Could long-distance bullies in Australia face up to 20 years in jail for encouraging suicide?

In a rare decision, a young woman who encouraged another teenager to kill himself has been found guilty of manslaughter. A Massachusetts judge found that Michelle Carter’s text messages to her boyfriend, Conrad Roy III, contributed to Roy’s suicide by carbon monoxide poisoning.

The case marks a controversial development in the criminal law. The question of whether Carter’s conduct would constitute manslaughter in most states and territories in Australia boils down to whether long-distance bullies can be held responsible for another’s suicide.

The facts of the case

Roy had a history of depression and had previously attempted suicide. When he started expressing a desire to take his life, Carter originally discouraged him from doing so. However, she later started encouraging Roy. In a series of text messages, she repeatedly told him:

You just need to do it.

Tonight is the night. It’s now or never.

Carter even provided information about how long it would take him to die from carbon monoxide poisoning:

Just park your car and sit there and it will take, like, 20 minutes … It’s not a big deal.

If you do it right … it will 100% work. It’s not that hard to mess up.

At one point, as his car was filling with noxious fumes, Roy became sick and scared. He got out of the car and contacted Carter. She told him to:

Get back in.

It was this final comment that sealed Carter’s fate. The judge said that when Roy exited his car, he broke the “chain of self-causation” – and Carter’s exhortation to him to “get back in” established her responsibility for his death.

The case, although controversial, is not unprecedented. Two previous cases in the US have found defendants liable for manslaughter for encouraging someone else to commit suicide. One involved a game of Russian roulette. Another involved the defendant loading a gun, giving it to his wife, and encouraging her to use it to kill herself.

What was novel about the Carter case is that the accused was found guilty of homicide on the basis of words alone, and that she was miles away from Roy at the time of his death.

Would this be a crime in Australia?

Carter’s conduct could easily be captured by several laws in Australia. For one thing, it is already a crime to incite another person to commit suicide.

In addition, laws introduced in Victoria after Brodie Panlock took her life in 2006 make it a crime to send an email or text message to another person with the intention of causing them to harm themselves.

But those crimes can only be punished with five or ten years in prison. The maximum penalty for manslaughter, on the other hand, is 20 years.

From the viewpoint of the criminal law, the most difficult task for the prosecution would be to establish causation.

Can Carter be said to have caused Roy’s death, or would his act of suicide be considered an independent act, an exercise of free will, for which he was solely responsible? The trial judge in Carter’s case found that her act of encouraging Roy to “get back in” his car started the clock on her responsibility for what happened afterwards.

Whether a judge in Australia would reach a similar conclusion is yet to be seen, but here’s what we do know.

To prove that a person’s act, such as sending an SMS or making comments during a phone call, caused a particular result (such as someone else committing suicide) the act must have “substantively contributed” to the suicide, or suicide must have been a “reasonably foreseeable” consequence. It is certainly arguable that Carter’s repeated messages substantively contributed to Roy’s death and that his death was a reasonably foreseeable consequence of her encouragement.

In South Australia, Carter’s conduct might have constituted murder, an even more severe charge than Carter faced in the US, as a person in that state who uses “undue influence” to induce another person to commit suicide may be liable for murder.

Can texting really make you liable for manslaughter or murder?

The fact that Carter was miles away when Roy got back into the car and killed himself may be expected to cause problems in making her responsible for his death. Many people argue that this factor alone means she should not have been found criminally liable.

But given these two young people primarily conducted their close relationship through text messages and phone calls, and that Carter was on the phone telling Roy to get back into his car immediately before he died, is the fact that she was not physically present when Roy killed himself really significant?

It might be that recognising culpability for messages conveyed by telephone, SMS and online is simply bringing the law into the 21st century.

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