Ultimate Spider-Man #117

The question behind today’s post comes from Levi.  Trigger warning: this post deals extensively and frankly with the subject of suicide.

Levi asks:

I recall a scene from Ultimate Spider-Man #117 where Norman Osborn, after killing his son Harry in a fit of rage, asks Carol Danvers, then director of S.H.I.E.L.D. to kill him, to which she obliges by shooting him in the head. In later issues, Osborn is shown to be alive. Is Danvers guilty of attempted murder, or does this count as assisted suicide? The incident took place in New York.

This is an interesting one.  Non-physician assisted suicide is illegal everywhere in the United States, and New York is no exception:

A person is guilty of promoting a suicide attempt when he intentionally causes or aids another person to attempt suicide.
Promoting a suicide attempt is a class E felony.

On the murder side of things this looks like attempted second degree murder in New York (first degree is reserved for intentional killings of police officers and the like):

A person is guilty of murder in the second degree when:
1. With intent to cause the death of another person, he causes the death of such person or of a third person

Murder in the second degree is a class A-I felony.

At first glance it looks like Danvers could be charged with both attempted murder and promoting suicide, but it turns out that New York has a statutory exception for this kind of scenario:

A person who engages in conduct constituting both the offense of promoting a suicide attempt and the offense of attempt to commit murder may not be convicted of attempt to commit murder unless he causes or aids the suicide attempt by the use of duress or deception.

The second degree murder statute has a similar exception:

it is an affirmative defense that: … (b) The defendant’s conduct consisted of causing or aiding, without the use of duress or deception, another person to commit suicide.

There was certainly no duress or deception here: Osborn plainly requested that Danvers kill him then and there, after he had ceased to be an imminent threat to anyone.

Now it might sound like Osborn is only guilty of promoting a suicide attempt.  However, there is an exception to the exception:

Nothing contained in this paragraph shall constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the second degree or any other crime

In some sense this exception is implicit in the fact that murder and manslaughter are distinct offenses, and the first exceptions are pretty specific  about referring only to murder (as opposed to any homicide offense).  Let’s take a look at second degree manslaughter:

 A person is guilty of manslaughter in the second degree when: …
3. He intentionally causes or aids another person to commit suicide.
Manslaughter in the second degree is a class C felony.

There’s yet another wrinkle here: Danvers didn’t kill Osborn, so she would have to be charged with attempted second degree manslaughter.  Normally attempted manslaughter is a nonexistent crime, since attempt requires intent whereas manslaughter is ordinarily a crime of recklessness.  People v. Martinez, 81 N.Y.2d 810, 811-12 (1993).  But the suicide version of second degree manslaughter does require intent.  I couldn’t find any cases on the subject, but it appears to me that if someone attempts to cause another person’s suicide then that person could be charged with attempted second degree manslaughter (in New York, anyway).

Assuming this is the case, could Danvers be charged with both crimes (attempted manslaughter and promoting a suicide attempt)?  The final complication is that one offense may be a lesser included offense of the other, meaning that Danvers could be charged with one or the other but not both.  Let’s look at them again:

A person is guilty of promoting a suicide attempt when he intentionally causes or aids another person to attempt suicide.

and (adding the elements of attempt):

A person is guilty of [attempted second degree manslaughter] when, with intent to commit [second degree manslaughter], he engages in conduct which tends to effect [intentionally causing or aiding another person to commit suicide].

Does one of these offenses completely overlap with the other?  Attempted second degree manslaughter is the slightly broader offense, as I read it, requiring intentionally engaging in conduct which tends to effect intentionally causing or aiding another person to commit suicide (but not, you’ll note, actually causing or aiding the suicide or even necessarily causing or aiding an attempt; it appears to be sufficient to intentionally try to do so).

Promoting a suicide attempt requires “intentionally causing or aiding another person to attempt suicide.”  In other words, the suicide must actually be attempted.

It seems, then, that if one promotes a suicide attempt, then one has necessarily also committed attempted second degree manslaughter, and so one could be charged with one or the other but not both.  This all assumes that attempted second degree manslaughter (of the suicide-promotion type) is a recognizable offense under New York law.  That is a novel theory, so it’s hard to say for sure.

What is clear, though, is that Danvers could not be charged with attempted murder, nor with completed manslaughter.  She could definitely be charged with promoting a suicide attempt, which is a class E felony.  If she could instead be charged with attempted second degree manslaughter, then that would be a class D felony (attempt bumps the class C felony of second degree manslaughter down a notch).  So there would be a good reason for a prosecutor to put forward the novel theory that intentionally causing or aiding an attempted suicide should be chargeable as attempted second degree manslaughter.

11 responses to “Ultimate Spider-Man #117

  1. There is an additional issue here: at the time of the attempt, Carol Danvers is the Director of SHIELD, and she is on duty. And SHIELD appears to have very broad powers when dealing with homicidal supervillains, particularly in the Ultimate universe.

    It is possible that she could plausibly claim that she was acting _as a SHIELD agent_ in assisting the suicide attempt – in which case she might be immune from individual prosecution.

    • Soldiers, police officers and people working for intelligence agencies who happen to be armed can’t just decide to shoot someone, even if in the course of their work they would legally be able to under other circumstances.

      • Sorry, didn’t see your second comment. However I’m pretty sure it would be outright unconstitutional to say that someone is empowered to kill under any circumstances without any possibility of being arrested for crimes committed. No matter what you might say about drone strikes (and I am not getting into that debate here), even those have more legal justifications than saying it is legal just because.

  2. (Obviously this wouldn’t fly for a police officer. But the limits of SHIELD’s powers are unclear, and in the Ultimate universe appear to be extremely broad.)

  3. I don’t know the story, but what if Danvers claims that she deliberately shot to not kill, but temporarily put Osborn down? Given we are talking superhero universe here, no reason she couldn’t have that good aiming and shooting.

    • True, that is.

      She could additionally argue “prevention of flight of known dangerous felon, regardless of what he claimed he was asking for”.

    • If he was unarmed and actively requesting that someone shoot him I’m pretty sure that defense isn’t going to fly.

      • James Pollock

        There’s an argument that Osborn is ALWAYS armed, because of the effects of the serum that made him the Goblin (assuming, of course, that events in that universe are similar to Osborn’s original, well, origin. Yes, in our world, body parts can’t be weapons, but that rule might be different where superhuman bodies were prevalrnt.)

  4. I think the circumstances suggest she was going to shoot him anyway.

    And I doubt there could be any real argument against that. He is a violent unstable superhuman sociopath who was in the process of beating his son to death and trying to murder a teenager along with anyone else who got in his way. He had, if memory serves, just escaped a maximum security prison and slaughtered an unknown number of law enforcement agents and probably several innocent people. The fact that Danvers failed to kill him only demonstrates how unlikely it was that they could have reasonably been expected to take him alive to begin with.

  5. “Non-physician assisted suicide is illegal everywhere in the United States”

    Not counting “suicide by cop”.

    • Suicide by Cop is not a “thing” in legal terms. It’s an informal practice whereby individuals provoke violent retaliation from law enforcement. That their intent is to be killed is immaterial, as the police officers who put him/her down wouldn’t be seen as assisting a suicide. They’d be seen as using lethal force to stop a dangerous individual.

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