Death and Serious Injury

Death and Serious Injury

The previous ground ended on the point that consent cannot by itself excuse serious injury that no other ground covers, and homicide is the extreme case of that point. Subsection (2) makes consent a defense to a bodily-injury offense in three situations: the injury consented to is not serious, the conduct and injury are reasonably foreseeable hazards of joint participation in a lawful activity, or the consent establishes an Article 3 justification.¹ Those grounds leave a region where consent does no work, which is serious injury that is neither a hazard of a joint lawful activity nor otherwise justified. A killing done at the victim's request sits at the far end of that region. Death is the most serious injury there is, no athletic contest or concerted activity carries it as a foreseeable hazard, and the victim's agreement supplies no recognized justification. None of the three grounds applies, so the agreement leaves the killer as liable as before.

The common law reached this result long before the Code. In Washington v. Glucksberg the Supreme Court traced the history of prohibitions on assisting suicide and described as well established the principle that a homicide victim's consent is "wholly immaterial to the guilt of the person who cause[d] [his death]."² The same history records that a person who counseled another to commit suicide, and whose advice led that person to take their own life, was guilty of murder as a principal.³ It also records that the prohibitions never carved out an exception for people near death, since the law protected the lives of the hopelessly ill, and even of condemned prisoners, as fully as the lives of the healthy.⁴

Legislatures then wrote the rule into statutes. The earliest American statute expressly outlawing assisted suicide was enacted in New York in 1828, a New York code drafted between 1857 and 1865 forbade furnishing a deadly weapon or poison to a person known to intend suicide, and by the time of the Fourteenth Amendment most states made assisting suicide a crime.⁵ The Model Penal Code follows the same line by prohibiting aiding suicide. Its drafters reasoned that the interest in the sanctity of life protected by the homicide laws is threatened by anyone willing to take part in killing another, "even though the act may be accomplished with the consent, or at the request, of the suicide victim."⁶

Two reasons support the rule, and they work at different levels. The first is the public character of crime. A criminal offense is treated as a wrong against the community, at least indirectly, so the individual directly harmed has no power to license it, which is why it is no defense to murder that the victim furnished the gun and ammunition and no defense to a hazing statute that the pledges agreed.⁷ Offenses defined by the victim's non-consent, taught in the earlier sections, are the exception, because there the agreement removes an element. The second reason is the danger a consent defense would create in this one setting. The only person who could say whether an agreement to die was real and freely given is the person who died, so a killer's claim of consent would be very hard to test. The people most exposed to pressure, the seriously ill and the dependent, are also the people whose assent would excuse the act, and a defense would reward anyone who gains from a death for claiming that a request was made. Refusing to let consent excuse a killing removes that incentive at its source, and it explains why the protection of the law extends to the dying and the burdened as fully as to everyone else.

Autonomy is the value pulling the other way. Tort law gives it substantial weight, accepting the maxim that no wrong is done to one who is willing and respecting even choices that most people would regard as foolish or self-destructive.⁸ That value helps explain why consent defeats liability across the lower range of bodily injury under ground (a), where the harm is a sting or a bruise. It yields as the harm grows, because the community's interest in life is not purely private and a death cannot be corrected afterward.

Both people agreed, and in both scenes the harm is serious, so neither willingness nor seriousness separates them. The fact that moved the answer is whether the harm is a foreseeable hazard of a joint lawful activity, which the boxing injury is and the supplied drug is not. Ground (b) rests on participants who each accept a risk and impose the same risk on the others, and a request for help in dying involves no such exchange.

Whether the rule holds without exception in medically assisted dying is contested, and the answer depends on the state. Glucksberg and Vacco determined that laws making medically assisted dying illegal are permissible under the United States Constitution, which left state legislatures and courts free to apply state law as they saw fit.⁹ In Baxter v. Montana a divided Montana Supreme Court read state statutory law to give physicians a consent defense to homicide or assault charges for medically assisted dying, as long as the patient was competent, terminally ill, and truly consenting and the physician acted consistently with the medical standard of care.¹⁰ The court reasoned that consent is a defense under Montana law unless permitting the conduct or the resulting harm would be contrary to public policy, and it found no such objection to a medically appropriate lethal prescription.¹¹ In 2013 Vermont became the third state to authorize the practice by statute, and the first to do so through the ordinary legislative process rather than a ballot initiative.¹² Each departure rests on a specific authorization, either a statute or a state court's reading of state law, and each confines the defense to patients and physicians who meet stated conditions. None converts consent into a general defense to killing, so outside such an authorization the rule of this section controls. Whether the Constitution itself limits the state's power to prohibit this conduct is a different question, taken up in the later section on constitutional limits.

Exam answers go wrong when they treat a sincere request to die as bringing the case within a ground of subsection (2). Sincerity and informed choice do not change the fact that no ground reaches a killing, so the answer should name the grounds, say why each fails on the facts, and conclude that consent is no defense. That conclusion concerns the substantive law only. Consent that is no defense still affects how cases are handled, because police sometimes decline to arrest, prosecutors to charge, and judges or juries to convict, usually on the view that the harm the statute targets has not occurred, that punishment would serve no purpose, or that limited resources belong elsewhere.¹³ That discretion is informal and leaves the legal answer unchanged.