Assisted Suicide and the Dual Criminality Standard in Extradition Treaties

by Roger Alford

A federal district court in West Virginia recently rendered one of the most interesting extradition decisions I have ever read. The case of In re Extradition of Exoo, 2007 WL 3166926, involved allegations that George Exoo aided and abetted the suicide of Rosemary Toole.

Exoo is a minister for Compassionate Chaplaincy Foundation, an organization that travels abroad to assist dying people who wish to commit suicide. Critics call it “suicide tourism.” Here are the key facts:

On January 22, 2002, after some correspondence with Ms. Toole, Relator [Exoo] traveled with a friend to Ireland to meet her. Ms. Toole, then 49 years old, suffered from mental and emotional and cardiac problems and had attempted suicide once before. Ms. Toole paid Relator [Exoo] and his friend $2,500 to cover their travel and lodging in Ireland. Ms. Toole had obtained pills and helium to accomplish her suicide. After traveling about with Ms. Toole for a day or so, Relator [Exoo] and his friend and Ms. Toole focused upon her suicide. On or about January 25, 2002, with Relator [Exoo] and his friend present, Ms. Toole went through a practice session and then took the pills, drank some alcohol and smoked a cigarette. Relator [Exoo] told her “OK, Rosemary, time to put down the cigarette if you don’t mind.” Ms. Toole then pulled a plastic bag down over her head which deprived her of oxygen and introduced the helium and soon died. Relator [Exoo] and his friend waited for a period of time to assure that Ms. Toole was dead and then, apparently without notifying authorities of Ms. Toole’s death, went to Amsterdam and returned to the United States.

The key thing to note is that Exoo simply counseled Toole, he did not provide the physical means or participate in any act which resulted in Toole’s suicide. Therefore, there is uncertainty as to whether Exoo actually “assisted” or “aided” her suicide, i.e., committed acts that would be criminal in both the United States and Ireland.

Ireland punishes anyone who “aids, abets, counsels or procures the suicide of another.” In Ireland to “aid” means to give help, support or assistance and to “abet” means to incite, instigate or encourage. Exoo’s alleged conduct clearly fell within that definition.

But under the “dual criminality” provision of the 1983 Extradition Treaty Between the United States and Ireland, the Court was required to determine whether the offense with to which Exoo was charged in Ireland would also be punishable under the laws of the United States. That determination was no easy task. After an exhaustive survey of assisted suicide laws of the United States, the Court concluded that extradition was not warranted.

Having utilized as broad a notion as possible of what legally constitutes “aiding” and “causing” in order to conform to the liberality requirements of the Treaty and the law, the Court finds that the laws of the 25 States set forth in the first category incorporate both aiding and causing suicide and therefore include conduct such as Relator [Exoo]’s indirect, secondary participation in Ms. Toole’s suicide. The Court finds that the laws of these States are therefore “substantially analogous”, “relate to the same general offense” and generally criminalize the same conduct which Relator [Exoo] is charged with committing in Ireland. The laws of the 14 States set forth in the second category require more direct and primary involvement in the suicide act and are therefore not “substantially analogous”, do not “relate to the same general offense” and generally do not criminalize the same conduct which Relator [Exoo] is charged with committing in Ireland. Adding together the 14 States in the second category and those States which have no statutes at all making aiding, abetting, assisting and counseling suicide felonious, the Court finds that 25 States do not have laws which are “substantially analogous”, “relate to the same general offense” and generally criminalize the same conduct which relator is charged with committing in Ireland. In the words of the Supreme Court in Factor as discussed above, the Court cannot find that aiding and abetting and counseling suicide as charged in Ireland are “generally recognized as criminal” in the laws of the States. Assuming more narrowly that “aiding” is equivalent to “causing” by providing the physical means to commit suicide as the State Court decisions noted above indicate, the strong majority of the States’ statutes would not be “substantially analogous.” The Court finds that the conduct with which Relator [Exoo] is charged in Ireland is not made felonious under the law of the preponderance of States and concludes that dual criminality therefore does not exist.

Cartoon credit and more on the story at the blog Not Dead Yet, which opposes assisted suicides.

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