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    Penal Code § 401 PC – Assisted Suicide – California Law

    Penal Code 401 PC - When is "assisted suicide" illegal in California?

    In California, under Penal Code § 401 PC, it is a crime to assist or encourage someone to commit suicide. Doing so is a felony punishable by up to 3 years in jail. A judge can award felony (or formal) probation in place of jail time.

    However, it is legal for a physician to prescribe life-ending medication, as per the State’s End of Life Option Act.

    The language of the statute reads as follows:

    401. (a) Any person who deliberately aids, advises, or encourages another to commit suicide is guilty of a felony.

    (b) A person whose actions are compliant with the provisions of the End of Life Option Act (Part 1.85 (commencing with Section 443) of Division 1 of the Health and Safety Code) shall not be prosecuted under this section.

    Examples

    • a wife buying her husband sleeping pills to help a suicide attempt.
    • a son giving an elderly father a lethal injection.
    • a person aiding a friend to kill himself because of cancer.

    Defenses

    Some common legal defenses to this charge include the accused showing that:

    • the accused did not “deliberately” do anything,
    • their actions were in accordance with the California End of Life Option Act, and
    • a person did not attempt suicide.

    Our California criminal defense attorneys will highlight the following in this article:

    man receiving a lethal IV drip as an example of what could be a Penal Code 401 PC violation for aiding a suicide in California

    To abet a healthy people’s or ill people’s suicide is a crime in California

    1. When is assisted suicide a crime in California?

    A prosecutor has to prove the following elements to convict a person of assisted suicide:

    1. a person attempted or committed suicide, and
    2. the accused deliberately aided, advised, or encouraged that person to do so.1

    Example: John is in his seventies and has advanced brain cancer. He learns that he will live for another year, at most. Resigned to being a terminally ill patient, John wishes to die quickly to avoid any potential pain and suffering. He tells this to his wife, Elaine, and she agrees it is the right medical decision.

    At John’s request, Elaine goes to several drugstores and buys a lethal dose of sleeping pills. She stays with her husband as he takes them and ultimately kills himself.

    Here, Elaine is guilty under Penal Code 401 for aiding and encouraging suicide. She agreed with her husband’s suicide decision and she deliberately purchased the sleeping pills for him.

    There are situations in which a person aids another in suicide, but the ultimate attempt fails. When this occurs, the aiding party is not guilty under PC 401. Rather, they are charged with a California attempt crime – attempting to assist in a suicide.2

    Note that questions often arise under this statute on:

    1. whether suicide itself is a crime,
    2. mercy killings,
    3. the End of Life Option Act, and
    4. the difference between assisting someone with suicide and murder.

    1.1. Is suicide itself a crime?

    The act of committing suicide is not a crime in California.

    But there are situations when a person is charged under this statute in a failed suicide attempt. This can happen in terms of a suicide pact.

    A “suicide pact” is when:

    1. two or more people agree to kill themselves, and
    2. there is a single means of death for all parties.

    Examples include:

    • two people deciding to commit suicide by driving a car off a cliff, or
    • three people taking their lives by carbon monoxide poisoning.

    In these situations, a party is guilty of assisted suicide if:

    1. they enter a suicide pact, and
    2. survives while the other members die.3

    1.2. Mercy Killings

    A “mercy killing” is the taking of someone’s life who no longer wishes to live. The act is most often performed by administering large doses of painkilling drugs or sleeping pills.

    The act of committing a mercy killing is a crime in California.

    The act is also known as euthanasia and it is a criminal offense in all 50 states.

    1.3. End of Life Option Act

    The End of Life Option Act is California’s physician-assisted dying law. This law – also called “Death with Dignity”, “Right to Die”, and “Physician-assisted Suicide” – took effect in 2016 after being signed into law by former California Governor Jerry Brown.

    Under the Act, patients that are California residents may request, and physicians may prescribe, life-ending medications. The patient must have less than six months to live from a terminal disease, must be of sound mind, must be a California resident of at least 18 years of age, and must be able to take the drug themselves.4

    Note that the law only authorizes physicians to prescribe these medications to terminally ill Californians.

    Learn more at the California Department of Public Health EOLA site.

    1.4. PC 401 vs. Murder

    Aiding in or encouraging suicide is a different crime than the offense of murder.

    The difference has to do with whether the defendant took an active or passive role in committing the crime.5

    If, for example, the accused merely furnished the means for a person to die, then:

    • this is a passive role, and
    • the defendant is guilty under PC 401.

    If, however, the defendant participated in causing the death of a person, then:

    • this is an active role, and
    • the person is guilty of murder.
    attorney at side bar with judge

    Aiding a suicide carries up to three years behind bars in California.

    2. How can a defense attorney help in a Penal Code 401 case?

    Defense lawyers draw on several legal strategies in attacking charges under these laws. These include showing that:

    1. the defendant did not act deliberately in aiding or encouraging a person to commit suicide.
    2. the defendant’s acts are protected by the End of Life Option Act.
    3. the defendant encouraged a person to commit suicide, but they made no suicide attempt.
    4. the defendant was falsely accused.

    Unless prosecutors can prove all elements of the crime beyond a reasonable doubt, a conviction should not stand.

    2.1. No deliberate act

    PC 401 states that it is a crime for a person to “deliberately”:

    • aid,
    • advise, or
    • encourage

    another to commit suicide.

    “Deliberately” means for a person to specifically intend to do something.

    This means it is a defense for an accused to say that he did not intend to assist in a suicide. Merely talking to someone about suicide or having a general discussion about the different possible methods is not criminal, even if that person was intending to use that information to kill themselves.

    2.2. Act in accordance with the End of Life Option Act

    There are times when health care providers are charged under these laws for:

    • prescribing life-ending medications, and
    • doing so to a patient.

    Note, however, that this is a legal act under the End of Life Option Act. Therefore, an accused can always try to use this law as a defense. Medical records that show the patient met all the criteria should exonerate the physician from criminal liability.

    2.3. No suicide attempt

    Recall that a prosecutor must prove that a person attempted or committed suicide to establish guilt under this act.

    This means it is always a defense for a person to say there was no suicide attempt. Perhaps, for example, the defendant:

    • provided a person with the means to take their life, but
    • that person decided against suicide.

    2.4. False allegations

    It is not uncommon for bereaved family members to accuse current or former friends or therapists of aiding their loved one to die or “triggering” them into committing suicide.

    In these cases, valuable evidence would include text messages, letters, voicemails, eyewitness testimony, or therapist notes to show that the defendant never violated PC 401. When a person confides in another about their suicidal thoughts, the other person is not automatically culpable just because they may have known the person was depressed or planned to commit suicide.

    3. What are the penalties?

    A violation of this statute is a California felony. The crime is punishable by:

    • county jail for 16 months, 2 years, or 3 years, and/or
    • a maximum fine of $10,000.6

    A judge may award a defendant with felony (or formal) probation in lieu of a jail sentence.

    In addition to jail and fines, a conviction also results in a loss of firearm rights, and defendants may not vote while they are incarcerated. Having a conviction also forecloses many employment, housing, and educational opportunities.

    3.1. Can the criminal record be expunged?

    Once two years have passed since the case ended, defendants can petition the court to get the case expunged from their criminal record. The court has discretion over whether to grant the expungement.

    Once a conviction is expunged, prospective employers may no longer discriminate against job applicants because of it. Learn more about California expungement laws.

    4. Are there related offenses?

    There are three crimes related to assisting in a suicide. These are:

    1. murder – PC 187,
    2. attempted murder – PC 664/187, and
    3. voluntary manslaughter – PC 192.

    4.1. Murder – PC 187

    Penal Code 187 PC is the California statute that defines the crime of “murder.” This section makes it a crime for a person to:

    1. commit the unlawful killing of a human being or fetus, and
    2. do so with malice aforethought.

    “Malice aforethought” means a killer acted with wanton disregard for human life. Murder can carry up to life in state prison.

    Note, again, that assisting in a suicide is not murder. “Assisting” means providing a person with the means to take their own life. Murder means actually taking a person’s life.

    4.2. Attempted murder – PC 664/187

    Under Penal Code 664/187, California law defines “attempted murder” as when a person:

    1. intends to kill someone,
    2. takes a “direct step” towards killing that person, but
    3. the intended victim does not die.

    Note that a person will not be charged under this statute if:

    • they assisted in a suicide, and
    • the person did not actually take their own life.

    In this case, the party would be charged with the offense of “attempting to assist in a suicide.”

    4.3. Voluntary manslaughter – PC 192

    Penal Code 192 PC is the California statute that defines the crime of voluntary manslaughter.

    A person commits this crime by killing another human being:

    1. during a sudden quarrel,
    2. in the heat of passion, or
    3. based on an honest but unreasonable belief in the need to defend oneself.

    Voluntary manslaughter is a lesser included offense of murder. Prosecutors rarely file PC 192 as an original charge.

    Rather, the offense usually comes up in murder cases, where:

    1. the accused admits to killing the victim, but
    2. seeks to have the charge reduced from murder to manslaughter.

    5. Resources if you are considering suicide

    Legal References:

    1. California Penal Code section 401 PC.
    2. In re Ryan N. (2001) 92 Cal.App.4th 1359.
    3. See, for example, In re: Joseph G. (California Supreme Court, 1983), 34 Cal.3d 429.
    4. California’s End of Life Option Act. Other states with similar laws include Colorado, District of Columbia, Hawaii, Montana, Maine, New Jersey, New Mexico, Oregon, Vermont, and Washington.
    5. People v. Cleaves (1991) 229 Cal.App.3d 367.
    6. California Penal Code 1170h PC.

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