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24 Season 3 and the Duty to Rescue [spoiler alert for those who haven't seen the season yet]:

I'm rather behind the times, but I just finished watching season 3 of "24." As you may recall, when Alan Milliken is dying of a heart attack, his wife Julia is about to give him his heart pills when the president's ex-wife Sherry persuades her not to. Alan, being handicapped, can't get to the pills himself, and dies.

For the rest of the season, Julia and Sherry worry that they are going to be convicted of murder. My question is whether such a charge would stick under California law for either or both. There is generally no duty to rescue, but as Alan's wife, did Julia have some legal obligation, enforceable by criminal law, to come to his aid? And while I presume Sherry had no legal obligation whatsoever to Alan, did she somehow violate the law by persuading Julia not to give him the pills?

UPDATE: The standard answer in criminal law is that a spouse does have a duty to rescue, enforceable by criminal law. That leaves the question of Sherry's liability. What exactly would she be guilty of?

Drolz:
Isn't there a legal difference between not aiding and actively withholding medication?
5.31.2009 10:22pm
DavidBernstein (mail):
The medicine was out of Alan's reach, so there would have to be a theory that because he relied on her to provide his medicine when he needed it, failure to do so was the equivalent of murder.
5.31.2009 10:43pm
TNeloms:
Prof. Bernstein, you might want to put up some sort of spoiler alert before posting something like that. I know it's an oldish season, but if you only watched it now then there might be others who'd appreciate an alert. (I'm not one of them; I watched it a few years ago, and it was awesome.)

In any case, it's an interesting question. I'm not a lawyer, but it seems like there should be a straightforward answer since this situation (spouse acting as caregiver) seems very standard.

At the very least, if a caregiver failed to give medication properly, wouldn't it be neglect? If a hired in-home nurse did this, it would be probably be similar to a doctor purposely "killing" a patient by withholding care, right? It's possible that a spouse in that role might be held to the same standards and be subject to the same laws. What are the laws regarding such an act by a doctor or professional caregiver?
5.31.2009 10:50pm
Justin (mail):
TN is right. Julia took on a responsibility and had a fiduciary relationship - her knowingly and unjustified dereliction of duty with intent to cause Alan's death is 2nd degree murder. Shelia is a somewhat tougher position, but ultimately if I remember there is an overt act on her part, so she's guilty of conspiracy, right? In any event, encouraging someone to commit murder is, in fact, a crime, right?
5.31.2009 11:05pm
Daryl Herbert (www):
What state did the killing take place in (or was it the District of Columbia)?
5.31.2009 11:07pm
JAB:
at least according to barbri, a close relationship (like that of a parent/child or husband/wife relationship) can give rise to a duty to act. Alternatively, a duty to act can arise through an assumption of duty. By acting to care for an idividual (providing medical support) the actor becomes liable for failure to cary out that duty. Absent any action on her part to provide care previously i.e. she had never helped him with any medical needs, there is no duty to act.
5.31.2009 11:14pm
ArthurKirkland:
Unless Julia was being compensated as an employee, what would be the basis for assigning an obligation to act?

I don't watch the show, but that must have been one hell of a persuasive argument by the wife's friend.
5.31.2009 11:18pm
DavidBernstein (mail):
(1) Again, it's California.
(2) Let's keep in mind that we are talking about criminal liability, not tort liability.
5.31.2009 11:25pm
Redlands (mail):
First deg. murder. It can be inferred, if that is even necessary, that Sherry knew that Milliken would, or could, die if he didn't get the pills. Her affirmative act was to persuade Julia not to give him the pills. That act is a proximate cause of his death, assuming the pathologist opines that but for withholding the pills he would have survived. Though not necessary to prove, she being an ex wife motive might exist. Act, state of mind (intent), prox. cause. What's missing?
5.31.2009 11:53pm
CrazyTrain (mail):
Not a tough question. Justin &JAB both nailed it -- and this applies to CRIMINAL as well as tort law. First year criminal law basics here. Duty to act on the basis of the relationship and the past assumption of duty to care. This would clearly be murder on the facts as described. If you don't believe me, you can ask for Prof Volokh's opinion as I believe that he mentioned recently that he taught first year crim law this past year.
6.1.2009 12:04am
epeeist:
Try taking a look at "Criminal Liability for Omissions: An Inventory of Issues" by Larry Alexander, chapter 6 in "Criminal Law Theory". Found in a Google books result, discusses relationships giving rise to criminal liability and discusses various cases including U.S.
6.1.2009 12:22am
deliotb (mail):
First deg. murder. It can be inferred, if that is even necessary, that Sherry knew that Milliken would, or could, die if he didn't get the pills. Her affirmative act was to persuade Julia not to give him the pills. That act is a proximate cause of his death, assuming the pathologist opines that but for withholding the pills he would have survived. Though not necessary to prove, she being an ex wife motive might exist. Act, state of mind (intent), prox. cause. What's missing?
Well, let's say I'm with my sister, who is a doctor, and we happen past a stranger who suddenly has a heart attack. He's going to die unless someone helps him. My sister is about to leap to the rescue, but I remind her that the ungrateful bastard might sue her if he recovers, let him die. She decides not to intervene. Stranger dies. I'm certainly not criminally liable for murder, even though there is act, state of mind, and proximate cause.
6.1.2009 12:23am
epeeist:
As for the other person, no cite, but a different search turned up a reference (not sure if accurate) to a California case in which a bartender had no duty to call the police, but interfered with someone else calling the police, and was found (tortiously?) liable because there was no duty to rescue, but there was a duty not to impede someone else who chose to rescue.
6.1.2009 12:24am
Gulf Coast Bandit (mail):
deliotb: Not a lawyer or a law student even, but it seems as though the difference between 24 and your hypothetical is that in 24, there was duty to act. Sherry convinced Julia to ignore duty to act. In your situation, there is no duty to act; therefore, there is no crime.
A duty to act on somebody's part is prerequisite for this sort of charge to stick, which I think was implicit in Redlands' comment. If it wasn't, it should have been.
6.1.2009 12:56am
Upend, Coming:
Long story short: my guess is solicitation to commit homicide. I'm just kind-of running on memory here -- and it is late already.

I believe it comes down to whether her criminal act, if any, was in the persuasion or in the later death? I am not familiar with California criminal law beyond the basic Murder 1 &2 and manslaughter taught in CrimLaw.

One person above mentioned conspiracy, and for conspiracy the crime is in the agreement. On the "24" facts, Julia does agree with Sherry to do something, but what is that something?

They would need to be agreeing to commit a crime. Only Julia has a duty to act (on a spousal duty theory). I believe you guys said that Sherry could not commit the basic crime herself by omission. I thought for conspiracy you need two mens reas though: the mental state to make the agreement and the mental state to commit the predicate offense. So what does that say for a rebuttal of legal impossibility? For example, if two people agreed to burgle a house, but it was one of the conspirator's houses to which he had lawful access and ownership of all property therein, is it a conspiracy? California, if I remember correctly, follows the common law, rather than the MPC. Thus, for conspiracy you need two guilty minds. I don't think Sherry has a guilty mind for conspiracy, regardless of how vile her goal was.

On the other hand, if there was a valid conspiracy, then Julia's act of withholding the pills could be "in furtherance" of the conspiracy and get her as the overt act.

As for murder, arguably Sherry did not cause the death, but that would result in no homicide liability. But, on the flip side, if we say that her acts did constitute a cause, then we have to ask whether she had an intent to kill. The common law "intentionally" standard incorporates a goal or purpose or knowing mental state that his death will occur because of this act. Thus, the issue is whether in her act of persuasion she either had the purpose or knowing mental state to cause his death in her persuasion.

I would really question if Sherry had a rational basis for believing that her words of persuasion were certain to result in his death. In analogy, firing a paintball gun at someone and expecting them to die. It reminds me of the case of a person who honestly and in good faith believes that voodoo will kill a person and performs the ritual as they believe they need to kill the person, but the person lives. I this is a stronger, but still tenuous, link because I don't think these circumstances would prove attempted murder if Julia agreed, but then reneged, or never agreed to begin with.

That really leaves me with just one idea: solicitation. I would expect some inducement. I don't know the contents of her persuasion, but it is possible to read this as a solicitation issue: where one person is asking another to commit a crime and the crime is in the asking. Thus, Sherry does not need to be able to commit the crime herself, but merely convince someone else to do it.


In the interest of full disclosure: I'm not sure what my grade in CrimLaw is yet, but hopefully I don't look like too much of a dillweed by getting this all wrong.
6.1.2009 1:43am
Upend, Coming:
I know I could have followed through on the question by answering solicitation to what type of homicide, but I am tired. Good night everyone.
6.1.2009 1:54am
martinned (mail) (www):
Here's an interesting article on Duty to Rescue in US law. Apart from giving a wealth of empirical data, it also describes the law in Vermont, Rhode Island and Minnesota, the three states that do have a criminal duty to rescue on the books. (starting on p. 33)
6.1.2009 9:04am
Greg (www):
Sherry can be tried as an accomplice to the murder and held liable to the same degree as Julia. Encouraging someone to commit a crime is a sufficient act to constitute "aiding and abetting." See, for example, People v. Villa, 156 Cal. App. 2d 128, 134, 318
P.2d 828, 833 (1957) ("[t]he test is whether the accused in any way directly or indirectly, aided the perpetrator by acts or encouraged him by words or gestures.") Cal. Penal Code 31 treats anyone who encourages a crime as a principal in that crime.

The court must also find, however, that the accomplice was aware of the criminal intent of the actor and intended to encourage such intent. That seems clear here, especially since they worry about their conviction for murder after the fact. If, however, Sherry was operating under the mistaken belief that it was not a crime for even a wife to withhold care, then there might not be the requisite mens rea to hold her liable for the murder.

One could argue that since it was not a crime for Sherry to withhold care, it couldn't be a crime for her to encourage Julia to do so. However, if she possessed the requisite knowledge that it was wrong for Julia to withhold care, and the specific intent that Alan should die, she can be tried as an accomplice, even though it would be non-criminal for her to withhold care. You can see in the criminal textbooks several examples of this. A store owner who leaves his door unlocked with the intent of facilitating a robbery can be an accomplice, even though it wouldn't be a crime for him to take property from his store. Encouraging a Jazz musician to perform for money in violation of his visa can subject one to accomplice liability even though it would be no crime for you to perform at the same jazz club. (Wilcox v. Jeffery, King's Bench Div., [1951] 1 All E.R. 464.)

The point of accomplice liability is to punish the encourager derivatively for the crime of the actor. If, as you say, a wife withholding medical care from her husband is criminal, someone encouraging it could be charged as a principal in the same crime.
6.1.2009 9:15am
Observer:
Season 3 was the worst of all seven seasons.
6.1.2009 9:31am
David Chesler (mail) (www):
Tangential question: If a woman offers to have sex with someone so that he won't rape someone else has that woman been raped? (I gave up on this most incredibly awesome of all shows after the first season.)
6.1.2009 10:30am
Quixotic (mail):
Off-topic, but I can't think of any TV series in the last couple decades that dramatizes so intelligently many moral dilemmas as does 24 (even the last couple seasons, which haven't been stellar, by 24 standards.) But I never saw the Sopranos.
6.1.2009 11:15am
Quixotic (mail):
Chesler: No.

But if the rapist threatens to rape another, unless she has sex with him, and she does it, that's rape. (But the threatened rape must be violent rape, i.e., a species of bodily harm, and not, e.g., statutory rape.)
6.1.2009 11:19am
Fub:
... As you may recall, when Alan Milliken is dying of a heart attack, his wife Julia is about to give him his heart pills when the president's ex-wife Sherry persuades her not to. Alan, being handicapped, can't get to the pills himself, and dies.

...

There is generally no duty to rescue, but as Alan's wife, did Julia have some legal obligation, enforceable by criminal law, to come to his aid? And while I presume Sherry had no legal obligation whatsoever to Alan, did she somehow violate the law by persuading Julia not to give him the pills?
In addition, there is a duty not to abandon without justification a rescue once begun.

Sherry interfered with a rescue in progress. That could be at least misdemeanor reckless endangerment under (my admittedly older copy) of Model Penal Code Section 211.2:
A person commits a misdemeanor if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury. ...
6.1.2009 11:38am
Greg (www):
The answer on Chesler's question isn't quite so black and white. Quixotic is probably right in the majority of states, but the MPC allows for rape whenever submission is compelled by threat of force or "by any threat that would prevent resistance by a woman of ordinary resolution." Several states extend the definition of rape to situations in which consent is obtained by duress, coercion, extortion or using a position of authority. New Jersey defines coercion to include threatening to "[p]erform any other act which would not in itself substantially benefit the actor but which is calculated to substantially harm another person." California defines rape as sexual intercourse with a person where it is accomplished against a person's will by means of force, violence, duress, menace or fear of immediate bodily injury on the person or another.

You'd basically be arguing that the offer, and therefore, any implied consent, was made under duress, so there was no consent to the sex.

I think 24 does a good job of illustrating the moral dilemmas which occur at the margins - the academic thought experiments that rarely occur in real life (ticking time-bomb, anyone?). The Wire, however, illustrates the moral quandries that occur in the every day life of criminal procedure.
6.1.2009 11:48am
Quixotic (mail):
Greg,

I'll check out The Wire, thanks. It's always been my personal motto that a day without television is like a day without sunshine.
6.1.2009 12:21pm
Aeon J. Skoble (mail):
Chesler: remember, they had both been kidnapped. IANAL, but doesn't that mean that Teri's offer was under duress?
6.1.2009 1:29pm
DennisN (mail):
Greg:


If, however, Sherry was operating under the mistaken belief that it was not a crime for even a wife to withhold care, then there might not be the requisite mens rea to hold her liable for the murder.


Doesn't that come under the "ignorance of the Law is no excuse" rubric? She had the mens rea to commit homicide, and acted on thet mens rea, with the result that the victim died. The fact that she didn't know the homicide in question was illegal, shouldn't change the case.
6.1.2009 1:40pm
ShelbyC:
It's been a while, but doesn't Sherry actually grab the pills?
6.1.2009 2:29pm
hawkins:
Given that you gave up following sports because there were more important/productive/meaningful uses of your time, what are you doing wasting your time watching 24?
6.1.2009 8:23pm
deliotb (mail):
Good question. I watch it while I exercise. Makes the time pass very quickly.
6.1.2009 11:34pm
Redlands (mail):

Well, let's say I'm with my sister, who is a doctor, and we happen past a stranger who suddenly has a heart attack. He's going to die unless someone helps him. My sister is about to leap to the rescue, but I remind her that the ungrateful bastard might sue her if he recovers, let him die. She decides not to intervene. Stranger dies. I'm certainly not criminally liable for murder, even though there is act, state of mind, and proximate cause.



State of mind is not to kill, only to protect someone from civil suit. I argue that's distinguishable and, as you point out, not criminal.
6.2.2009 10:17pm

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