Thursday, June 22, 2017

Choosing Life

One of the most often-repeated talmudic aphorisms notes that “all Israel is responsible for each other,” a noble sentiment, surely, but one that most of us set into a set of larger and smaller concentric circles of obligation: we feel most of all responsible for our closest family members, then for more distant relatives, then for neighbors, then for the other members of the faith- or ethnic group with which we identify the most strongly, then for the other citizens of our country, and then for all humankind. Some of us go one step further too and include the inanimate world as well in the scheme, promoting the conviction that, as part of collective humanity, we have a kind of corporate responsibility not solely for the other residents of our planet, but for the planet itself. Eventually, in some distant age, the circle will probably widen to an even greater extent to allow for feelings of responsibility directed towards the inhabitants of the other populated planets with whom we will eventually learn that we share our galaxy.

None of the above will strike anyone as at all controversial. And even if some specific people might well order their circles differently—feeling more responsible for neighbors than for distant relatives, for example—the concept itself that responsibility for people other than ourselves inheres in our humanness hardly sounds like an even remotely debatable proposition.  But saying wherein that responsibility lies exactly—and how that sense of responsibility should manifest itself in law—is another question entirely.

The system of common law that undergirds American jurisprudence holds that one commits a crime by doing some specific illegal thing, not to failing to do something...and this principle applies even when the thing not done involves coming to the aid of someone in distress. There are, however, several exceptions to the rule. If you yourself are personally responsible for the other party being in distress, then you are in most cases deemed responsible to come to that person’s aid. Parents have an obligation to rescue their children from peril, as do all who act in loco parentis (like the administration of a child’s school or the staff in a child’s summer camp). Spouses have an obligation to rescue each other from peril. Employers have an obligation to come to the aid of workers imperiled in the workplace. In some places, property owners have a similar obligation of responsibility towards people invited onto that property; in others, that obligation extends even to unwanted visitors like trespassers. Otherwise, there is no specific legal obligation to come to the assistance of others. And this is more or less the way American law has evolved as well: other than with respect to the specific exceptions mentioned above and in Vermont, people are generally deemed to have no legal obligation to assist others in distress, much less to risk their own wellbeing to do so. Indeed, although all fifty states, plus the District of Columbia, have so-called Good Samaritan laws on the books that protect individuals who come to the aid of others from subsequent prosecution in the event of mishap, or some version of such laws, Vermont is the sole state to have a law on the books that actually requires citizens to step forward to help when they see others in peril or distress.

These last several weeks, I have been following with great interest the case in Taunton, Massachusetts, that culminated in the conviction of involuntary manslaughter of Michelle Carter, 20, in a case that involved a suicide for which she was not present and which her lawyers argued she therefore could not have prevented, but for which the court deemed her in some sense responsible nonetheless.

The story is a sad one from every angle. It revolves around two troubled teenagers who met while vacationing in Florida and subsequently began an intense twenty-first-century-style relationship that was primarily conducted digitally through emails and text messages. (After returning home to Massachusetts, the two only met in person on a few rare occasions.) But digital though their relationship may primarily have been, it was clearly intense. She was suffering from an eating disorder; he suffered from suicidal tendencies and had actually attempted suicide before, which fact he disclosed to her. At first, she was supportive and encouraged him to seek counseling and not to harm himself. But at a certain point, she became convinced—and we are talking about a teenager here not a mature adult, let alone a trained therapist—she became convinced that suicide was the right solution to her friend Conrad’s problems. And so she encouraged him, as any friend would, to do the right thing. “You can’t think about it,” she texted him on the day of his death. “You have to do it. You said you were gonna do it. Like I don’t get why you aren’t.”

Convinced that she was right, Conrad drove his truck to the secluded end of a K-Mart shopping plaza and prepared to asphyxiate himself with the fumes from his truck’s exhaust. And then we get to the crucial moment, at least in the judge’s opinion. Suddenly afraid and apparently wishing not to die, or at least willing to rethink his commitment to dying, Conrad got out of the truck and phoned his friend Michelle. Her response was as clear as it was definitive: “Get back in,” she told him. And he did, dying soon after that.

Was she responsible for his death? You could say that she did not force his hand in any meaningful way, that she merely told him to do something that he could have then chosen not to do. Or you could say that she had his life in her hands at that specific moment and that she chose to do nothing—not to phone his parents, for example, or 911—and thus was at least in some sense complicit in his death. “The time is right and you’re ready…just do it, babe,” she had texted him earlier in the day. That, in the judge’s opinion, was just talk. But when Conrad’s life was hanging in the balance—when he was standing outside the cab of his truck and talking on the phone as the cab filled with poison gas—and she could have exerted herself to save his life but chose instead to encourage him to get back in—that, the judge ruled, constituted involuntarily manslaughter in the Commonwealth of Massachusetts. And, as a result, Michelle Carter is facing up to twenty years in prison.

Involuntarily manslaughter, defined as behavior manifesting extreme indifference to human life that leads to the death of another, seemed to the judge to suit the details of this case. But what if Michelle truly believed that Conrad would be better off dead, that the dead rest in peace or reside in a state of ongoing bliss in heaven? What if she felt it was his right to die on his own terms and when he wished? What if she felt that he was right in his estimation that he would be better off dead than alive? Should she be held responsible for his death if she felt she truly believed any of the above? As someone who has spoken in public countless times about the dead resting in peace and their souls being resident in paradise beneath the protective wings of God’s enduring presence, there is something deeply unsettling for me personally even to ask that question aloud! Surely, I could answer, the metaphoric lyricism we bring to our efforts to deprive death of its sting aren’t meant to be taken literally, and certainly not to the point at which the taking of an unhappy person’s life feels like a justifiable decision! But what if someone did take them literally and then, not actually acting, chose not to act because of them—should that be considered criminal behavior?

I am neither a lawyer nor a legal scholar, so I won’t offer an opinion about the verdict in the Carter case per se, other than to note that the verdict is controversial and may ultimately be reversed. But the burning question that smolders at the core of the matter—what it ultimately means to be responsible for another—is not something anyone who claims to be a moral person can be at peace being unable to answer. The sense of the interconnectedness of all living things that we reference so blithely in daily discourse can serve as the platform on which all who would enter the discussion may stand. And, surely, the responsibility towards others that develops naturally from our sense of society as a network of closer and more distant relationships is undeniably real. Still, it feels oddly difficult—both morally and apparently legally—to say precisely what it means for one individual to bear responsibility for another.

The most-often repeated commandment in the Torah requires the faithful to be kind to the stranger, to the “other,” to the person who is not yourself…which is all people. Theologically, being solicitous of the wellbeing of others is a way of acknowledging the image of God stamped on all humankind. Whether criminalizing the willful decision to look away from that divine image is a good idea, or a legally sound one, is a decision for jurists, not rabbis. But the notion that all behavior that shows disrespect, disregard, or contempt for others—and thus denies the principle that all human life is of inestimable value regardless of any individual’s circumstances—is inconsonant with the ethical values that should undergird society is something we all can and should affirm. When the Torah commands that the faithful Israelite “choose life” over death, it is specifically commanding that the faithful ever be ready to step into the breach to save a life in peril and thus to affirm our common createdness in God and the responsibility towards each other that derives directly from that belief.

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