Thursday, 10 January 2013

The real Kayla Bourque issue...

     23-year-old Kayla Bourque, the alleged 'psychopath' and naturalized Canadian citizen, is out on parole this month.  The dubious legalities surrounding the Bourque case have hinged on the instance of a 'victimless crime.'  For those of you who don't know Bourque's story, she is alleged to have confided to a peer at Burnaby's Simon Fraser University that, among other things, she has murdered family pets by evisceration and hanging, considered killing a drunken roommate at the university, fantasized about murdering homeless people, incited a depressed boy to suicide online, and dreamed of harming people during a home invasion.
    The primary issue in this case, as cited by media consensus, is 'preventative detention,' or whether it's ethical to jail someone for a perceived 'potential' to commit violent crimes.  Sounds like something out of that old Tom Cruise movie, "Minority Report."  Bourque was initially detained under the Mental Health Act, was incarcerated for 18 months on several counts of 'animal cruelty,' and has now been released somewhere in Vancouver.  However, there are 25 conditions surrounding her parole, including due disclosure to all people who she has 'intimate relationships' with of her past.  Harsh, isn't it?
    But, I say that the real issue in the Kayla Bourque case isn't one of preventative detention, because she's killed somebody already.  I'm not talking about the pets, I'm talking about the anonymous boy who she allegedly incited to suicide online.  Precious little information has been leaked to date about this incident; no victim name, or details, etc.  One can't know if this is for want of evidence, or is a token gesture of solicitude towards the family whose boy was senselessly slain.  And that, folks, is where the ambiguity of this case truly lies.
      In recent years, the accepted term in legal discourse for encouraging somebody to kill themselves over the internet is 'lethal advocacy.'  William Melchert-Dinkel, the man who encouraged over a hundred people to kill themselves via a modem and a fake alias, is probably the single most famous example of this.  He was sentenced to 360 days in jail in 2011.  But, it may come as a surprise to readers that, despite Melchert-Dinkel's complicity in the death of Ottawa teen Nadia Kajouji circa 2008, he was never charged under the Canadian assisted suicide law. 
    What is this law?  Well, section 241 (b) of the Charter states the following: 

Every one who ….(b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offence and is liable to imprisonment for a term not exceeding fourteen years.
    Sounds reasonable enough, right?  Unfortunately, this law has conventionally been applied along a very broad scope indeed, ranging from medically-assisted suicide to the Latimer case (a father asphyxiating his severely handicapped daughter) to people euthanising elderly parents.  The big question is whether tacitly encouraging suicide via web modem can be considered a crime.
    To what extent are people responsible for what they say online?  How many times will we see instances of people clutching guns to their heads via webcams while forums of jeering people cheer them on?  What burden of responsibility can we place on 'reasonable' people who have never met their 'victims' before, who are unwilling or unable to discern between a 'joke' and something more serious?
    Digital 'lethal advocacy' has as many forms and types as outright murder.  Methods range from hazing to ignoring pleas for help to ostentatious, emphatic encouragement.  Where does one draw the line?  If a person registered on a website subsequently commits suicide, is it time to round up every IP address with a hit on the site in the last 24 hours and arraign them?  Likely not.  Secondly, what standard of proof is to be used in these cases?  Thirdly, how does one construe the idea of a 'reasonable person' as applied to both the hazer and the hazee?  Is the hazer supposed to intuit beforehand that their interlocutor has a real, vested interest in suicide, and to act accordingly?  Is the victim supposed to be applied to the standard of a 'reasonable person?'
    My answer to these questions is that all remarks blatantly suggesting or insinuating the cumulation of suicide, as interpreted by habeas corpus, should be interpreted as crimes equivalent to that of 'manslaughter.'  I allow for the reality that, while a hazer's aims may have been maleficent in intention, words are not bullets.  There will always be a substantive difference between condoning an act and pulling the trigger. 
    Obviously, the dynamic between lethal advocate and victim will be different in every case, just as much so as that distinguishing murderer from victim.  In some cases, as in the circumstances of Amanda Todd, the persecution can go on for many years.  This sort of case is obviously flagrant for the reason that there is a clear connection in motive between the actions of the hazer and Amanda's subsequent suicide by hanging.  In other cases, it is hurtful comments intended as constructive 'advice,' i.e 'tough love,' which may push an especially sensitive person to the edge and cause them to pull the trigger.  How do we differentiate a 'criminal' in this case from someone who wishes to exercise his/her right to free speech?
     Which, again, defaults back to my initial position of several articles ago.  I miss the days when people were prepared to die for what they said.  This is a circumstance where words can be every bit as dangerous as bullets, where a feckless callousness can mean the difference between life and death.    

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