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Yeo, Stanley --- "Right to die" [2003] AltLawJl 19; (2003) 28(2) Alternative Law Journal 89

Right to die

Stanley Yeo[*]

Examining euthanasia: a comparative discussion of criminal responsibility in Japan and Australia.

For many foreigners, the title of this article is apt to conjure up the image of the samurai warrior who dies with honour by committing sepukku, or ritual suicide by disembowelling.[1] Modem day Japan has moved a long way from that image although traditional concepts about the place of individuals within the family and the wider community remain strong. At first glance, these concepts appear to make Japan a poor choice for comparison with Australia on the issue of active[2] euthanasia. A closer examination, however, reveals certain similarities between the two nations which justify studying the way Japan has handled this complex and difficult issue.

One similarity is that both Australia and Japan have adopted Western European models on which to base their criminal laws. The Japanese Penal Code 1907, which is drawn primarily from the German and French criminal codes,[3] makes it a very serious offence to kill a victim who had requested it.[4] The Australian criminal law, both codified and the common law, is to the same effect.[5] Another similarity is that, while both Japan and Australia see themselves as secular nations, many citizens profess personal religious faiths which regard euthanasia as immoral.[6] This mix has resulted in often highly emotive debates in both countries between religious bodies on the one hand, and traditional liberalists and humanists on the other.[7] A third similarity is that the life spans of Japanese and Australians are among the longest in the world, supported in no small way by having the highest standards of health care, medical treatment and technology. While their counterparts in other less developed nations may have died naturally at an earlier age, a sizable number of old and disease-stricken Japanese and Australians find their lives artificially prolonged by drugs and treatment.[8] The demand for euthanasia corresponds with the size of this group in society.

This article argues in favour of decriminalising euthanasia by drawing on the Japanese experience and comparing it with the Northern Territory's Rights of the Terminally Ill Act 1995, which was the first legislation in this country to legalise certain forms of euthanasia.

The Japanese approach to criminal responsibility

To better appreciate the Japanese law on euthanasia, it is necessary to outline that jurisdiction's approach to criminal responsibility.[9] Japanese law determines criminal responsibility through a two-stage appraisal of an accused's conduct. The first stage comprises an evaluative exercise as to whether the conduct was illegal (that is, unlawful) according to the statutory provisions of the Penal Code. The second stage involves a determinative exercise over whether the conduct was culpable (that is, blameworthy). Since both these conditions of illegality and culpability must be satisfied before a person can be convicted and punished, they constitute the essential elements of a crime.

An accused's conduct is identified as illegal if it fits the stereotypical, generalised and abstract description of illegal conduct contained in statutory criminal provisions.[10] This makes the evaluation of illegality largely objective but there are subjective elements in illegality as well. These subjective elements include mental states which have been singled out for standardisation as constituent elements of certain crimes. An example is the crime of homicide, which is defined as conduct accompanied by an intention to kill which causes the death of a person other than the actor.[11] Subjective elements of illegality may also be found in the special circumstances which the criminal law has prescribed as excluding illegality. An example of such special circumstances is the statutorily prescribed 'necessary defence' under Article 36(1) of the Penal Code. The provision states that 'an act unavoidably done to protect the rights of one's self or any other person against imminent and unjust infringement is not punishable'. Should the evidence reveal that the accused had harmed someone to achieve purposes in fact unrelated to forestalling an unjust infringement, her or his conduct is not excluded from illegality.[12] However, where it is determined that the conduct is excluded from illegality, the inquiry into the accused's criminal responsibility is at an end and he or she is acquitted.

Only after an accused's conduct has been evaluated as being illegal will the inquiry shift to the determination of whether such conduct was culpable. This latter inquiry comprises analysing the illegal conduct in terms of the accused's personality in order to decide whether blameworthiness can be attributed to the accused. Consequently, the determination of culpability is primarily subjective in nature although objective matters are also considered. This is because the attribution of blame on the accused cannot be viewed apart from the objective circumstances in which the conduct was performed. In the words of Professor Shigemitsun Dando, a former judge of the Supreme Court of Japan:[13]

Blameworthiness can be judged only in connection with the surroundings in which the act was done and with the personality of the actor which, in turn, must have been formed through interactions of surroundings and predispositions of the actor during the course of his or her life.

Examples of culpability (or a lack thereof) include criminal intent,[14] knowledge of material facts rendering conduct illegal, mistake of fact, mental abnormality [15] and youthful incapacity.[16]

Article 36(2) of the Penal Code stipulates that '[p]unishment for an act which exceeded the limits of defence may be reduced or remitted according to the circumstances.' Accordingly, where the circumstances do not satisfy the requirements of the 'necessary defence' specified in Article 36(1), the Code precludes complete acquittal of an accused person but permits them to plead those circumstances in mitigation at the sentencing stage.

The Japanese law of euthanasia

The starting point for Japanese law in relation to euthanasia is that it is unlawful homicide for a person to kill another intentionally regardless of whether the victim consents or requests it. [17] However, the courts have excluded from illegality such a killing if certain rigorous conditions are met. The fact that no legislation has been introduced to override this judicial legalising of euthanasia shows that it has the support of the Japanese Parliament.

The conditions for legal euthanasia were pronounced in two cases, the first of which took place in the Nagoya High Court[18] and the second in the Yokohama District Court.[19]

Based on these decisions, the conditions for legal euthanasia, all of which must be satisfied, are as follows:

1. a patient must suffer a disease considered fatal on the basis of current medical knowledge and technology, and death must be imminent;

2. the patient must be experiencing unbearable pain;

3. euthanasia must be accomplished principally to terminate that pain, and there are no alternative treatments available to adequately relieve the patient's suffering;

4. the patient must be mentally capable of forming a wish for euthanasia, and does clearly express such a wish;

5. as a general principle, only a physician can carry out euthanasia, although other persons can accomplish it under extraordinary circumstances which make that a reasonable course of action; and

6. the means of accomplishing euthanasia must be ethical.

These conditions may be regarded as specific manifestations of the 'necessary defence' under Article 36(1) of the Penal Code. Conditions 1, 2 and 4 meet the requirement under Article 36(1) of there being an imminent and unjust infringement of the rights of oneself. These individual rights include the fundamental right of protecting or preserving one's human dignity which includes the right to live as well as to die with dignity.[20] Conditions 3, 5 and 6 satisfy the requirement under the Article that the act and method of killing must have been unavoidable in the sense that there were no reasonable alternative means of relieving the pain, from the perspective of clinical experts.[21] The provision in condition 5 of rendering it legal for non-clinical persons to commit euthanasia is very narrowly circumscribed by the conditions of extraordinary circumstances and reasonable course of action.

Should one or more of the six conditions not be met, the act of euthanasia is illegal and the inquiry moves to the culpability stage of criminal responsibility. This is where Article 36(2) operates to deny the accused a full acquittal, permitting only a reduction or remission of their sentence.

The two decided cases are good illustrations of the operation of the conditions for legal euthanasia and the outcome should one or more of the conditions not be satisfied. In the Nagoya High Court case, the father of the accused had been paralysed by an apoplectic stroke and confined to bed for a long period. He suffered considerable pain in his legs and frequent fits of hiccuping and had pleaded with the accused to kill him. An attending physician had informed the accused that his father would die within seven to ten days. The accused administered a fatal dose of poison to his father in the conviction that it was his filial duty to do so. The Court held him guilty of murder because several of the conditions required for lawful euthanasia had not been met, including the fact that the accused was not a physician. However, the Court reduced his sentence to two years suspended imprisonment on account of the extenuating circumstances surrounding his act of euthanasia.

In the Yokohama District Court case, the accused was a doctor who had killed a terminally ill patient by administering a lethal injection at the request of the patient's family. The court ruled that the accused's conduct did not constitute legal euthanasia because two conditions had not been met. Since the patient was in a coma, he was not suffering pain and was unable to express a wish to die at the time when the act of killing occurred. The outcome of the case was that the court convicted the accused of murder but imposed a lenient sentence of two years' suspended imprisonment.

Where the accused was suffering from clinical depression or some other form of mental malfunctioning at the time when they performed euthanasia, Article 39[22] of the Penal Code may be invoked. The courts have interpreted the Article as recognising two types of mental malfunctioning, namely, 'loss of mind' and 'weakness of mind' which differ in degree of impairment and, consequently, in the outcome of criminal proceedings. Thus, it has been held that:[23]

. .. loss of mind indicates circumstances under which mental impairment renders a person incapable of perceiving the right and wrong, the good or evil, of circumstances or of conforming conduct to the results of such distinctions. Weakness of mind does not embody the same high degree of impairment as loss of mind and thus does not eliminate criminal capacity to the same extent.

The more likely claim by persons charged with committing euthanasia is that they were suffering from weakness of mind and therefore seek a reduction in sentence. This is comparable to Australian cases of 'mercy killing' where the defence of diminished responsibility, recognised in certain Australian jurisdictions, has been pleaded.[24] That defence has the effect of reducing a charge of murder to manslaughter where the accused persons were suffering from abnormality of mind which substantially impaired their capacity to judge the rightness of their conduct, to understand events, or to control their actions.

Before leaving the Japanese law, it is useful to observe that the two-stage approach to criminal responsibility of illegality and culpability described in the preceding section, mirrors the dual notions of community protection and individual autonomy which are the hallmarks of the Japanese criminal justice system.[25] Regarding the notion of community protection, the sanctity of human life is a value treasured by society and most certainly deserving of protection through the use of the criminal law. But another value of great importance to the Japanese people·is the dignity of human life. In this connection, they have traditionally considered that death itself should be connected with beauty, and the way a person dies is given much significance.[26] These community values of the sanctity of human life plus human dignity in the face of death largely explain why euthanasia is generally regarded as a serious crime in Japan except in limited circumstances when it is performed under very restrictive conditions. This aspect of community protection is very much a part of the inquiry into whether a person's conduct was illegal for the purposes of criminal responsibility. In relation to the notion of individual autonomy, the individual in Japan possesses a set of values, the importance of which may vary depending on both the character of the individual and the circumstances they are in. Hence, the individual is in a position to choose which values they personally will regard as more or less important than other values in life. The notion of individual autonomy explains the legal requirement that, for an act of euthanasia to be legal, the patient must have been mentally capable of forming a wis)l for euthanasia and clearly expressing such a wish.

Comparing the Japanese law with the Australian legal approach to euthanasia

As in Japan, the intentional killing of another who has requested it amounts to unlawful homicide in Australia.[27]

Unlike in Japan where the courts have been prepared to legalise euthanasia in limited circumstances, their Australian counterparts have yet to do so. The best avenue open to the Australian courts to legalise euthanasia appears to be through the defence of necessity.[28] However, based on strong judicial precedents, it is highly unlikely that our courts will do so because they have traditionally placed the sanctity of human life as the supreme value which the criminal law is duty bound to protect.[29] Therefore, if euthanasia is to be legalised at all, it will have to done by Parliament.

This happened in the Northern Territory with the passing of the Rights of the Terminally Ill Act 1995. Central to the Act was the recognition of an individual's autonomy to decide for themselves issues concerning their own lives as well as deaths. The Act was confined to people suffering from a terminal illness which was causing them severe pain and suffering (s.4). Two medical practitioners had to certify the seriousness of the illness and its painful effects on the person (ss.7(1)(b), (d)). Furthermore, the Act required the person requesting euthanasia to be a mentally competent adult who was able to make a fully informed decision (s.7(1)(h)). To ensure that this condition was met, a psychiatrist had to certify that the person was not suffering from any treatable clinical depression (s.7(1)(c)(iv)). The Act was passed by the Northern Territory legislature only after extensive consultation with the people of the Territory, a substantial majority of whom supported the proposed legislation.[30]

There are many similarities between the conditions for legal euthanasia set out by the Northern Territory legislation and by the Japanese courts. They include the need for the patient to be suffering unbearable pain from a terminal illness which made death imminent; there are no palliative care options reasonably available to alleviate the patient's suffering (s.8); such illness, pain and imminence of death has to be verified by medical personnel; the patient must be mentally capable of requesting euthanasia and has clearly done so; and the means of accomplishing euthanasia must have been ethical (s.7(2)).

As with the Japanese law too, the Northern Territory legislation incorporates the notions of community protection and individual autonomy. Regarding the first notion, society continues to place the sanctity of life on a high pedestal as evinced by the general rule that the taking of the life of another who had requested it constitutes a very serious offence in the Northern Territory.[31] However, the community also regards dying with dignity as an important value and recognises that individuals possess an 'order of priority' of basic values which can vary with the changing circumstances of life.[32] This recognition incorporates the notion of individual autonomy, as did the requirement under the Northern Territory provision that the patient must have freely and voluntarily chosen to be killed.

In spite of the close ascription of the Northern Territory legislation on euthanasia to the notions of community protection and individual autonomy, that law was overridden by the passing of the Euthanasia Laws Act (Cth) in 1997. Originating as a private member's Bill, the comments of many federal parliamentarians debating the Bill clearly showed that they voted in its favour due to their personal faith in Christianity which decries euthanasia.[33]

The same may be said of the views of several members of the Senate Standing Committee on Legal and Constitutional Affairs[34] which was charged with inquiring into and reporting on the Bill.[35] It is highly regrettable that the personal religious beliefs of a select few wielding political power could overturn the view of a sizable majority of the Australian community favouring the legalising of euthanasia in limited circumstances.[36] By voting to override the Northern Territory legislation based on their personal religious faiths, the parliamentarians who did so were imposing their 'order of priority ' of basic values on others who did not share those same ordering of values. The infinitely more democratic course was taken by the Honourable Mr Peter Reith who, despite his personal opinions opposing euthanasia, voted against the Bill because of the strong support given to the Northern Territory legislation by the Australian community.[37]

An issue of choice and tolerance

The very nature of euthanasia is such that the various parties to the debate in Australia will never be able to reach a consensus. A comparison with the Japanese legal approach to euthanasia confirms the strengths of the Northern Territory's Right of the Terminally Ill Act. The comparison also reveals the great significance attached to individual choice in the matter of dying with dignity in the face of unbearable pain and imminent death. This sits well with the liberal democratic traditions of both Japan and Australia which embrace the principle of tolerance, namely, the recognition that others may hold different but equally valid beliefs and values. Professor Peter Baume in his submission to the Senate Standing Committee considering the Euthanasia Laws Bill put the matter cogently when he said that 'voluntary euthanasia is justified because it is a self regarding victimless action arising from an individual decision in a matter which affects individuals alone'.[38]

Our parliamentarians are certainly free to select their personal religious faiths, just as their Japanese counterparts are entitled to choose theirs. Additionally, they may take heart in knowing that many of their fellow Australians subscribe to Christian beliefs and values, just as their Japanese counterparts would be aware of the many fellow citizens who adhere to Buddhist teachings against euthanasia. Yet, all this does not permit parliamentarians to impose their religiously based view concerning euthanasia on others who do not share that view. Ultimately, choice and tolerance are the cornerstones of a truly liberal democratic society, which both Australia and Japan claim to be. As the situation stands, however, the Japanese legislature and judiciary appear to have a greater measure of these qualities, at least in relation to the morally charged issue of euthanasia.

[*] Stanley Yeo is Professor of Law, Southern Cross University and was a Visiting Professor at the International Graduate School of Social Sciences, Yokohama National University from October 2002 to March 2003.


I am grateful to Shannon Breen for some of the insights and references made in this article.

© 2003 Stanley Yeo (text)

© 2003 Stuart Roth (cartoon)

[1] Or more recently, the mass suicides by civilians in Okinawa during the final phases of the Pacific stage of the Second World War.

[2] As opposed to passive euthanasia where medical treatment is withheld so as to result in the hastening of a patient's death. This type of euthanasia has never been criminalised in Japan or in Australia. In the remainder of this article, the term 'euthanasia' is used to denote active euthanasia.

[3] For a concise history of the Code, see Takayanagi, K., 'A Century of Innovation: The Development of Japanese Law, 1868-1961' in H Tanaka (ed), The Japanese Legal System, University of Tokyo Press, 1976, pp.l63-7.

[4] See Article 202 which reads: 'A person who through his instigation or assistance causes another to commit suicide or kills another at his request or with his consent shall be punished ... '

[5] The only major difference between the Japanese and Australian criminal laws is that the Japanese Penal Code has a special criminal provision for euthanasia whereas the Australian codes and common law would classify it as a form of murder.

[6] Buddhism in the case of Japan; and Christianity in relation to Australia. See further Dando, S., The Criminal Law of Japan: The General Part, Rothman & Co, Littleton, Colorado, p.ll0 in note 110, who noted a survey of the official positions of Buddhist bodies conducted by the magazine Gekkan zushoku, which revealed that a large majority of them were opposed to both euthanasia and death with dignity.

[7] For example, the Japan Society for the Right to Die was established in 1976 with the objective of introducing legislation decriminalising euthanasia in which physicians participate. Each Australian state and territory has its own Voluntary Euthanasia Society.

[8] This is not, of course, to exclude younger people who suffer from extremely painful and incurable diseases. The point here is simply that the demographics of the population of Japan and Australia considerably increase the cases of euthanasia.

[9] For a fuller discussion, see Dando, above, ref 6, Chapters 6 and 7; and Yeo, S., 'Learning from the Japanese Approach to Criminal Responsibility', Crim LJ (forthcoming).

[10] Japanese criminal law is statute based and does not possess a common law tradition.

[11] Article 199 of the Penal Code.

[12] See 31 Keishu 747 (S Ct. First P.B. decision, 21 July 1977).

[13] Dando, above, ref 6, pp.l38-9.

[14] Whether 'intent' should be confined to the inquiry into illegality or extended to culpability, is somewhat contentious: see Dando, above, ref 6, p.l50 who argues for such an extension. This controversy is unlikely to be material in practice given that if a court determines that intention is absent, the act will not be illegal and it is unnecessary to proceed to consider culpability in such a case.

[15] Articles 39 and 40 of the Penal Code.

[16] Article 41 of the Penal Code.

[17] Article 202 of the Penal Code, reproduced above, ref 4.

[18] 15 Kosai Keishu 674 (22 December 1962).

[19] Decided on 27 March 1995 and discussed in Kurosu, M., and Ohno, Y., 'Euthanasia in Japan', Proceedings of the International Association of Forensic Sciences, 15th Triennial Meeting, Los Angeles, California, August 1999, p.104. Sec also 'Court lists euthanasia conditions' The Japan Times, 29 March 1995.

[20] The right to life along with other fundamental rights was bestowed on the Japanese people by the Japanese Constitution 1947. Article 13 of the Constitution reads: 'All the people shall be respected as individuals. Their right to life, liberty and the pursuit of happiness shall, to the extent that it docs not interfere with the public welfare, be the supreme consideration in legislation and in other government affairs'.

[21] See Hosaka, T., 'A Cultural Perspective on Euthanasia', (1997) 22 Tokai J Exp Clin Med 279 for an interesting discussion of the common practice of Japanese physicians to conceal from their patients the fact that they have a terminal illness, and the implications of this practice in relation to legal euthanasia.

[22] The Article reads: '(I) An act of an insane person is not punishable. (2) Punishment shall be reduced for acts of weak-minded persons.'

[23] 1 0 Keishu 682 (Gr. Ct. Cass., 3 December 1931 ).

[24] See, for example, s.23A of the Crimes Act 1900 (NSW); s.304A of the Criminal Code 1899 (Qld); and s.37 of the Crimes Code Act 1983 (NT).

[25] See Dando, above, ref 6, Chapter I.

[26] See Williams, N ., The Right to Life m Japan, Routledge, 1997, pp.93-4.

[27] Indeed, such acts would be classified as murder under s.l62 of the Criminal Code Act 1983 (NT) unless the accused was able to successfully plead some partial extenuating circumstance such as diminished responsibility, noted in the main text accompanying ref 24. Another possible charge will be aiding suicide under s.l68 of the Criminal Code Act (NT) which attracts a maximum penalty of life imprisonment.

[28] For common law decisions on the defence, see R v Loughnan [1981] VR443 and R v Rogers (1996) 86 A Crim R542. For examples of Code provisions, sec s.25 of the Criminal Code 1899 (Qld), and s.33 of the Criminal Code Act 1983 (NT). For a detailed and critical evaluation of the defence, see Yeo, S., 'Necessity under the Griffith Code and the Common Law' (1991) 15 Crim LJ 17.

[29] The classic judicial statement to this effect appears in the English case of R v Dudley and Stephens (1884) 14 QBD 273. This was applied by House of Lords in R v Howe [1987] I AC 417 to deny the closely related defence of duress as an answer to a murder charge. Howe has been followed by the New South Wales Supreme Court in R v Bassett (unreported, NSW Sup. Ct., 29 Aprill994). See also the High Court in R v Wilson [1992] HCA 31; (1992) 174 CLR 313 for statements strongly supporting the sanctity of life in relation to the crime of manslaughter.

[30] See Mendelson, D., 'The Northern Territory's Euthanasia Legislation in Historical Perspective', (1995) 3 11 of Law & Medicine 136. According to the Honourable Mr N. Dondas MP in his speech in Parliament on 28 November 1996, submissions received by the Northern Territory legislature totaled 1162 of which 814 were in favour of the Bill.

[31] See above, note 27.

[32] For a philosophical view espousing this concept which does not give paramount value to the sanctity of life, see Finnis, J., Natural Law and Natural Rights, Clarendon Press, Oxford, 1980, pp.85-90.

[33] For example, see the speech of the Honourable Mr Michael Lee MP where he quoted a catechism of the Roman Catholic Church decrying euthanasia: Hansard, 7 November 1996, <> (22 May 2002); Senator Eric Abetz's complaint that the views of Christians were been unfairly stifled in the debate: Hansard, 18 March 1997, <> (22 May 2002).

[34] See the Report of the Senate Committee on Legal and Constitutional Affairs on the Euthanasia Laws Bill, <> (23 June 2002).

[35] For example, see the comments on pp.l27-8 of the Senate Committee's report, above, ref 34.

[36] The Senate Committee's report, above, ref 34, at p.83 noted that public opinion polls and surveys showed over 75% in favour of euthanasia. The strong support for the Rights of the Terminally Ill Bill (NT) by the Northern Territorians was mentioned earlier.

[37] Hansard, 5 December 1996, <> (22 May 2002).

[38] Report of the Committee, above, ref 34, p. 58.

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