We cannot know whether the jury in Gail O’Rorke’s trial acquitted her on charges of assisting another to end her life because the case against her was not proven. Or because it did not feel that a “guilty” verdict and the possibility of punishment – up to 14 years in jail – were appropriate for an act they thought she probably had committed and saw essentially as a conscientious act of kindness and mercy, an act even the prosecuting barrister characterised as “out of loyalty, out of love” for her friend.
That probable exercise of discretion is the jury’s prerogative – though advised against by the prosecution – and in rare cases a jury’s willingness to exercise that discretion, to judge the law itself as well as the specific case, allows it temper unjust law with humanity. It is an important rationale for the jury system itself.
Such a decision in this case would beg important questions about the law, specifically the Criminal Law (Suicide) Act, which in 1993 decriminalised suicide but provided for the offence of aiding or procuring the suicide of another. This is a most unusual provision in criminalising the abetting of a legal act, and is now seriously at odds with public opinion, as Tom Curran, whose late partner Marie Fleming went to the Supreme Court on the issue, argued in these pages yesterday. An Irish Times Ipsos/MRBI poll last month found 54 per cent agree there are circumstances where they would be willing to help a family member die.
That is the question the jury was asked rhetorically during the trial – “What would I do if I were in Gail O’Rorke’s position?” It is akin to the question many parents asked themselves in the wake of the X case “What would I do if my daughter became pregnant?” which set in train a profound national recalibration of public attitudes. And what we saw emerge gradually over recent years was a transition from outright opposition to all abortion, or assisted suicide, in principle, to a sharing of new perspectives on both issues which focus on individual personal tragedy and the necessity for humane responses based on the way people really lead their lives. In the real world the black and white of moral absolutes turn grey.
Public opinion apart, there is also the question of whether a law which juries may refuse to enforce is a good law. No more than a law which forces reluctant prosecutors to pursue upstanding citizens who may have just also suffered grievous personal loss. Our blanket ban on assisted suicide should be reviewed to allow rational, terminally ill people who decide they do not want to suffer on to get help from those close to them, while setting out clear guidelines to protect the vulnerable. It has been done elsewhere successfully and without opening “floodgates” of abuse.
The responsibility to protect others like Gail O’Rorke should not be left to the unpredictable mercy of 12 decent men and women.