Virtual presence

Virtual presence

How it interrelates with offences relating to murder in Kenya

By Cindy Rennys Miyoma

Technology makes instant messaging possible. Because of this, a new area needed to be regulated by law and thus we had the laws relating to cyberspace and cybercrimes. However, there is an area that remains, in part, a ‘grey’ area. This is the question relating to virtual presence. When can words kill? What happens when our words or actions via the Internet cause or play a part in the death of another? 

In the summer of 2017, Michelle Carter was found guilty of involuntary manslaughter in the Bristol County Juvenile Court in Massachusetts after she encouraged her boyfriend, Conrad Roy, to commit suicide. On 12th June 2014, Roy drove his truck to a secluded parking lot where he was found dead the next day, killed by Carbon Monoxide poisoning. During the ensuing investigation, text message records showed Roy and Carter, who met in 2013, had frequently discussed Roy’s suicidal thoughts, history of mental health difficulties, and previous suicide attempts. While carter initially dissuaded Roy from acting on those thoughts, she eventually changed course, regularly encouraging him to commit suicide and helping him devise the method he would use. 

Roy had pumped carbon monoxide into his vehicle, and during a moment of hesitation in which he exited the car, Carter virtually stepped in to seal his fate. She instructed him to “get back in,” the three words that allegedly encouraged his suicide. The case received immediate media recognition, largely because all communication between the Carter and Roy was via text messages and phone calls, meaning a potential conviction would be rooted in Carter’s virtual actions alone. In the absence of an applicable cyberbullying or encouraging suicide statute in Massachusetts, the case was tried under a theory of common law involuntary manslaughter.

Michelle carter’s actions were morally despicable but could her words only make her guilty of manslaughter? Did she fulfill the causation element? The juvenile court found Carter guilty. Although he did not issue a written opinion supporting his decision, Judge Lawrence Moniz did summarize his rationale in a verbal statement given at the time of the verdict. 

The judge explained that prosecutors proved beyond reasonable doubt Carter’s words of encouragement in the weeks leading up to the suicide were wanton or reckless, but failed to prove that this conduct caused Roy’s death. 

In his view, Roy’s research, preparation, and expressed desire to commit suicide made it clear that Carter’s support at that time did not cause his death. However, Judge Moniz observed, when Roy exited the truck and abandoned his suicide attempt, he “br[oke] that chain of self-causation.” Given Carter’s knowledge of Roy’s fears and the danger posed by the toxic environment within the truck, Judge Moniz found Carter’s instruction to get back into the truck at Roy’s crucial moment of equivocation to be wanton and reckless conduct. Carter’s instruction created “a life-threatening risk” to Roy by “put[ting] him into that toxic environment” and thus imposed on Carter “a duty to take reasonable steps to alleviate [that] risk.” Ultimately, Carter’s “actions and also her failure to act, where she had a self-created duty,” constituted wanton and reckless conduct that “caused the death of Roy.” This guilty verdict was affirmed by the Supreme Court.

These statements might be quite confusing but I agree with the causation analysis given by David M. Shapiro in his article in the Harvard Law Review, 2018. He states that a more coherent approach would have drawn on a simpler, conduct-based theory: Carter’s conduct, namely her constant pressuring and definitive command to “get back in” the truck, overwhelmed Roy’s free will such that his act in obeying that command could be attributed to her.

Not only does this case raise many social questions but also legal ones. While what we say on the Internet or through our phones can bring into question our morals, can it in fact make a person legally liable? If such a situation like the case of Carter were to happen in Kenya, would we be prepared to respond? How does the issue of virtual presence relate to the offences relating to murder or with the issue of freedom of speech? 

Does counselling another to commit suicide via virtual presence marry with domestic law?

Attaching criminal liability to what people say and how they act through their devices is a very important and yet, a very delicate topic. It is asking people to take responsibility for how their actions and words affect other people.  As a Kenyan, can I be held liable if I do, via the various devices, promote a suicide attempt, whether it was successful or not? This aspect should be addressed in two ways, the why (why should I be held responsible?) and the how (how can this be done? Which laws would apply?).

Criminal liability

I am of the views that a person should only be held criminally liable if he/she had a duty to or not to perform a certain act and the performance or failure to perform the act amounts to a criminal act that they should be held liable for. Meaning that, unless the person was legally under an obligation to perform or refrain from such an act then they cannot be held criminally liable. Therefore, we would logically ask, do I have a duty to make sure my words and actions through a device or the Internet do not lead to suicide or an attempt at suicide?

The harm principle

The harm principle, John Stuart Mill’s theory of Utilitarianism and Liberalism, is not designed to guide the actions of individuals but to restrict the scope of criminal law and government restrictions of personal liberty. For Mill – and the many politicians, philosophers and legal theorists who have agreed with him – social disapproval or dislike for a person’s actions isn’t enough to justify intervention by government unless they actually harm someone.

The phrase “your freedom to swing your fist ends where my nose begins” captures the general sentiment of the principle. The approach is usually linked to the idea of ‘negative rights’, which are demands someone does not do something to you.

David Brink in his article Mill’s Moral and Political Philosophy holds that Mill distinguishes between harm and mere offense. Not every unwelcome consequence for others counts as a harm. Offences tend to be comparatively minor and ephemeral. To constitute a harm, an action must be injurious or set back important interests of particular people, interests in which they have rights. Whereas Mill appears to reject the regulation of mere offense, the harm principle appears to be the one justification he recognizes for restricting liberty. 

Second, Mill envisions that the harm principle is something that we can apply prospectively to prevent someone from acting in certain ways and causing harm. In many cases all we could reasonably know is that a given action risks harm. Fortunately, this seems to be all that Mill requires. If anyone does an act hurtful to others, there is a prima facie case for punishing him by law or, where legal penalties are safely applicable, by general disapprobation.

The harm principle would then apply even though Conrad Roy had not died in the Michelle Carter case. The moment she started to use her freedom of speech and expression to encourage and pressure Roy and exploiting the nature of her relationship with him and thus her influence, she would, had the case happened in Kenya, be guilty of counselling another to commit suicide because her freedom of expression would be interfering with the right to life of the victim. That her freedoms would end where they start to disrupt or interfere with the enjoyment of rights by others. Regardless of the moral reprehensibility of her actions, Michelle would still be criminally liable because her actions caused or were likely to cause actual ‘harm’.

Mill’s position is that causing harm is always pro tanto reason—a non-negligible reason—to regulate the action, but nonetheless a reason that might be outweighed by countervailing reasons not to regulate. The Carter case is just the beginning of cases of this nature. Technology will keep advancing and it is imperative that regulations of such areas exist. Taking a proportionality analysis, it would be better to regulate the freedom of expression in so far as it interferes with other people’s rights. In other words, I can say what I want, as long as what I say does not interfere with legitimate rights enjoyed by other people. 

Roy (left) and Michelle (right).

A person should only be held criminally liable if he/she had a duty to or not to perform a certain act and the performance or failure to perform the act amounts to a criminal act.

Freedom of expression

I hold that human rights are not absolute. There are rights that can be limited and those that cannot be limited. Alan Gewirth gave an example and asks us to consider what would generally be regarded as the most plausible candidate: the right to life. This right entails at least the negative duty to refrain from killing another human being. But it is contended that this duty may be overridden, that a person may be justifiably killed if this is the only way to prevent him from killing some other, innocent person, or if he is engaged in combat in the army of an unjust aggressor nation with which one’s own country is at war. 

From this example, we can see that not only can rights be limited, but such limitation can be justifiable. James Nickel writes that there seems to be priority variation within human rights. For example, when the right to life conflicts with the right to privacy, the latter will generally be outweighed. I wouldn’t say its ‘priority’ per se, but rather that it is proportionality. And it this proportionality that is defines which right would make one right take precedence over another on a case by case basis.

Freedom of expression is a constitutionally protected right under Article 33 of the Constitution of Kenya. Nevertheless article 25 of the same constitution provides for fundamental rights and freedoms that cannot be limited and the freedom of expression is not among them thus it is not absolute. One of the factors to be taken into account when limiting a fundamental freedom or right under article 24 (1)(d) is the need to ensure that the enjoyment of rights and fundamental freedoms by an individual does not prejudice the rights and  fundamental freedoms of others; article 33(3) further provides that in the exercise of the right to freedom of expression, every person shall respect the rights and reputations of others. These seem to inform that we can exercise the freedom of expression as long as it doesn’t affect the rights and reputations of others.

Article 33(3) assigns a duty and responsibility to ensure that as we exercise our right to freedom of expression, we shall be sure to respect the rights of others. The constitution thus imposes a duty upon us and in light of this duty, one of the defences brought forth by Carter was that her conviction by the Juvenile court ‘violated her right to free speech under the First Amendment.’ Just as it failed on appeal, this argument would also fail domestically, because even though she was exercise her right to freedom of expression, the moment she violated her duty to respect the rights of the victim, specifically the right to life, she exceeded the limits of this right.

The right to life is not only guaranteed by various international instruments, but also by the Constitution of Kenya and thus the freedom of expression can be limited if it affects the right to life of another. I do, however, agree that in assessment of whether this fundamental freedom can be limited, we ought to apply the law as provided in the constitution. This is because it is difficult to have a definitive way assessing proportionality and balancing one right against another, as facts and circumstances vary.

Principle in the Second Degree

The aspect of virtual presence is new. So, why would a person still be held liable?

Suicide was originally a Common Law crime in England. In such jurisdictions, “normal doctrines of complicity were thought to be fully applicable to the crime of suicide…” A defendant who aided or abetted the commission of a suicide could be a principal in the second degree, rendering him or her guilty of murder.. 

Using the ‘principle in the second degree’ to explain virtual presence, we should first look at the definition. Principal in the second degree has been defined as a person that is present at the scene of a crime, and aids, abets or encourages the commission of the crime with the required criminal intent. The first requirement is that the person or rather the defendant be present at the time of the commission of the crime. Does virtual presence count as being present? Was this doctrine limited to physical presence?

At the time of inception of this doctrine, instant messaging was not a reality. But now, it is our duty to make sure that the law adopts to the current realities of life. In Commonwealth V. Michelle Carter, she was in communication with the deceased at the time of his suicide and her last message to him was ‘get back in’(to which she meant for him to get back in the car). One of the arguments brought forth by the defense was that, as a matter of law, words alone – without a ‘physical act’ – could not sustain a manslaughter charge. Justice Cordy, who presided over the case then asserted ‘…the defendant’s virtual presence at the time of the suicide…’, underscoring the fact that presence is not restricted to physical presence only. 

The second requirement under the doctrine of the principal is that the defendant aids, abets or encourages the commission of the crime. Under domestic law, this would mean that the prosecution would show that the accused procured the person to kill himself, counseled the person to kill himself or aided the person in killing himself which is an element that is fairly axiomatic. 

The third requirement is that the accused had the required criminal intent. Showing intent is one of the challenges that the prosecution might face. If you add technology into the equation it becomes even more challenging. I would invoke the conduct based approach and delve into previous communications between the defendant and the accused as was done in the Carter case. This however will put a thin line between promoting a suicide and cyberbullying and harassment. 

Proving criminal liability in the suicide of another

Section 225 of the Penal code provides that, any person who; procures another person to kill himself; or counsels another to kill himself and thereby induces him to do so; or aids another in killing himself, is guilty of a felony and is liable to imprisonment for life.

There is little to no information about counselling another to kill himself in Kenya. However, a deep dive into the information from other states has shed some light on the issue. In New York for example, the New York Penal Law under section 120.30 is titled, ‘Promoting a Suicide Attempt’. It defines promoting suicide as intentionally causing or aiding another individual to attempt suicide.

There are two elements that the prosecutor must establish, the first that the victim attempted to commit suicide, and that the defendant intentionally caused the individual to attempt suicide or aided in this attempt. This crime often revolves around whether the defendant’s actions were intentional. In order for a prosecutor to establish intentional conduct, he must show that the conscious objective or purpose of the defendant was to cause or aid in the victim’s suicide attempt.

It would be viable to apply the same analysis in Kenya, such that for one to be guilty under Section 225 of the Penal Code, there must have been an attempt at suicide by another party (whether successful or not), and the defendant must have procured, counseled or aided the person with the intention that they commit suicide, thereby reiterating the major aspects of criminal law in Kenya; actus reus and mens rea. 

Procuring and aiding a suicide could be fairly direct to prove. The difficulties may arise when it comes to determining what amounts to counselling another to commit suicide. Relying on the Michelle Carter case, Justice Cordy highlighted “…the ‘coercive quality’ of Carter’s encouragement given the circumstances, namely the intimate relationship between the two, the defendants virtual presence at the time of the suicide, the previous constant pressure the defendant had put on the victim, and his already delicate mental state, her actions overbore the victims willpower..” 

Procuring and aiding a suicide could be fairly direct to prove. The difficulties may arise when it comes to determining what amounts to counselling another to commit suicide.

Two things stand out from this statement, first, the coercive quality of Carter’s encouragement given the nature of her relationship with the victim, and secondly that her actions overbore the victim’s willpower. I propose that these statements align with Kenyan law which provides for counselling another to commit suicide. ‘Counselling’ would require some kind of relationship between the two people, be it familial, romantic, friendship or any other such that they can overbear another’s willpower. 

The wording of our domestic laws is not specific as to whether this procuring, counselling or aiding of a suicide should happen only physically. Thus interpretation is left to the discretion of the court. The prosecution need only show that there was procurement, counselling or aiding whether or not it happened in person or via a device. The phrasing of the domestic legislation is such that the medium of such an activity is not really called into question.

Therefore, Michelle Carter would have easily been found guilty under Kenyan law because there is a law relating to promotion of a suicide and she would have been guilty of counselling another to commit suicide.

Murder via virtual presence and domestic law

Section 203 of the Penal Code provides that any person who of malice aforethought causes death of another person by an unlawful act or omission is guilty of murder. The act is very specific about the ingredients of murder and therefore, would a case like the Michelle Carter’s amount to murder in Kenya?

The defining factor would be that the accused not only had malice aforethought but their actions caused the death of the victim. In the Carter case we have already seen that she regularly encouraged him to commit suicide and helped him devise the method he would use. She encouraged him to commit suicide as soon as possible and scolded him when he delayed plans to do so. The prosecution further demonstrated that, around the time Roy was committing suicide, he and Carter shared two lengthy phone conversations. Carter later texted her friend to explain Roy called her after exiting the truck because he was “scared.” In response, Carter told him to “get back in,” which he did. An expert testified that it took approximately twenty minutes of exposure for Roy to die from carbon monoxide poisoning, and Carter told friends that she had listened over the phone as he died.

Beginning with malice aforethought, Section 206 of the Penal Code provides that malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances— (a) an intention to cause the death of or to do grievous harm to any person, whether that person is the person actually killed or not; (b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether that person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused; (c) an intent to commit a felony; (d) an intention by the act or omission to facilitate the flight or escape from custody of any person who has committed or attempted to commit a felony.

In the Carter case we know that Roy was troubled, desperate to stop the pain. At times, he seemed to think that suicide was the answer, but wasn’t sure he wanted to die. But in order to determine whether Carter possessed malice aforethought under domestic law an analysis of her conduct is required. Here are some of the messages shared between the two.

“I don’t think I have it in me,” Roy texted Carter one week before police found him dead in his pickup truck in a Fairhaven parking lot.

“I knew it,” Carter, 17, responded.

“I’m too scared,” Roy wrote. “You’re right. I don’t have it in me.”

“Are you gonna do it tonight?” Carter asked on July 3.

“I’m gonna try,” Roy responded.

“How hard are you gonna try?” she asked.

“Hard,” he said.

“How bad do you want it because if you want it bad, you should succeed,” she said to him.

For months, she and Roy discussed various ways of committing suicide, the level of pain one might endure, and the likelihood that the attempt would be successful, according to text messages presented in court. Carter eventually became annoyed that Roy hadn’t followed through.

“So it didn’t work?” she texted him. “You said you wanted this bad. I knew you weren’t going to try hard. I feel like such an idiot . . . You lied about the whole thing. You said you were gonna go to the woods, I thought you really wanted to die. But apparently you don’t. I feel played and stupid.”

After Roy tried to overdose on Nyquil and Tylenol, Carter scolded him for “purposefully” taking too little, and suggested he take 10 doses of Benadryl and a bottle of Tylenol. When he expressed reservations, she told him to “Hang yourself, jump off a building, stab yourself. I don’t know. There’s lots of ways.”

Two days later, Roy wrote her, “How was your day?”

Carter responded, “When are you doing it?”

We can see the accused constantly counselling the victim to commit suicide and expressing her disappointment when he put it off. Not only that, but we see evidence that Conrad was scared and got out of the car and Michelle prevailed upon him to get back in, and stayed on the phone while he died. Looking at the wording of Section 206 (b) we see that Carter had knowledge that her actions would cause the death of Conrad and she showed complete indifference to this and further encouraged him to do it and used her influence to put him back in the situation that ultimately caused his death. From her conduct, it is evident that there was indeed malice aforethought. 

Under Section 203 of the penal code, the next thing would be to show that her actions caused the death of the victim. In the Carter case, there have been lots of argument surrounding the causation element. However, seeing as we are trying to figure out how virtual presence can marry with offences relating to murder in Kenya, I would say our laws are quite direct. Under Section 213 (e) of the Penal Code, a person is deemed to have caused the death of another although his act is not the immediate or the sole cause of death if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons.

It is disputable whether her previous communications with the deceased would have cause his death. Nevertheless, her last instruction for him to ‘get back in the car’ caused his death. Under article 213, this does suffice as causing the death even though Conrad committed suicide. Under domestic law, it would indeed amount to murder.

If the felony-murder rule relies upon a similar theory of risk creation, how can it impute the culpability of murder rather than that of reckless homicide? 

Imputed criminal liability

There are many theories justifying imputed liability. Paul Robinson in his article Imputed Criminal Liability explains imputed liability using the causal theory: creating dangerous situations where, ‘[A]n actor who does not personally satisfy an objective element, such as conduct, but who directly causes the required element by other means should be treated as if he satisfied the element himself’.  Thus, in general terms, the imputation of required elements under a causal theory might be viewed as imputation based upon an actor’s causal responsibility for creating the dangerous situation in which the harm or evil can occur absent the culpable state of mind normally required by the offense. Under this theory, one could argue that if a required element can be imputed to an actor when he creates a dangerous situation.

If the felony-murder rule relies upon a similar theory of risk creation, how can it impute the culpability of murder rather than that of reckless homicide? The answer may be that while the causal theory of risk creation does not fully explain liability for murder, that causal theory combined with another does. The felony-murder rule may in fact combine the causal theory of the dangerous situation-which accounts for the actor’s liability for reckless homicide-with the culpability of the underlying felony to produce a single “cumulative culpability” equal to murder. While a theory of risk creation alone may suggest limiting liability to offenses requiring recklessness as to a result, it does not require limitation based on the identity of the actor who causes the harm once that situation is created.

Putting this in context, before her last instruction to the victim, Carter’s actions would be, under domestic law, counselling another to commit suicide. Because of their relationship, Carter’s influence on the victim’s decision could be said to have created a dangerous situation because it is clear that he was hesitant. Her constant pressuring then made him take action thus creating the situation for someone who was already unstable seeing as he had tried to take his life before. Her behavior was reckless. 

But for her to be guilty of murder I would suggest we apply this theory. If Conrad had chosen a more immediate method of death then we could say that her creation of the dangerous situation would only make her culpable for manslaughter. But here, Conrad got out of the car. Her final instructions for him were to ‘get back in’. His acts were not his own in that moment. Thus even though it was a suicide, Michelle Carter could still be found guilty of murder under domestic law because his actions could be imputed to her.

Manslaughter via virtual presence under domestic law

Under Common Law, the elements of common law involuntary manslaughter are as follows: (1) the defendant’s conduct must have been intentional, (2) it must have been wanton or reckless, and (3) it must have caused the victim’s death. However, under Section 202 (1) any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter. This is why this analysis of manslaughter will be different.

Using the Carter case, let’s only consider her actions before she gave that infamous final instruction. It has already been demonstrated that under domestic law, her actions amounted to counselling another to commit suicide. Further, it has also been demonstrated that suicide is an unlawful act under domestic legislation. The requirements for manslaughter include an unlawful act or omission. Therefore there are two unlawful acts and I invoke the imputed criminal liability arguments here as well.   

As for the requirement of causing death, I again rely on earlier arguments under Section 213 (e) of the Penal Code, that a person is deemed to have caused the death of another person although his act is not the immediate or the sole cause of death if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons. With that being said, I turn to answer the question of cyberbullying and harassment and the issue of Internet polls.

Cyberbullying and harassment

There is no law in Kenya that specifically mentions cyberbullying or harassment. However, it has been defined as bullying that takes place over digital devices and includes sending, posting, or sharing negative, harmful, false or mean content about someone else. Section 27 (1) of the Computer Misuse and Cybercrimes Act provides that a person who individually or with other persons, willfully communicates either directly, with another person or anyone known to that person commits and offence, if they know or ought to know that their conduct — (a) is likely to cause those persons apprehension or fear of violence to them or damage or loss on that persons’ property; or (b) detrimentally affects that person; or (c) is in whole or part, of an indecent or grossly offensive nature and affects the person.

Relying on earlier assessments of what could amount to ‘counselling another to commit suicide, I opine that harassment or cyberbullying do not meet the threshold because the former would require some kind of relationship between the two people in which one can overbear the willpower of the other. However, Looking at Section 27 (1)(c), it provides for ‘detrimentally affecting’ another person. The use of the word detrimental is wide such that it can include suicide. 

These actions are unlawful and thus if their result is causing a suicide, then such a person could be guilty of manslaughter. Again, in such a case, there would be two unlawful acts: the harassment or bullying and the suicide. Nonetheless I rely on the imputed criminal liability argument. By bullying and harassing someone you create a dangerous situation. But the assessment of what amounts to a dangerous situation should be done on a case by case basis and with reference to conduct. 

Taking the example of the Carter case, assuming they were not in a romantic relationship and barely knew each other, if Carter kept on badgering Conrad to kill himself and this is done through constant bullying or harassment and Conrad commits suicide then under domestic law she could be culpable. But there were other factors like he had already tried to commit suicide and was in a delicate state of mind. For this reason, assessment should vary. 

In the case of Megan Miers, she was constantly harassed and bullied by the mother of her friend who set up a fake ‘myspace’ account and in a specific message said, “…the world would be a better place without you…” Shortly after the message, the 13 year old hanged herself. The accused was her neighbor and the mother of one of her friends and was therefore aware that her victim was a child. Her constant messaging and harassment online constituted unlawful conduct and thus regardless of the suicide she could still be guilty under domestic law under the doctrine of imputed liability.  

Internet polls 

Internet polls are a phenomenon that allows people to vote online. Though this voting is anonymous, the providers of these services have access to the information relating to the identity of the voters. However the big question is, can voting on an internet poll make you liable for manslaughter?  

Voting on an internet poll does not amount to counselling another to commit suicide, as the latter would require some kind of relationship between two people in which one can overbear the willpower of the other. This would be the case under Kenyan law.

An example of such a situation happened in Malaysia, a teenage girl committed suicide after 69 percent of pollsters on an Instagram account supported the option to kill herself. If such a situation happened domestically we would not have any law under which they could be charged. 

The case of Michelle Carter might be the first but is definitely not the last of its kind. The issue of virtual presence and the promotion of a suicide is one that should be taken seriously. 

Many people hide behind the anonymity of a message board and never take a moment to ponder how what they say will affect the intended recipient. Don’t get me wrong; I do not support Internet censorship. But we must be responsible in how we exercise of our rights and freedoms. 

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