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Let's say a friend and I are stranded somewhere, starving, and confident rescue will not come until we both have starved. Realizing that it makes more sense for one to live than both of us to starve, we draw straws, and I draw poorly. I gave my friend permission to both kill me and eat my body to survive.

I've agreed to this plan; perhaps we even record me on video giving him permission, saying I'm of sane mind, saying why I made the decision, etc.

My friend gets home afterwards and tells everyone how great I tasted. For some reason, people get upset and call the police.

My questions are:

  • Is my friend guilty of a crime?
  • Has my permission, and the necessity of the situation, made his actions legal?
FD_bfa
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dsollen
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3 Answers3

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In Germany this is a solved matter:

  • Killing on request is illegal.
  • Killing someone to consume them can be Mord.
  • Eating human remains is illegal, even with consent of the dead.

Why do we know this? Because Armin Meiwes did exactly that: he was involved in killing Bernd-Jürgen Armando Brandes, who wanted to die, and ate the remains of him. He currently is incarcerated for life due to the conviction of Mord. This is because he was found to have killed for his own sexual gratification - one of the factors that can turn an unlawful killing/Totschlag (§ 212 StGB) (~manslaughter) into Mord (§ 211 StGB) (~murder 1st degree) under german law.

Consuming the remains of a human body is, as the courts found, Störung der Totenruhe under § 168 StgB (disturbing the rest of human remains). It is not possible to consent to being eaten, as you can not give your body to anything but research or medical education legally and you have to be buried in a designated graveyard.

Trish
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4

If your friend has not guilty of an offence, it is not because of consent. Consent is vitiated when the accused intends and causes serious bodily harm to the other (R. v. Paice, 2005 SCC 22 at para. 18).

However, the defence of necessity may be available, although the Supreme Court has never directly decided this issue. See R. v. Latimer, 2001 SCC 1 at para. 40 (also surveying the law in other jurisdictions):

The third requirement for the necessity defence is proportionality; it requires the trial judge to consider, as a question of law rather than fact, whether the harm avoided was proportionate to the harm inflicted. It is difficult, at the conceptual level, to imagine a circumstance in which the proportionality requirement could be met for a homicide. We leave open, if and until it arises, the question of whether the proportionality requirement could be met in a homicide situation. In England, the defence of necessity is probably not available for homicide: R. v. Howe, [1987] 1 A.C. 417 (H.L.), at pp. 453 and 429; J. Smith, Smith & Hogan: Criminal Law (9th ed. 1999), at pp. 249-51. The famous case of R. v. Dudley and Stephens (1884), 14 Q.B.D. 273, involving cannibalism on the high seas, is often cited as establishing the unavailability of the defence of necessity for homicide, although the case is not conclusive: see R. Card, Card Cross and Jones: Criminal Law (12th ed. 1992), at p. 532; Smith & Hogan: Criminal Law, supra, at pp. 249 and 251. The Law Reform Commission of Canada has suggested the defence should not be available for a person who intentionally kills or seriously harms another person: Report on Recodifying Criminal Law (1987), at p. 36. American jurisdictions are divided on this question, with a number of them denying the necessity defence for murder: P. H. Robinson, Criminal Law Defenses (1984), vol. 2, at pp. 63-65; see also United States v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa. 1842) (No. 15,383). The American Model Penal Code proposes that the defence of necessity would be available for homicide: American Law Institute, Model Penal Code and Commentaries (1985), Part I, vol. 2, at § 3.02, pp. 14-15; see also W. R. LaFave and A. W. Scott, Jr., Substantive Criminal Law (1986), vol. 1, at p. 634.

Jen
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3

I will deal with the issues of necessity and permission separately.

Necessity is not a defence to murder

The courts have consistently rejected killing an innocent person as justifiable to save others. In the case of R v Dudley and Stephens [1884], after three weeks stranded at sea, Dudley and Stephens killed and ate the cabin boy. The defence of necessity failed, and both were found guilty of murder.

The issue of necessity has been considered many times since this case. In nearly 150 years, medical necessity is the only established exception to the above (see: Re A (Conjoined Twins) [2000]]). Your example is not captured by this exception.

Permission does not change this

A person cannot lawfully consent to another person causing them serious injury (R v Brown [1994]). This encompasses consenting to being killed.

This principle can be seen in the examples of euthanasia and assisted suicide, which both remain illegal. In Pretty v DPP [2002], the courts reiterated that an individual cannot waive their right to life. In your example, your attempt to give your friend permission to kill and eat you is an attempt to waive this right. As a result, the courts will not recognise your permission as a defence for your friend's actions.

FD_bfa
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