Michelle Carter is currently on trial for the 2014 suicide of her boyfriend, Conrad Roy.  The then-17 year old Carter texted and called then-18 year old Roy, urging him to continue with his suicide plan after he expressed fear.  “Yes, no more thinking,” she wrote, “You just need to do it.”  She then listened on the phone while he cried in pain and died from the carbon monoxide pumped into his truck.  Carter’s defense attorney is now presenting evidence that Carter was herself troubled and taking Celexa, an anti-depressant that affects decision-making and empathy.

Separately, the hit reality-TV show Bachelor in Paradise has stopped production in Mexico amid allegations of sexual misconduct.  After a day of drinking, Corinne Olympios jumped into the lap of DeMario Jackson, and some amount of sexual activity ensued in a pool before producers intervened.  Olympios now blames the show for not stopping non-consensual sexual activity.  DeMario claims Olympios was the fully consenting instigator, inviting him into the pool and initiating much of the sexual activity.  Olympios does not fault DeMario, who was too drunk to perform actual intercourse.

These two current events, while factually different, raise a similar question – when can someone be held responsible for the “uncoerced” actions of another person?  This post will explore some of the legal issues in both cases and discuss the tension between incentivizing personal responsibility and preventing exploitation.

Michelle Carter’s case is rare.  She is accused of homicide based solely on speech.  The Supreme Judicial Court of Massachusetts permitted this case to go to trial because there was sufficient evidence that Carter (1) engaged in wanton or reckless conduct, that (2) caused Roy’s death.  These map on to the elements of involuntary manslaughter.  The reckless conduct was speech: text messages pressuring a vulnerable, mentally ill romantic partner to take his own life.  However, that speech is not protected by the First Amendment.

The  Massachusetts Supreme Court held that Carter’s speech can subject her to criminal punishment because the state “has a compelling interest in deterring speech that has a direct, causal link to a specific victim’s suicide.”  The court’s rationale for declaring this speech criminally punishable — that the criminal law here passes strict scrutiny — may render unprotected a wide swath of speech that is causally related to suicide.  Perhaps a better basis for removing the protection of the First Amendment is that Carter’s speech was intended to and likely to produce imminent death.  This speech is not like the abstract, but offensive hate speech that is fully protected by the First Amendment, but was a knowing, personal, and direct effort to persuade one’s partner to take his life immediately.  As such, the speech is so closely and imminently tied to action that it loses its protection as speech.  Carter likely knew this. She asked Roy to remove the texts from his phone and expressed concern to a friend that she could go to jail.

Carter’s fate will, in part, turn on whether she is the “cause” of Roy’s death.  Her defense attorney is presenting evidence that Roy, who tried to commit suicide several years prior, would have killed himself anyway.  Carter initially tried to talk Roy out of killing himself, according to her defense attorney.  Another key part of her defense is that she is also “troubled.”  If Roy was incapable of deciding his own fate, because he was too mentally ill, perhaps Carter should also not be deemed responsible for her actions.

Preserving robust notions of personal responsibility is critical both for incentivizing good behavior and allowing agency and choice.  However, because Roy was so mentally ill that he was on the brink of killing himself, and had attempted suicide before, we lose very little in terms of promoting personal responsibility by inculpating Carter for what appears to be a heartless, and tragic, exploitation of her boyfriend.  The judge (this is a bench trial) will decide whether Carter was also too mentally ill to classify her behavior as criminally reckless (acting with disregard for the consequences of risky behavior), but her culpable state of mind has some support in the facts.  Perhaps Massachusetts should not have charged her with manslaughter, given that she was not in the physical location of the murder nor did she provide the tools for the murder.  I sympathize with civil rights lawyers who argue that this use of a homicide statute is a stretch.  Regardless, Carter’s behavior appears criminally punishable, if Massachusetts had the appropriate criminal statute, and her behavior does technically meet the elements of involuntary manslaughter.

And what about the alleged sexual assault that occurred on the set of Bachelor in Paradise?  Olympios does not remember her sexual encounter with DeMario, but witnesses said she appeared “fully engaged.”  The sexual encounter took place in Mexico, leading to jurisdictional puzzles.  However, generally speaking a defendant is guilty of sexual assault if he is aware that his partner is too drunk to consent to sexual activity.  Different states have different definitions of intoxication.

To allow for personal responsibility and personal choice, “too drunk” should be a pretty high bar.  Lowering the bar on what constitutes incapacity to consent means that drunk people will not be empowered ever to consent to sexual activity, because their partners will be vulnerable to criminal rape charges.  However, if someone is blackout drunk, as Olympios claims she was, she was perhaps too intoxicated to give valid consent.  Olympios does not blame DeMario, likely because he was too drunk to form the requisite criminal intent.  In Massachusetts, for example, a defendant may present evidence that his intoxication prevented him from discerning that his victim was too drunk to voluntarily consent.

Olympios does blame Bachelor in Paradise, however, for not stopping the activity.  This presents a challenge for reality television shows.  If the producers knew that Olympios was too drunk to form consent, they should have stopped the activity, even if the sexual encounter was not technically a crime because DeMario was too drunk to form criminal intent.  However, Olympios appeared to many to be a willing, happy partner, behaving as many people do on the show.

The problem with shows like Bachelor in Paradise is that their business model involves liquoring up contestants so that their already demonstrated bad judgment (they are, after all, on a reality show to compete for people’s affection) is further impaired, and then putting them in compromising situations.  Contestants sign up, with the expectation of the benefits of fame and perhaps fortune, for this sort of treatment.  Unless we set a high bar on how much producers needed to know before they are required to intervene in a sexual encounter, no one will be able to choose to be featured on Bachelor in Paradise.  These shows will fear legal liability too much.  That would be problematic not only for personal choice and autonomy of budding reality TV stars, but for audiences of shows like Bachelor in Paradise.