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.