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Thursday, February 12, 2009

Should criminal omissions liability attach in the face of victim's apparent consent?

My co-authors and I are just putting the finishing touches on Privilege or Punish, our book about how the criminal justice system uses a defendant's family status to both create and exempt defendants from liability or enhanced punishment. Thus, it's too bad that we are too late in the process to draw upon this fascinating story brought to my attention by Rachel Barnhill, one of my students in crim law this semester. It's the story of an elderly man who claims to have been following his wife's wishes not to call for medical assistance. Should the status-based duty to perform costless rescues apply when the rescuee apparently doesn't want the help? It looks like the hubby will be charged with a criminally negligent manslaughter charge. My guess is that the jury will reject the prosecution if it goes that far. But it's an interesting question about the relationship between consent of victim and the obligation to intervene that typically attaches in spousal or parent-child relations. One concern in this context is that the defendant will justify his omission by claiming that the victim consented to or insisted on his inaction, and that becomes a tricky space to navigate from an evidentiary perspective. Perhaps that defense should be rejected then in cases where there is no independent evidence or third party who can verify the consent's freely given nature.

What say y'all? The story after the jump.

Sheriff's officers have arrested an 82-year-old man after his wife died on the floor of their home, apparently about 10 weeks after she fell out of bed and was unable to get up.
John Klein was arrested for investigation of second-degree manslaughter after he called 911 on Monday to report that his 73-year-old wife Pia had no pulse.
Klein told Spokane County sheriff's Detective Jim Dresback that his wife of 52 years fell out of bed around last Thanksgiving, Dresback said in court papers filed Tuesday.
According to that account, Klein had been working outside, came in and found his wife lying next to the bed in the doorway of the master bathroom. He said she cried out in pain and told him to leave her alone when he tried to help her up.
After that, Klein said he left her lying on her left side on the floor for the next 10 weeks, bringing her food and water, giving her medications and cleaning her but did not summon any medical aid. The woman had no significant medical problems, Klein told detectives. It was not clear what medications he gave her.
Klein's bond was set at $200,000 at his initial court appearance Tuesday. Klein told the judge, in his words, "I don't consider it to be my fault. She did not want help." It was not immediately known if he was represented by a lawyer.
Klein told Dresback the couple have an adult daughter who lives in North Carolina and normally talks with them by phone every other weekend. Asked if the daughter spoke to her mother after the fall, Klein said his wife had told him to tell the daughter she was sick.
When Klein was asked whether his wife had asked him to summon help for her, "he looked down for about five or six seconds, then said, 'No,"' the detective wrote. In the affidavit, the detective alleged Klein was criminally negligent in failing to summon medical help.
Klein reportedly told the detective he thought his wife would eventually get up and start walking on her own, adding he told her to exercise while she was lying on the floor.
The woman apparently had been lying naked on the stained, carpeted floor and had several large ulcers on her left hip and left leg, "consistent with her having been lying on her left side for an extended period of time," the affidavit said. A soiled pillow lay in the bathroom doorway.

Posted by Administrators on February 12, 2009 at 12:12 AM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel | Permalink


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Well, OK, if the legislature wants to create new elements or evidentiary requirements it can do so. But it can't do so after the fact to render conduct that was non-criminal at the time, retroactively, criminal.

Posted by: Jack | Feb 13, 2009 1:51:15 PM

I do not believe that, as you mentioned in your post, the defense of the dying person's wish to not be given medical assistance should be valid unless there is sufficient evidence to show that this wish was indeed given. There is a similar scenario in Property that we studied last semester in gifts causa mortis. Courts will usually not recognize a gift causa mortis unless sufficient delivery standards are met, which include the giving of the property to the donee, or at least something written if the property is too big to hand over. This is to demonstrate that the donor, or the dying person in this case, did indeed intend what the other is claiming. I do not believe that the man should be able to use this defense without aforementioned evidence because he has a duty to act as they are husband and wife, which is a special relationship obligated under the duty to act principle.

Posted by: C.J. Rivenbark | Feb 13, 2009 1:24:54 PM

This is a fascinating problem. The theory of the duty to act, at least with respect to otherwise competent beneficiaries, is that the beneficiary of the duty is unable to protect him or herself. But if the assistance is refused, there is no duty (nor should there be) for the duty-holder to force the beneficiary to accept the help. So if the claim is true, liability should not attach. I also cannot agree that the lack of independent evidence should preclude the defense--many valid defenses have this character, although of course it may make it less plausible for a jury.

Posted by: Jack | Feb 12, 2009 12:32:23 PM

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