Germany - spousal liability for suicide

Question

Trigger warning - suicide. This is a throwaway account, because.

I have a long term illness that is going to kill me in a nasty way - not in the next 5 to 10 years, but eventually.

I live in Germany and I am married to a German. We have laws here requiring you to render assistance. Recently (in the last 5 years) we had a case where people stepped over a 'passed out' homeless person in a bank lobby who died (or was already dead). The court (quite rightly) found them guilty of neglecting their duty of care. They should at least have called the emergency services. This is a basic requirement of law.

My question is about how this law applies to a spouse.

Eventually, when it is my time to go, I do not want to wait out my disease but would rather pick a time and place of my choosing. Under this law, does my spouse live under the same threat? Do I need to hide this from her, or can I let her know of my intent? If she is there and present to the end, does she risk prosecution if she does nothing to stop it?

This is not a question about assisted dying laws in Germany (which I know a bit about), but simply about spousal liability about knowing what is going on.

In the spirit of this stack answers about other jurisdictions are welcome, but only answers about Germany are liable to be selected.

Answer 1

1. There are numerous what-ifs. Society’s moral values and thus laws may change. Or the unlikely death of your wife makes this question moot. (Let’s hope not.)
2. Yes, failure to render assistance is punishable under § 323c Ⅰ StGB. Everyone can commit this crime (Allgemeindelikt). However, this section concerns accidents, contingencies or other unplanned adverse events.
3. In your specific case there is no element of “surprise” though, quite the contrary. Your wife does not even need to be aware of the circumstances; the assessment “is there an accident” is made objectively.
4. Having said that, unfortunately there’s a difference of opinion how courts judge (case law) and how “legal scientists” (at law school) think. Ultimately it depends on what evidence investigators find.
5. Frankly, § 323c Ⅰ StGB is a “minor issue” here. You can get at most “just” a one-year-sentence. And there’s the option to consider one’s own spouse’s death as poena naturalis, thus refrain from imposing any penalty because the grieving widow “won’t learn anything” from that, § 60 1 StGB←§ 153b StPO.
6. I’d worry more about §§ 211 ff. (murder, manslaughter, etc.): To kill someone means, a) any short‑term shortening of lifetime through action, or b) in the case of § 13 StGB, any failure to potentially prolong the lifetime. § 13 StGB, Garantenstellung, also applies to spouses, cf. § 1353 Ⅰ 2 BGB.
   • It could be argued that failure to take, say, a loaded firearm away from you constitutes manslaughter.
   • Or, worse, maybe you’re particularly wealthy and she’ll inherit your assets. This could be construed as greed, an aggravating circumstance.
7. At any rate it’s necessary that the omitted action makes a difference, i. e. prevents or at least inhibits the crime’s success (your death). At some point, with terminally-ill patients, you might say “he’ll die tomorrow anyway”. Then your wife could attend your suicide.
8. Finally, for a legally airtight plan I’d seriously consider to change the jurisdiction though, e. g. by going to Switzerland. Everything happening here is subject to German criminal law, § 3 StGB.

PS: Marriage can be viewed as a kind of contract. In principle you are completely free in formulating its terms. However, you cannot make provisions concerning termination of life (nichtdisponibles Rechtsgut).