Should we criminalise the act of driving someone to suicide?

There are many obscure laws around the world dealing with life and death.

In California, a deaf kid won money from their parents because they claimed that, knowing the defects they’d be born with, the parents should have aborted them. Heavy, sure, but there are even other jurisdictions around the world that allow for these “wrongful life” claims.

It shouldn’t, therefore, be such a leap to consider that I should go to jail for telling you to off yourself and you actually go do it, right? Especially now with mental health being all the rage, surely a case can be made for pushing somebody to the point of removing themselves from global oxygen consumption to be considered, at least, manslaughter.

Surely?

It’s pretty complex. Typical suicide itself is totally legal and obviously so.

I mean, what would we do otherwise? Put a corpse on trial?

We know from the macabre Stransham-Ford case that assisted suicide has a path to legality, but that’s a pretty intense path and not particularly related to today’s question. What are the issues with making compelling another to take their own life, illegal?

Weirdly, from a textual legal perspective, there are very few barriers. Looking at the five elements of a crime (action, unlawfulness, causation, culpability and fault), everything is basically in place, and all one would need is to create a law to specifically state its unlawfulness. It’s been done in Queensland, Australia and a couple of the United States, where prosecutions have gone all the way.

What’s preventing it from being something we pursue in South Africa?

Also read: Girl allegedly bullied into suicide by teacher

Well firstly, there will always be a question on the cause, i.e. how are we to know that it was my word that caused the person to take head to the heavens and not the other bullies’?

Typically one would apply what is called the doctrine of common purpose, which states that where if 10 people fired at me and I died, it doesn’t matter which bullet killed me, because they all had the same purpose. In terms of suicide though, it’s different because should a high school bully be liable for a 60-year-old’s death 45 years down the line?

But then we get to the primary problem. How does one cross-examine evidence?

If the suicide was successful, there’s no way that the accused will have an opportunity to defend themselves properly, because the primary witness is not only always going to be the victim, but also always going to be pretty absent from proceedings. So without being able to cross-examine the victim, it’s going to be pretty difficult, probably impossible, to make a case “beyond reasonable doubt.”

South African suicides are a huge problem in our society and something must be done to curb them, but prosecuting bullies has its limitations in the same way that applying the death penalty to bring down crime does. Not only are there serious philosophical difficulties with the idea, but the questions of whether it will have any real effect are impossible to answer with anything resembling a yes.

Should we be doing something about suicide in South Africa? Absolutely! Is that something to treat a verbal or emotional abuser the same as a murderer? I’m afraid, I’m going to need a lot more convincing before I get on board with that idea.

Unfortunately for the proponents of the idea, the ones best equipped to do the convincing have, by definition, taken away their own abilities to represent their position.

Is it one of those few awkward matters in law where the legal system is just not suited to solving this problem? Why? Because there are some things that society needs to resolve without turning to the courts.