to sympathetic scenarios or cases.

I should point out though that the Montana Supreme Court only extended the consent defence to situations where the patient self-administers the lethal dose (obtained through the physician) and therefore does not technically extend to cases where the physician provides euthanasia.

Thanks, Mary, for the heads up on Baxter v Montana, which holds that consent can bar a physician's criminal liability for assisting a terminal patient to take their own life in Montana. This is certainly an instance involving sympathetic circumstances. But this does seem to be a quite limited holding. It is not a case where the physician could be said to need a defence to a charge of murder, for the physician does not cause their patient's death. The more challenging cases are those in which the defendant does cause death, in a jurisdiction where euthanasia is not lawful, but does so at the request or with the consent of the victim. Here the question is whether a partial defence, which reduces murder to as lesser homicide, should be available. So, for example, a compassionate defendant may end the life of a loved relative, at their request, to put an end to their physical suffering.

Euthanasia upon request or consent is a very special case. As I mentioned earlier, there is a partial defence, in Victoria, of killing in pursuance of a suicide pact. Going further afield, the German Criminal Code s216 makes it a lesser homicide to take the life of another in response to their request. German colleagues tell me that the Code provision is not limited to cases of 'mercy killing'.

In Uruguay's Criminal Code art. 37 allows to exonarate somebody who kills for mercy with the victim's consent. In Argentina's project for modifying our criminal code there's and article which states the same. Neither of them makes a difference whether the author is a physician or plain people. Susie.

Although euthanasia is not lawful in Jordan, a partial defense which reduces murder to assisted suicide is available.

Such defense should not be allowed in cases of murder. And Euthanasia is something different. And if this defense is allowed in that case am afraid that in every less developed country the cases of senicide will increase. As this defence will become a good excuse for the culprit to get rid from there aged parents.

You can search for assisted suicide issues and, for example, in Switzerland and Croatia, assisted suicide because of mercy would not be considered as a criminal offence against llife, but still euthanasia as itself is not allowed in both countries and would be considered as murder. Since murder always encopases an action done by the individual against other one, there is no issue of consent; only so called "privileged" offencess can take the provocation, request or consent into account. But still, they would be offences, except in cases of assisted suicide done in mercy when the criminal legislation does not apply. But these differentiations rely upon private legislations of each country, while in general I would argue that basic forms of actions that can bring to culpability could be seen from the concept of guilt in the criminal law itself. The request or consent of victim for murdering would involve direct intention of the perpetrator, so I don't think this would easily pass through the criminal justice Systems as a valid defence.

Dear Kristijan, I agree with you that consent is no answer to a charge of murder in most jurisdictions.  The Indian Penal Code of 1860 provision of a partial defence which reduced murder to a lesser homicide is an interesting exception to the general rule. There are, I believe, persuasive arguments of principle in favour of such a partial defence.  Murder is among the worst of crimes and the conviction of a murderer carries with it an indelible moral stigma.  In jurisdictions where the penalty for murder is mandatory, that indelible stigma is reinforced by the severity of the sentence.  The provision of a partial defence with variable sentencing for the lesser homicide would enable courts to recognise that there are significant moral distinctions to be drawn, even in cases of intentional killing.  In practice, of course, prosecutorial authorities do sometimes exercise a discretion not to prosecute for murder in cases of consensual homicide.  Discretionary enforcement of the law is always problematic.  The question is whether these exercises of merciful discretion should be displaced by the formal provision of an appropriately defined and limited partial defence to murder.

Consent could perhaps be available as mitigation to homicide but should only be available where there was unequivocal consent and that is was independently professionally corroborated.  

It is certainly the case that mandatory life sentences for murder are neither justified nor sensible but handing out new defences would almost certainly lead to other forms of injustice.  If the courts had more discretion on sentencing then there would be no need for special defences of consent.  

If the criminal offence itself already contain excuses that cound bring to less severe penalty, then the defence on such bases does not have to be explicitly legislated. Defence is always in the position to say that perpetuator had an excuse (like, murdering on the exact request of the person who was dying of cancer in terminal stage). It would be for prosecution to prove then that consent was not given or that murdered person had no capacity to give the consent.

Hi all! Maybe we can make a little twist in our approach: in Carter's Case, Canada stated that there's a constitutional right to die, something that the Constitutional Court of Colombia and the Superior Court of Southafrica also agree. If we recognize this right, with constitutional grounds, the exercise of a constitutional right could be the defence in this case, and not just consent.

Cheers. Susie.

Hi all,

There won't be a homonymous answer for all legal systems. Mark these questions.

 1. What difference is there between euthanasia and murder with consent? Is there anybody who would consent without sufficient reason(s)? 

2. This first remark is only helpful if euthanasia is more or less accepted in a legal order.

3. Even if accepted, still 3 questions should be regerded. (a) what are the legally permissable grounds for the will to die (euthanasia)? (b) should one or more professionals judge these grounds? and (c) is legally permissable help or acting itself limited to a certain group of persons, like professionals? 

Succes,

Niels

In recent days Barry, Kristijan, Maria and Niels have provided challenging and stimulating responses to my original question.  I would prefer, however, to dodge the issues relating to the possibility that 'euthanasia', involving the active taking of life, might be recognised as a form of lawful homicide.  That seems to me to be a subject for a separate discussion. My concern has to do with the possibility that consent to die might provide a partial defence which reduces murder to a lesser homicide, with a lesser penalty.  Cases, that is to say, of wrongful killing. Some jurisdictions recognise this possibility already, in the form of a partial defence for the survivor of a 'suicide pact', who is guilty of manslaughter rather than murder even though they meant to kill their partner in the pact, who may have been in perfect health.  

Barry responds with the suggestion that the mitigation, if any, arising from a victim's consent to die can be considered at sentencing, in jurisdictions where the penalty is not mandatory.  (He is of the view that sentences for murder should not be mandatory) Deferring the issue of mitigation to sentencing is certainly possible. The same reasoning can be extended to other partial defences, such as provocation.  In Australia the State of Victoria, where the penalty for murder is not mandatory, has virtually eliminated the partial defences.  The problem I see with that solution to the problem is that the stigma associated with murder, the worst of crimes, is then extended to homicides that may not deserve that degree of condemnation.  That consideration – the ‘labelling problem’ -  may point in the direction of an even more radical solution:  the elimination of any distinction between murder and manslaughter so that considerations of moral desert and dangerousness, together with any relevant matters of aggravation or mitigation could all be considered at sentencing. 

Maria's mention of a 'constitutional right to die' is interesting - I am ignorant of the jurisprudence on this 'right'.  Is it any more than a 'right to be allowed to die'? That is not the same as a right to be put to death by another.  I’m not sure that such a right would exist, even in a jurisdiction where euthanasia is recognized as a form of lawful homicide.

In case of Pretty v. United Kingdom the European Court on Human Rights held that right to life cannot be interpreted in such a way to allow for "right to die". The Atricle of 2 of the corresponding Convention does not deal with the quality of life and with decisions of the person what to do with his/her life. So, to be lawful, it is upon the person herself/himself to decide about the end of the life when being able and to exercise its decision on its own.

Departing from the euthanasia issue I would also depart from the assisted suicide. Assisted suicide is not the same as murder is, since the action is concerned with either supporting one to commit suicide or helping in doing suicide, but suicide itself is done by the person who died. The action concerning "help" can be contained, for example, of providing tools or ensuring circumstances that would allow for person to commence suicide in an easier way. In most of legislations that I know this would not be considered as a murder but as a separate offence against life with lighter sentence imposed for the perpetuator.

When it comes to "right to die" I do not hold the opinion that this can be considered as a "right", even thoug person has right to decide on commencing actions that would lead to his/her death. Rights in legal systems hold the ability to be excersised; by such, legal systems would be obliged to provide all necessary requirements for exercising the right. Death is inevitable, not predictable, personal circumstance of every human being and legal systems cannot easily interfere with that (except when it comes to death penalty or euthanasia). Life may be prolonged, but at the end death would happen sooner or later with no intentional action.

However, departing from all abovementioned issues, and not focusing on the victim in the contextes of "right to die" or assisted suicide, I would argue it is possible to build up defence for murder on the basis of victim's requests to be killed. The basic assumption I would put is that the defendent was convinced and persuaded by the victim in such a way that the victim participated in the commencing of criminal act by influencing intention of the defendent. Participation of victims in any criminal offences commenced against them is always considered as a cricumstance that would go in favor of the defendent.

It is not impossble that such crime would happen under the psychological influence of so called "death subcultures" like Goths, or others whose beliefs are strongly connected with death or even those doing religious rituals (and ritual crimes). For the such a defence to be built, I would put at least these requirements concerning the relationship between the defendant and the victim:

the defendant and victim were personally connected and knew well for each other;

the victim was determined to die;

the victim repeatedly influenced the defendent to kill her/him;

the relationship between the defendent and victim was not abusive;

the defentand would not gain any reward for commencing the offense. 

The second phase would have to consist of proving enough elements to put the prosecutorial thesis in doubt, which would at least consist of the psychological assesment of the perpetuator and finding external evidence that the victim wanted to die.

Dear All: I attach Carter Sentence  to share with you the concept of "right to die with dignity". 

Best. Susie.