At the heart of the controversy surrounding the court—enforced death of Terri Schiavo is a legal issue that the courts and the media have failed to address. Does a person have a legal right to consent to a crime?  To understand why this is a central issue, a brief review of American common law is in order. 

Under the common law, murder is defined as the taking of a human life by another, with malice aforethought.  Malice aforethought is intent to kill, intent to harm, or reckless disregard for human life.  In Terri's case, her husband removed her feeding tube with the intent of killing her.  This fits the common law definition of murder. Regardless of why he wants to kill her, this is still murder (or possibly manslaughter) because he's intentionally ending her life.  Therefore, short of a legal defense that would excuse this homicide, Michael Schiavo could be convicted of murder under the common law. 

Would a living will wherein Terri consents to having her feeding tube removed provide Michael with a common law defense to murder?  No.  Under common law, a person cannot consent to a crime.  This has been the case because crimes are presumed to be committed against society and not necessarily against a particular person.  That's why when people are released from jail we often say that they had paid their debt to "society." 

This tradition has carried over into modern American jurisprudence in that prosecutors represent the state or the "people," as opposed to an individual victim. Sadomasochists during private consensual sexual acts sometimes injure or even kill one another.  The state has the right to prosecute.  Consent would not be a defense because this would be a crime against the state and not merely against the injured or deceased. 

Moving out of the hypothetical realm and into reality, consider the case of Michigan vs. Kevorkian.  Dr. Kevorkian helped a number of terminally ill people commit suicide.  Even though the court was clearly able to discern the will of the decedents, Dr. Kevorkian was charged and convicted of murder because he intentional took lives with malice aforethought, and the decedents' consent was not a legally cognizable defense. 

If we allow the terminally ill or severely disabled to consent to the ultimate crime, murder, then wouldn't it also be reasonable to allow them to consent to a lesser crime? Suppose that a woman had a living will which stated if she were ever brain dead, she would want her body to be sent to a nearby prison where she could be beaten, raped, and subjected to the wildest desires of the inmates.  Since she would be brain dead and could feel no pain, this would be a final way for her to provide some satisfaction to some of our less fortunate members of society.  Should this utilitarian disposition of a human body be legal?

If consent to a crime were a defense, society would often find itself first trying to figure out who is the victim, then if that victim consented.  For example, assume that the posted speed limit in a school zone is 25 mile per hour and someone is caught driving 35 miles per hour in that zone.  Could that person bring in everyone from within the protected school zone to testify that they consented to this driver driving faster than the posted speed limit?  And if so, would that serve as a defense to absolve the driver of the speeding violation?

Also, would consent be permissible in ways other than verbal or written?  Contemplate a standard domestic violence situation.  A battered woman continually returns to her husband after each beating.  In fact, she covers for him and claims that her injuries were caused by something other than being beaten by her husband.  She reaffirms her love for him and vows to never leave him.  In cases like this, can it legally be said that by her actions this woman has consented to the crime of assault?

These scenarios demonstrate that American jurisprudence should never reach a blanket conclusion allowing private citizens to legally consent to crimes.  To do so would take criminal law enforcement out of the hands of the state and place it in the hands of private citizens, thereby completely eroding equal protection within the criminal law. 

But without permitting individuals to consent to crimes, how does society justify living wills and mercy killings?  It does so by using what are known as 'legal fictions.' Legal fictions are quite common in the law.  For instance, the evidentiary rule prohibiting hearsay essentially states that one person cannot testify about what he heard being said by another person.  However, if the plaintiff repeats words that he heard being spoken by the defendant (or vice versa), this is not considered as hearsay.  Litigators call this exception to the rule an admission by a party—opponent.  Of course based on the black letter definition of hearsay, a party—opponent admission squarely fits within the terms.  So in order to get around this, the law creates a legal fiction by simply stating that an admission by a party—opponent is not hearsay, and seasoned litigators have bought into this fiction.

The same can be said of mercy killings.  Given the common law definition, as well as the statutory definitions of each state, a mercy killing falls squarely within the realm of murder or manslaughter.  But in order to justify this act, the law simply tells society that a mercy killing is not murder and society blindly accepts it, much like litigators accept the fact that a party—opponent admission is not hearsay.

We are now apparently expanding the legal fiction surrounding mercy killings to encompass the deliberate killing of a human being whose life is not threatened by a terminal disease, based on hearsay evidence, also apparently covered by a legal fiction. Call it compound legal fiction homicide.

So what's the harm?  Why not, in this limited circumstance, ignore the common and statutory law and declare this act to be something other than murder?  Because to do so gives the courts the power to disregard the law and expand the lawlessness that is slowly overtaking our country.

If we want to murder the brain—dead, the brain—damaged, the mentally—impaired, or the elderly, the infirm, and unborn children, or people whose 'quality of life' offends our sensibilities, all we need to do is pass a law that states those acts do not constitute murder.  Once the law has been passed, and is reviewed by a Supreme Court finding a previously unobserved penumbra growing on the 'living' Constitution, people will accept it at face value and not challenge the logical inconsistencies found within the newly created statute. Yet, if we continue on this course, we will ultimately reach a point where the judiciary will regularly redefine what is and what is not legal.  Without any legal and moral absolutes, we will continue to devolve into a lawless society where everyone can practically do as they please without any societal penalty.

To all those who believe that a slight change in the law is not harmful, but a sign of progress, reconsider Terri Schiavo's case.  At one point the predominant belief in society was that living wills should only be a viable option when people had absolutely no brain activity and needed machines to pump their hearts and breathe for them.  In cases like that, 'pulling the plug' would result in death immediately.  Now, apparently, we believe that it's acceptable to terminate someone's life even if she's awake, has brain activity, possesses use of all of her vital organs, and with the exception of chewing and swallowing, can even process food. 

Our courts have declared that it's more humane to allow this woman to starve to death over the course of two weeks rather than to allow her to live in her current condition.  In the span of roughly three decades we've fallen from inventing machines that keep vital organs functioning to exterminating living, breathing, possibly thinking human beings.  And the sad part is, without any legal and moral absolutes (like the common law definition of murder) we are going to continue to sink further into lawlessness.

Marc A. Jones is an adjunct professor at Concord University School of Law, where he teaches Evidence and Criminal Procedure.  He also teaches at Kaplan University.