May 18, 2008

posted by Daniel J. Solove

The problem is not the "if it's bad it must be a crime" mentality.

What Lori Drew did should be a crime. The most natural crimes on the books--the various forms of homicide--don't quite fit. One could imagine expanding the definition of one of the homicide crimes to include intentionally causing severe emotional distress that causes the victim to commit suicide. That approach is reasonably tailored to deal with what was so morally reprehensible about Drew's conduct.

Both the CFAA indictment and the Missouri bill are terrible responses because they're overbroad. They aren't good fits with the wrong they seek to prevent. The CFAA route is terrible because it uses something (perhaps) marginally wrong that Drew did that's only tangentially connected with her real evil, and then stretches an already ridiculously expansive law to cover a huge new class of cases in order to reach her. The Missouri bill similarly sweeps in not just what Drew did but a whole raft of other actions that might be a little bit blameworthy but are well beneath the threshold that ought to actionable at law, let alone criminal.

The failure here is a want of legal acumen, not an inherently misplaced impulse.

James,

What precisely would be the crime? In many cases, it is very hard to prove a direct connection between particular events and suicide. From the accounts I read, Megan Meier befriended the fake "boyfriend" on the Internet, and it is unclear how close or intimate they were as friends. Their relationship lasted only for a short duration, so it seems like a bit of a stretch to imagine that breaking up with somebody in a nasty way (for what basically amounts to a pen pal relationship) would by itself precipitate a suicide. From what I've read, Megan's suicide was precipitated by a number of factors, only one of which were the nasty comments that the hoax "friend" made.

From the accounts I've read, it also seems that while the idea of creating the fake profile was Lori Drew's, it is unclear whether it was Drew's ideas or words that constituted the mean things said. The facts indicate other people were involved -- I think Drew's teenager daughter and some other people. It is interesting that Drew has been rather quiet about her daughter's role, and none of the others involved were indicted. Could it be that her daughter made the nasty comments and Drew is keeping quiet about that to protect her daughter?

The problem here is that this was a freak occurrence. The plan to create a fake profile was incredibly dumb and insensitive. Unfortunately, the person who was tricked happened to be suffering from some kind of depression or other issue. And unfortunately, things got out of hand with the stupid plan, and the mean things said combined with other factors to lead to a tragic suicide. It's certainly a tragedy. Drew's behavior is certainly irresponsible. But saying mean and nasty things is generally not a crime -- and in most cases it shouldn't be. The fact that these nasty words led to a suicide might be more the product of just an unfortunate confluence of events -- the perfect storm. Of course, if Drew knew that Megan was in a vulnerable mental state and she wanted to hurt Megan, that's a different story. It certainly doesn't appear that way from the facts I've read. Sometimes people do bad things and they lead to terrible consequences. But that doesn't mean that people should be held criminally responsible.

Daniel, I spelled how the crime could be defined: intentionally causing severe emotional distress that causes the victim to commit suicide. In MPC terms, let's say that the defendant's conduct must be purposeful towards the emotional distress and negligent towards the suicide. A causal link between the distress and the suicide would explicitly be an element of the crime that the jury would be required to find. (Of course, there are other possibilities; I have no particular attachment to this definition.)

The proposed Missouri statute and the CFAA indictment are inappropriate responses on their face. It's clear that they could lead to convictions of people whose wrongs are minimal and who ought never be dragged into a court of law. But the problem is overbreadth, not criminalization per se. Or do you disagree that my suggested language would lead to the conviction of only seriously blameworthy defendants?

All of the things that you're describing are problems of proof. You're talking about various interpretations of things we've read about the incident. It's unclear whether Drew herself said the mean things, helped her daughter to, or was uninvolved beyond creating the profile. That's exactly the sort of issue that typically is and ought to be aired at a trial. Or do you disagree that there's sufficient evidence to indict Lori Drew of my described offense?

re: "It's unclear whether Drew herself said the mean things..."

On Good Morning America last month, Lori Drew's employee and family friend, the 18-year old Ashley Grills admitted that she wrote the last message.

James raises an interesting point, though I'm not an expert on laws regarding suggestive suicide. The second clause above, in fact, almost rules it out: "such person's response to the act is one of a person of average sensibilities considering the person's age."

It's hard to see how a suicide is an act of a person of average sensibilities. 32% of teens report being cyberbullied (see ISTTF presentations), while the suicide rate for the 10-14 age group is 1.3 out of 100,000.

James,

If the crime is how you define it, then it is just a subset of negligent homicide -- negligently causing the death of another. Your crime would be redundant, as it wouldn't add anything to negligent homicide. Indeed, it would be a narrower crime, a subset of negligent homicide.

I don't quarrel with the criminalization of negligent homicide.

Is there sufficient evidence to indict Lori Drew for negligent homicide? I'm very skeptical. Many cases involving homicide charges related to influencing a person to commit suicide have failed on causation grounds. It is very hard to prove causation for homicide when a suicide is involved.

Good point -- but this just suggests that the place to focus is on the causation analysis. (There are plenty of canonical crim law cases on the causation-of -suicide issue; some charges have failed, but others have succeeded.) I wouldn't say that it's hard to prove causation so much as that the courts sometimes make exceptions to the normal causation analysis when suicide is involved. How about a targeted legislative focus on the causation issue for self-harming minors subjected to deliberate emotional distress of this sort?

Just last week during the course of Dan's discussion (and totally unwarranted criticism of Justice Scalia, see my somewhat tardy retort there) about theories of interpretation, Dan suggested that Judges should construe laws based on their vision of "the good society." Why on earth then does Dan not think that Judges should construe existing laws against the kind of acts that this despicable witch Lori Drew pulled? Does "the good society" sanction just letting her get away with it? One can, I suppose, go either way on the issue, but what this does show is that hairbrained schemes like allowing judges to construe laws based on their own moral codes leads to bizarre inconsistencies and political - if hard to explain under any political philosophy - outcomes.

[I'm taking the liberty of cross-posting my comment at Megan McArdle's blog on the same subject, which may contain some useful information:]

The following Missouri state statutes might be relevant here:

-- "Recklessly causing the death of another person" constitutes involuntary manslaughter under Missouri law.

-- "Knowingly inflicting cruel and inhuman punishment upon a child less than seventeen years old" constitutes the crime of child abuse.

-- "To engage in a course of conduct directed at a specific person that serves no legitimate purpose, that would cause a reasonable person to suffer substantial emotional distress, and that actually causes substantial emotional distress to that person" constitutes harassment, and to harass someone intentionally constitutes stalking.

Your comment saying that it is 'hard to prove causation for homicide when a suicide is involved' made me think of an Indian law which deals with dowry deaths. It says that any unnatural death within seven years of a woman's marriage is a dowry death if it is shown that 'soon before her death she was subjected to cruelty or harassment by her husband or any relative of his for, or in connection with, any demand for dowry'. It often comes into play when women kill themselves because of harassment.

I wonder if it would be possible to structure a law along similar lines which in effect says: If you do .... to a person and the person commits suicide, you are automatically held to be guilty of that person's death whether or not there is proof that your actions directly drove the person to commit suicide.

...although even as I type this out, it seems rather draconian.