Michelle Carter’s text messages – manslaughter or protected?

By: Jonathan Simms

On June 16, 2017, Michelle Carter was found guilty of manslaughter in Massachusetts. While I cannot comment on the laws of Massachusetts, the concept of manslaughter being stretched to encompass a verdict of guilty in this case has troubling implications. Carter waived her right to a trial by jury and was tried in a juvenile court because of her age.

The Court’s findings.

Carter was found to have communicated by text message with the victim for months prior to his suicide. During that time, she first coached him to get assistance from a mental hospital. She was aware that he was depressed and suicidal and she knew about his previous suicide attempt. As the conversations continued, she apparently tired of his delays and began to actively advocate that he should commit suicide. She coached him about how best to generate carbon monoxide, she consoled him that she would take care of his family and help them through mourning him after his suicide, and she encouraged him not to back down right up to his final moments.

Could this type of prosecution happen in Virginia?

In Virginia, involuntary manslaughter can take several forms but, in short, it is the unintentional killing during the commission of an unlawful act or by criminal negligence. Virginia, like many states, makes it illegal to harass another via a computer at Virginia Code § 18.2-152.7:1. The other way to get to involuntary manslaughter is to cause a death by criminal negligence. Criminal negligence requires a complete and callous disregard of human life and the probable consequences of the act.

Carter’s conduct of texting and encouraging the victim to commit suicide may be, in Virginia, considered harassment by computer. Furthermore, the weeks-long exchange of texts encouraging his suicide could be construed as a callous disregard of the life of the victim and a disregard of the probable consequences of encouraging a suicidal person to commit suicide.

What dangers does this extension pose?

The dangerous stretch that is apparent in Carter’s case is whether her texts are protected speech or are conduct within the scope of the concept of recklessness. The ACLU of Massachusetts has released a statement about Carter’s conviction stating, without hesitation, that her text messages are protected free speech.

Stretching to encompass text messages, even as horrifying as Carter’s, as conduct sufficient to rise to the level of involuntary manslaughter may lead to a dangerously slippery slope. With the media and government more frequently looking at the Facebook “likes” of criminal defendants and perpetrators of crimes, the enlargement of otherwise protected actions as being criminal actions may grow too great.

If Carter’s conviction is appealed and affirmed, what would be the next similar case? If a person simply likes a troubled person’s Facebook post about being depressed or suicidal, could that arise to reckless conduct? If Carter’s texts are considered to be conduct that exhibit a complete and callous disregard of human life and a disregard for the probable consequences of the text messages, could the act of not consoling an otherwise suicidal person be similarly prosecuted?

The appeal of Carter’s case will give another Court and other jurists an opportunity to explain the boundaries of permissible conduct and speech in a digital world.

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