Pro-lifers are understandably disturbed about a recent court ruling in Wisconsin that those who assist in suicide can profit from doing so by inheriting from the person who commits suicide. The court decision of the state court of appeals is here.
At issue is the applicability of a Wisconsin law (854.14) that expressly bars from inheritance those who "unlawfully and intentionally kill" someone else. Linda and Megan Schunk were the wife and daughter, respectively, of Edward Schunk, who had non-Hodgkin's lymphoma. They took him home on a day trip from the hospital, drove him to a cabin, provided him with a loaded shotgun, and left him. He used the shotgun to kill himself. They were beneficiaries under his will, and other children of Edward who were not beneficiaries argued that Linda and Megan should not inherit because of the state law just mentioned. Linda and Megan petitioned for summary judgement in their favor--that is, they petitioned against the claim that there must first be a trial to determine whether they had in fact assisted Edward in his suicide. Linda and Megan denied that they had assisted Edward in committing suicide, but they argued, via their lawyers, that even if they did assist in his suicide, they could not be barred from inheriting under the law in question.
Both court levels agreed with Linda and Megan's lawyers, and summary judgement was awarded. The argument was straightforward: Assisting in someone's voluntary suicide is not intentionally killing him, said the courts, hence the language of the law does not apply, and even if Linda and Megan assisted in Edward's suicide they cannot be barred from inheriting.
But it seems to me (and lawyers among my audience members are welcome to comment on these musings) that matters are by no means so simple. For one thing, assisting in someone's suicide can take many forms. In this particular case, the most the assisters did, taking appearances at their worst, was to supply a still relatively able-bodied man with the means of self-destruction. But Jack Kevorkian's activities used to be referred to as "assisted suicide" even when they were carried out upon people who were paralysed, where "intentionally killing" seems an entirely apt phrase. There was another Wisconsin case where a woman was convicted of assisting in a suicide under a different Wisconsin law, 940.12 (about which more anon). She put a pillow over the face of an enfeebled hospice patient and sat on it until he died. Prosecutors successfully convicted her of "assisting" in a suicide on the grounds that allegedly she engaged in these actions at the patient's request, yet "intentionally killing," again, seems an entirely apt description of her actions.
The point is especially relevant given that the court in the present case engaged in a kind of naive ordinary language type of analysis, citing a dictionary definition of "kill" to support their conclusion that the family in the present case did not kill Mr. Schunk. But in these other cases, and by the same sort of reasoning from ordinary usage, the people involved most certainly did kill their victims, yet what they did was called, even under the law, "assisting suicide." The court's opinion did not address this possibility at all, which is particularly significant insofar as this judgement will be taken as a precedent in Wisconsin law for the conclusion that those who "assist" in suicide can inherit.
Even more striking, to me, is the complete absence of any reference to these twin facts: a) Assisting in suicide is a statutory crime under Wisconsin law 940.12, which says simply, "Assisting suicide. Whoever with intent that another take his or her own life assists such person to commit suicide is guilty of a Class H felony." No reference there to intentional killing. b) Common law holds that a criminal cannot profit from his crime, and indeed such a common law principle has been applied most specifically to inheritance, in the famous 19th century Riggs case.
The opinion in the case of Mr. Schunk does refer once to 940.12, as apparently those challenging the inheritance had argued that, since assisting suicide is illegal under Wisconsin law, 854.14 applies, since Linda and Megan had acted "unlawfully." But of course, the court merely returned to the notion of "killing," since both unlawful action and "killing" are required for 854.14 to apply. But this seems a very roundabout way to bring in the law against assisted suicide. Would it not have made more sense for those challenging the inheritance to avert directly to 940.12 and to argue against summary judgement on the grounds that Linda and Megan might be charged under that law and, if convicted, could not profit from their crime? It seems to me (again, subject to correction) that since summary judgement was at issue, this sort of argument would not have required that Linda and Megan actually already have been charged and/or convicted under 940.12. The argument would simply be that they should not be allowed to inherit until time was taken to see whether it would turn out that they had committed a crime in connection with Mr. Schunk's death and hence were ineligible to inherit. This would have undercut the court's reasoning by which it allowed, for the sake of the argument, that Linda and Megan had indeed assisted in the suicide but granted summary judgement nonetheless.
I'm genuinely curious: Has the common law principle about not profiting from your crime been entirely and quietly set aside when it comes to assisted suicide? One might think so from the fact that the lawyers challenging Linda and Megan's inheritance did not even try this argument. Why does this principle now require explicit application by way of statutory law? If a kidnaper tortured his victim to get information about the location of treasure and were later caught and convicted, I think we can assume that he would not be allowed to keep the treasure, even if there were no explicit statutory law barring torturers from profiting from their crimes. So what gives? Did the lawyers for the appellants just slip up, or is there something here I don't know about this principle of not profiting from your crimes and its relation to suicide?
Something certainly needs to be done in Wisconsin. One would think that the existence of an explicit statutory law making assisting a suicide a felony would be enough. Wisconsin Right to Life is pondering their best line of attack. It may be time--one way or another--for a revival of an important principle of ancient common law.
Comments (9)
This might have less to do with foment in the jurisprudence of suicide (although that is a distinct possibility) and more to do with foment in the jurisprudence of the Slayer's Rule. In Maryland, for instance, the Supreme Court has ruled that the criminally insane cannot be disinherited by operation of this rule, because they lack the specific culpability required by it. This case is, I think, more complex. Under the common law of equity, I think your argument is spot on: probate is an equitable proceeding, and the chancellor will render equity to those who themselves do equity. Engaging in shady practices that run along legal and moral boundaries clearly falls outside the realm of such equity.
But codification changes this analysis---the forearm of the chancellor is no longer the legal measuring stick, as the court finds itself compelled to follow a written statute. The statute requires the slayer to have actually killed the decedent. These people did not, in a logical sense, kill him; their actions were not the proximate cause of his death. Thus, they appear to fall outside the scope of this particular statute construed on its own terms and by itself. If the court erred, it likely did so by interpreting the statute outside the context of the rest of the state's criminal law, but perhaps not in the way you allude to.
The pertinent law would seem to be not simply Wisconsin's assisted-suicide law, but Wisconsin's general law of accessory. Many jurisdictions have accessory laws that impute to an accessory the same culpability as that of the principle. The only problem is that courts have never fully established what this means. There is certainly a legitimate argument that it means assisting suicide renders one liable for all the legal consequences of murder. But I don't know if Wisconsin's law of accessory reads this way.
The moral, I think, is to beware of codification. As an old maxim of chancery indicates, omnis innovatio plus novitate perturbat quam utilitate prodest ("all innovations disturb more by their novelty than they improve by their advancement").
Posted by Paul | October 1, 2008 9:36 AM
Thanks, Paul, I think I'm following you. The idea seems to be that once the question of when one is disinherited is codified, one can't apply common law anymore to the entire situation. But I can't help wondering if this problem arises only because the lawyers for the other children chose to make everything ride on the slayer's rule statute--854.14.
What do you think would have happened if they hadn't done that but instead had relied entirely on 940.12 + "a criminal cannot profit from his crime," which does not apply (I think) only to crimes of active killing. That is to say, "a criminal cannot profit from his crime" may apply to other crimes as well, such as in the torture example I give, so presumably it would apply to assisting in suicide where assisting in suicide is a statutory crime. Or is there a lot of ambiguity as to whether that principle does apply to crimes other than murder/homicide?
Posted by Lydia | October 1, 2008 10:01 AM
How did we come to this--aiding in the murders of our family members? Have we all been asleep?
Posted by Laura | October 1, 2008 12:42 PM
I do see some difference in the current case and the other two situations you mentioned.
In the Wisconsin case of the woman putting the pillow over the patient's face and sitting on it is a matter of active-voluntary assistance, in which someone actively caused the death of the patient, even though the patient allegedly asked for the action to be performed. Also, though Kevorkian was in and out of court multiple times, the case that finally did get him was of the same nature. Rather than merely giving the patient opportunity and means to take his own life, Kevorkian actually pushed the button himself to make the death happen.
The current case, however, is inactive; even though the patient was provided with the gun, he was left alone and took the action himself. This case seems more like the cases Kevorkian got away with, although, as I understand, his inactive technicalities did prompt an eventual change in Michigan law. I'm not familiar with the Wisconsin law that makes assisting in suicide illegal, but it may include language that implies an active variation of assistance is required for culpability. Of course, if suicide itself is a crime (I used to work for a lawyer and was under the impression it is), then supplying the means and opportunity should be accessory at least.
Posted by Jonathan Branch | October 1, 2008 8:54 PM
Jonathan,
I quote the entirety of Wisconsin's anti-assisted suicide law, 940.12 above. _That_ law does not require that the person who "assists" actually commit the killing. Here it is again:
You seem not to have understood the nature of the court's reasoning. The court _admitted_ for the sake of the argument that Linda and Megan might have assisted in Edward's suicide. They did not argue that giving him the shotgun could not count as "assisting" in his suicide. What they argued instead was that the other law, 854.14, does not apply to what they did, since _that_ law says that a person is barred from inheritance if he "unlawfully and intentionally kills" someone else. It was that law that the lawyers for the other children had tried to use to prevent summary judgement in favor of Linda and Megan.
I am arguing that perhaps that was not the best argument that could have been made and that instead the lawyers should have gone straight for the violation of 940.12 and then argued that, since a criminal cannot profit from his crime, summary judgement should be delayed until after a trial to determine if they had violated 940.12.
Now, I agree that the woman who sat on the man's face was doing direct killing and that giving someone a shotgun isn't, and that may have something to do with whether 854.12 applies. My very point, however, is that the court concludes in the PDF ruling that those who assist in suicide cannot be barred from inheriting under 854.14. They do not say, "Unless that assistance takes the form of direct killing." But "assisting" in suicide can include direct killing, so even if one holds that 854.14 applies only to direct killing, one should not conclude from this that it cannot apply to "assisting" in suicide, since that will depend on the nature of the "assistance."
Finally, I'm sorry to have to report that, according to Wesley J. Smith, suicide is no longer dealt with under criminal law in any state but only under civil law concerning mental health. What this means is that, if you are suicidal, you can be stopped from committing suicide, so in that sense suicide is not "legal." However, it is not illegal in the criminal sense. It's been taken off the books as a crime in the sense of being punishable under the criminal code. I was rather shocked to learn this too, but what it means is that the accessory argument, which I tried in the comboxes in Wesley's thread and which both Paul and you have mentioned, cannot be used in this case. In any event, the accessory argument seems to me only an attempt to get to the point of saying that their act was criminal, and the 940.12 violation (or probable violation) is a more direct route to the same conclusion. It looks to me like the principle that a criminal cannot profit from his crime is going to be indispensible either way.
Posted by Lydia | October 1, 2008 9:28 PM
He was sick for a long time....and heavily medicated the day he was signed out of the hospital, Sad that instead of compassion he was placed in a cold cabin, in the middle of January, in Wisconsin, with a loaded gun...This may be over for the courts and the lawyers but in the hearts of his family and the people who loved him it will never be over. Jayne(Eddie's Daughter)
Posted by Jayne Schunk | October 13, 2008 8:55 PM
Jayne, thanks for coming by and commenting here at W4. I am taking your identity at face value, and I hope this post shows you at a minimum that there are people out here who do not merely shrug at the abandonment your father suffered. If the main post sounds a little cold and "legalistic," that is only because I was interested in the legal issue, not because I am unmoved by the wickedness of the way he was treated and led towards suicide. One thing that Wesley Smith has emphasized and that I have learned from him is that encouraging and helping someone to commit suicide is the ultimate abandonment and is a very great cruelty indeed. It sounds obvious, but some people apparently don't find it so. May God be with you and bless you.
Posted by Lydia | October 13, 2008 9:16 PM
I wish we had more knowledge on where to go next, I hope that this does not encourage others to assist, It is like you said the ultimate abandonment.
Posted by jayneschunk | October 15, 2008 9:55 PM
Jayne, I hope you don't mind my asking, but do you have any idea of whether the lawyers on your side even considered the argument I suggest in the main post, or why they didn't use it? I realize it's a little abstract, but the main idea is that, since assisting in suicide _is_ a crime in that state, and since there is a long-standing principle that a person cannot profit from a crime, then it should not have been possible for his wife and daughter to profit from assisting in his suicide. This just seems to me simpler and more straightforward, in some ways, than trying to rely on the other law that says a person can't inherit if he has "intentionally killed" the person who dies, because that allowed the court to say that handing him the shotgun wasn't "intentionally killing" him. But I'm _not_ a lawyer at all, and it's possible that for some reason the other line of argument would not have been accepted.
Posted by Lydia | October 15, 2008 10:16 PM