Instigation to Commit Suicide

much, if not more, mentally disturbed as the unmarried woman. But, above all, it would have been scandalous to have given the benefit arising from the effect of parturition or lactation, quite independently of the legitimacy or other wise of the birth, to the illegitimate mother and to have refused it to the legitimate one. Indeed, as our law is based, we repeat, on the reaction of parturition or lactation itself on the mind of the mother, and not on any motive of saving the honour, the question of any distinction between legitimate and illegitimate mothers does not even rise, for consideration.

Finally, it may be observed that the law prescribed a maximum punishment tut no minimum: precisely in order to enable the Court to assess the appropriate punishment within that maximum, having regard to the particular circumstances of the case. It may well be that, in the particular case, the disturbance of the balance of mind of the mother was but very slightly removed from insanity.

Instigation to Commit Suicide

“Whosoever shall prevail on any person to commit suicide or shall give any assistance, shall, if the suicide takes place, be liable, on conviction, to hard labour or imprisonment for a term not exceeding twelve years” (Sect. 227).

In England, the intentional suicide of a sane person (Felonia de se) is still regarded by the law as an act of crime, and any attempt to commit suicide is an indictable misdemeanour433. Blackstone thus wrote about this crime

“Self-murder, the pretended heroism but real cowardice of the stoic philosophers, who destroy themselves to avoid those ills which they have not the fortitude to endure, though the attempting it seems to be countenanced by the Civil Law, yet was punished by the Athenian Law with cutting off the hand which committed the desperate deed. And also the law of England wisely and religiously considers that no man hath a power to destroy life, but by commission from God, the author of it: and, as the suicide is guilty of a double offence: one spiritual, in evading the prerogative of the Almighty, and rushing into His immediate presence uncalled for: the other temporal, against the King, who hath an interest in the preservation of all his subjects: the law has therefore ranked this among the highest crimes, making it a peculiar species of felony, a felony

433 Kenny, op. cit., p. 129

committed on oneself [...] a ‘felo de se’, in that he deliberately puts an end to his own existence, or commits any unlawful malicious act, the consequence of which is his own death: as if attempting to kill another, he runs upon his antagonist’s sword: or shooting at another the gun bursts and kills himself. The party must be of years of discretion and in his senses, else it is no crime”434 .

Kenny writes435:

“The common law endeavoured to deter men from this crime by the threat of degradations to be inflicted upon the suicide’s corpse, which by a natural unreasoning association of ideas, were often deterrent; and also by threatening the forfeiture of his goods, a vicarious punishment which, though falling wholly upon his surviving family, was likely often to appeal strongly to his sense of affection: thus the man who feloniously took his own life was at one time buried on the highway, with a stake through his body: and his goods were forfeited. The burial of suicides lost its gruesome aspect in 1824, when the original mode was replaced by the practice of the burial between the hours of nine and twelve at night, without any service. In 1870, the confiscation of the goods of suicides was put an end to in the general abolition of forfeiture for felony. And in 1882, the Statute 45 and 46 Vict. c. 19 removed every penalty, except the purely ecclesiastical one that the internment must hot be solemnised by a burial service in the full ordinary Anglican form. Even before the Common Law penalties of ‘felonia de se’ were legally abolished, the popular disapprobation of them, which ultimately secured their abolition, had gone very far in reducing the number of cases in which they were actually inflicted. For it rendered Coroners' Juries eager to avail themselves of the slightest grounds for pronouncing an act of suicide to have been committed during a fit of insanity, and consequently to have involved no felonious guilt. So if the evidence disclosed any source of anxiety which might have given the deceased a motive for his fatal act, anxiety was declared to have unsettled his mind; if, on the other hand, no motive could be found, then the very causelessness of his act was declared to be itself proof of his insanity. It is to be regretted that this practice of ’pious perjury’ - to borrow an indulgent phrase of Blackstone’s - became so inveterate that it has survived the abolition of those penalties

434 Comm., IV, 189 435 Op. cit., p. 127

which were its cause and excuse .[..] Juries who, in cases of suicide, pronounce on utterly inadequate grounds a verdict of insanity, forget that such a verdict, while no longer removes an appreciable penalty, may, on the other hand, throw on the family of the deceased an undeserved stigma, gravely affecting their social or matrimonial or commercial prospects”. Modern legislators do not make criminal the destruction of self nor attempted selfdestruction. A person who attempts, but unsuccessfully, to take away his life is, in a great number of cases, the proper subject of medical or psychiatric attention and not a fit subject for criminal sanctions: and where the attempt is successful the infliction of any criminal penalties “in memoriam” or against the family is repugnant in modern notions.

But the motives which thus justify the impunity of the suicide or would-be suicide himself do not apply in regard to any person who, out of wickedness of heart or interest or mistaken pity induces another to commit suicide or knowingly aids or assists the perpetration of the act.

Up to 1900, no special provision, as that now made by section 227 above quoted, was contained in our Code just as no such provision existed in the models, the Neapolitan and French Codes. Under the latter Code, In the absence of an express provision, incitement or assistance to suicide went unpunished. The argument was that as the principal act (the suicide) was not an offence, so the instigation or assistance to it could not be considered as an act of complicity.

This argument did not appeal to Pessina who, in the Draft Italian Code proposed by himself, deliberately left out any special provision to deal with the instigation or assistance in suicide, on the grounds that in his view, such participation should be considered as participation in a wilful homicide. “Se anche il legislatore” , he wrote, “non punisce il tentativo di suicidio in colui che vuole spezzare la propria esistenza, ciò non toglie che l’estraneo, aiutandolo in codesto fatto, commetta una lesione del diritto alla esistenza individuale, non potendosi applicare ai diritti inalienabili la massima ‘violenti et consentienti non fit iniuria’, Per questo motivo la sua azione antigiuridica non muta di natura, quantunque il soggetto passivo del fatto abbia consentito alla propria uccisione, dal momento che di fronte alla legge il consenso non ha, ne’ può’ avere valore alcuno. In poche parole, la posizione del compartecipante

non e’ dissimile da quella di colui che uccide il conseniente, e come per questo fatto il progetto (Savelli) non creò un titolo speciale di reato, ma lo considerò quale un omicidio comune, cosi' non deve creare uno per il partecipe al fatto del suicida”436 .

This reasoning, however, did not prevail. It was retorted that assistance given to a suicide must not be treated on the same footing as the killing of a consenting victim. In this the main act (that of killing) is done by another who should answer entirely for such act. In the case of the suicide, on the contrary, the other merely incites or gives assistance. Moreover, the instigator or abettor who does not participate in the principal act of killing, cannot be held liable for complicity, once that the principal act of selfkilling is not an offence. In the case of a person himself killing a consenting victim, that person is the author of a wilful homicide, which is a crime independently of the consent of the deceased.

For these reasons, propounded in the Official Report on the “Progetto Zanardelli”, the special provision of art. 370 was inserted in the Italian Code of 1889.

Section 223 of our Code, added by Ordinance No. XI of 1900, was obviously modelled on that provision.

Now the first condition in order that this section may apply is that there shall, in fact, have been a suicide. Unless death, self-inflicted, has actually taken place, the instigation or assistance, whether or not there has been an unsuccessful attempt, will not be punishable.

The material element of the crime consists in:

(a) prevailing upon another to commit suicide; or

(b) giving assistance to the suicide.

The words “prevail upon” stand for the word “determina” in the original Italian text. This was chosen, the Official Report explained in order to made it clear that a mere passing suggestion, or mere indirect words of encouragement would not constitute the crime. What was required was the fostering and ramming in the original idea in the suicide’s

436 Vide in Maino, op. cit., art. 370, p. 281