Penal Code 401 PC is the California statute that makes it a crime for a person to help or encourage someone to commit suicide. A violation is a felony offense that carries a penalty of up to 3 years in jail.
It is legal, however, in California for a physician to prescribe life-ending medication. This is lawful 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.
- 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.
Some common legal defenses to this charge include the accused showing that:
- the accused did not “deliberately” do anything,
- his/her actions were in accordance with the California End of Life Option Act, and
- a person did not attempt suicide.
The offense is punishable by:
- custody in state prison for up to three years, and/or
- a maximum fine of $10,000.
A judge can award felony (or formal) probation in lieu of jail time.
Our California criminal defense attorneys will highlight the following in this article:
- 1. When is assisted suicide a crime in California?
- 2. How can a defense attorney help in a Penal Code 401 case?
- 3. What are the penalties?
- 4. Are there related offenses?
1. When is assisted suicide a crime in California?
A prosecutor has to prove the following elements to convict a person of assisted suicide:
- a person attempted or committed suicide, and
- 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 in 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, he/she is charged with a California attempt crime – attempting to assist in a suicide.2/p>
Note that questions often arise under this statute on:
- whether suicide itself is a crime,
- mercy killings,
- the End of Life Option Act, and
- 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:
- two or more people agree to kill themselves, and
- there is a single means of death for all parties.
- 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:
- he/she enters a suicide pact, and
- survives while the other members die.3/li>
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.
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.4
Note that the law only authorizes physicians to prescribe these medications to terminally ill Californians. Giving the meds would mean the criminal act of euthanasia.
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.
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:
- the defendant did not act deliberately in aiding or encouraging a person to commit suicide.
- the accused’s acts are protected by the End of Life Option Act.
- the defendant encouraged a person to commit suicide, but he/she made no suicide attempt.
2.1. No deliberate act
PC 401 states that it is a crime for a person to “deliberately”:
- advise, or
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 intent to assist in a suicide. Perhaps, for example, a defendant accidentally caused a person to take his/her own life.
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.
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 his/her life, but
- that person decided against suicide.
3. What are the penalties?
A violation of this statute is a California felony. The crime is punishable by:
- custody in the state prison for up to three years, and/or
- a maximum fine of $10,000.6
A judge may award a defendant with felony (or formal) probation lieu of prison time.
4. Are there related offenses?
There are three crimes related to assisting in a suicide. These are:
- murder – PC 187,
- attempted murder – PC 664/187, and
- 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:
- commit the unlawful killing of a human being or fetus, and
- do so with malice aforethought.
“Malice aforethought” means a killer acted with wanton disregard for human life.
Note, again, that assisting in a suicide is not murder. “Assisting” means providing a person with the means to take his/her 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:
- intends to kill someone,
- takes a “direct step” towards killing that person, but
- the intended victim does not die.
Note that a person will not be charged under this statute if:
- he or she assisted in a suicide, and
- the person did not actually take his/her 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:
- during a sudden quarrel,
- in the heat of passion, or
- based on an honest but unreasonable belief in the need to defend oneself.
Voluntary manslaughter is a lesser included offense to murder. Prosecutors rarely file PC 192 as an original charge.
Rather, the offense usually comes up in murder cases, where:
- the accused admits to killing the victim, but
- seeks to have the charge reduced from murder to manslaughter.
For additional help…
For additional guidance on the assisted suicide law, or to discuss your case with a criminal defense lawyer, we invite you or your loved one to contact us at Shouse Law Group. We create attorney-client relationships throughout the state of California, including Los Angeles, San Diego, Riverside, Orange County, and more.
- California Penal Code section 401 PC.
- In re Ryan N. (2001) 92 Cal.App.4th 1359.
- See, for example, In re: Joseph G. (1983), 34 Cal.3d 429.
- 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.
- People v. Cleaves (1991) 229 Cal.App.3d 367.
- California Penal Code 1170h PC.