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.