A few months ago I did a post about whether someone could be held criminally liable for causing another person to commit suicide.  “Suicide” (May 29, 2007).  In that post I primarily focused on whether it would be possible to hold a person criminally liable if the prosecution could show that this was their purpose, i.e., that they WANTED the other person to kill themselves.  That is, of course, a logical possibility.  As the drafters of the Model Penal Code, a template for criminal statutes, said of this scenario, “it’s a pretty clever way to commit murder.”

Here I want to talk about a different, but related issue:  Whether someone can be held criminally liable for another’s suicide if it was not their purpose to cause the victim to kill herself, but their conduct in fact contributed to the victim’s doing so.  I’m prompted to write this post by what I’ve read recently of the Megan Meier case, the tragic story of the 13-year-old Missouri girl who committed suicide after being the victim of a MySpace hoax.

Here’s a summary of the facts of that case as they appeared in the St. Charles Journal:  Thirteen-year-old Megan Meier lived with her parents in a Missouri suburb.  She had attention deficit disorder, battled depression and had “talked about suicide” when she was in the third grade.  She had been heavy but was losing weight and was about to get her braces off.  She had just started a new school, and was on their volleyball team.  She had also recently, according to her mother, ended an off-again, on-again friendship with a girl who lived down the street. 

Megan had a MySpace page, with the permission of her parents.  She was contacted by a sixteen-year old boy named Josh, who said he wanted to add her as a friend. Megan’s mother let her add him, and for six weeks Megan corresponded with Josh.  Josh seems to have told her she was pretty and clearly gave her the impression that he liked her . . . at last, until one day when he sent her an email telling her he didn’t know if he wanted to be her friend because he’d heard she wasn’t “very nice” to her friends.  He seems to have followed that up with other, not-very-nice emails.  And then, according to the news story I cited above, Megan began to get messages from others, saying she was fat and a ***.  After this went on for a bit, Megan hanged herself in her closet and died the next day.  Her father went on her MySpace account and saw what he thought was the final message from Josh – a really nasty message (according to her father) that ended with the writer telling Megan that the “world would be a better place without her.”

Megan’s parents tried to email Josh after she died, but his MySpace account had been deleted.  Six weeks later, a neighbor met with them and told them there was no Josh, that he and his MySpace page were created by adults, the parents of the girl with whom Megan had ended her friendship.  According to the police report in the case, which is quoted in the story cited above, this girl’s mother and a “temporary employee” created the MySpace page so the mother could “find out” what Megan was saying about her daughter.  It gets really murky from there, as to what was going on in the Megan-Josh correspondence, but it seems that others – including other children who knew Megan – had passwords to the Josh account and posted messages there.  When the police interviewed this woman, she said she believed the Josh incident contributed to Megan’s suicide, but did not feel all that guilty because she found out Megan had tried to commit suicide before.  (Actually, she seems to have talked about it in the third grade, as I noted above).

Megan’s parents and others in the community seem to have wanted the police to charge the adults who created and operated the Josh MySpace page with some type of crime for their role in Megan’s suicide.  There are several reasons why they can’t be charged even if, as seems reasonable, their conduct was a factor resulting in Megan’s decision to take her own life.

One factor is that they clearly never intended for that to happen.  I can’t begin to figure out what these adults thought they were doing (never mind the children involved), but whatever it was, they didn’t set out to kill Megan.  They were, at most, reckless or negligent in embarking on a course of conduct that resulted in tragedy.

Every state makes it a crime to cause another person’s death recklessly or negligently.  The difference between the two types of homicide goes to the foreseeability of the result.

• You act recklessly if you consciously disregard and substantial and unjustifiable risk that the result (death) will result from your conduct.  So to be liable for recklessly causing Megan’s death, these adults would have had to have been aware, at some level, that what they were doing could cause her to kill herself.  If they were actually aware that this was a possibility and persisted in sending emails that could cause this result, then they could be held liable for reckless homicide.
• You act negligently if a reasonable person (an objective standard) would have realized that your conduct created a risk that Megan could commit suicide.  Here, the law looks not at what the allegedly culpable person actually knew, but at what a reasonable person, the average American adult, would have realized in this situation.  So if the law finds that a reasonable person would have realized there was a risk that Megan would kill herself if that person conducted the Josh hoax, they could be held liable for negligent homicide.
  

I sympathize with Megan’s parents and I cannot comprehend why adults had nothing better to do than to play such a cruel trick on a child, but however stupid and cruel their conduct was, those responsible for the Josh hoax cannot be held liable under either of these standards.  To explain why, I’m going to use a very recent Minnesota case:  Jasperson v. Anoka-Hennepin Independent School District (Minnesota Court of Appeals, Case # A06-1904, decided October 30, 2007).

It’s a very sad case.  The opinion says, “J.S. was a 13-year-old eighth-grade student . . . . who lived with his mother and father and his older brother.”  He’d been having trouble in school:  He had received failing grades in his classes, but was bringing his grades up.  He was being bullied by two boys who attended a different school (a school for students with “behavioral problems”).  According to the opinion, they grabbed his bike, told J.S. they knew where he lived and which room in the house was his and threatened to kill him.  His mother met with Assistant Principal Ploeger at J.S.’ school and told him all this.  The AP said he’d see that the boys were charged with trespassing on school property, but told her she’d have to talk to the school liaison police officer Wise about protecting J.S. from the boys.  The AP advised J.S. to leave school by a different route or leave with friends.  Wise met with J.S. and his mother, determined that no crime had been committed and suggested he walk with friends and avoid the boys.

A week or two later, J.S. got F’s in his mid-quarter grades for all his classes except for Physical Education.  According to one student, J.S.’ science teacher Lande told him he was the “dumbest student” the teacher had ever had, and that he was “going nowhere.”  Lande later said he had been angry and may have spoken louder than he intended.  The observing student said J.S. cried afterward.  The family discussed J.S.’ grades that night, and he told them it was his teachers’ fault.  He also said he couldn’t concentrate because the two boys were handing around his school.  J.S.’ mother told him she’d talk to the school about getting him a new science teacher and about dealing with the two boys.

The next day, J.S.’ father, mother and brother left for work and school before he did, which wasn’t unusual.  He often rode to school with friends.  When J.S.’ brother came home that afternoon, he found J.S. dead on the living room floor, with a suicide note beside him.  J.S. had shot himself.  In the note he said his life was going nowhere so he didn’t need to live, left his love for his family and his dog and said he’d miss them.

The parents brought a civil suit against the school, claiming the school’s negligence caused J.S.’ suicide.  The trial court held that J.S. suicide was not foreseeable, so the parents didn’t have a claim.  The Minnesota Court of Appeals agreed:

[T[he record does not support assertions that any school personnel knew or had reason to know that J.S. continued to have problems with the two boys [or[ that J.S.'s failing grades were caused by his terror of the two boys. . . . Mere speculation or conjecture is not sufficient. . . . The district court did not err in concluding that given the evidence, Ploeger, Wise and Lande could not have foreseen any harm to J.S.

Jasperson v. Anoka-Hennepin Independent School District, supra.

Both courts also found that the evidence did not establish that Ploeger’s and Lande’s conduct caused J.S. to commit suicide:

Appellant argues that the school district failed to protect J.S. from a known danger; was in a position to end J.S.'s “terror” and should have anticipated that its failure would likely result in J.S.'s harm; and was in a far superior position to end the threats from the two boys than J.S. or his parents. But the record does not show that anyone at the school had any knowledge that J.S. was subject to harm from the two. The record does not suggest any change in J.S.'s behavior indicating that he was experiencing terror, and none of J.S.'s friends alerted school personnel that J .S. was in fear. There is no evidence that J.S.'s suicide was foreseeable and therefore could have been prevented.

Appellant relies on the fact that J.S.'s midterm grades and a suicide note containing the same words Lande allegedly used were found at his side as evidence that Lande's remarks were a substantial factor in bringing about J.S.'s suicide. But “a mere possibility of causation is not enough.” The district court did not err in concluding that, as a matter of law, the required causal connection between the conduct of school personnel and this tragic suicide is not established by evidence in the record.

Jasperson v. Anoka-Hennepin Independent School District, supra.