Several years ago, while doing some reading on European law, I stumbled across a fascinating case that seemed to present questions of autonomy and consent so starkly that it almost seemed made up.
In 2001 and 2002, two German computer scientists became acquainted with each other over the Internet. One man, Armin Meiwes, had long harbored a desire, ever since childhood, to eat someone. He had been raised in a lonely and troubled family and had always craved a brother who would never leave him. This led him to fixate on cannibalism as the one sure way of internalizing that brother who would never, ever depart. But he could not cannibalize just anyone. His victim had to meet certain standards, be talkative, interested in becoming lifelong friends, and willing to give repeated, voluntary consent to making himself a sacrificial offering.
As luck would have it, there was someone out there who satisfied these exacting criteria. Bernd Brandes was an executive at Siemens Corp., but despite considerable professional accomplishments, had long desired annihilation. Ever since childhood, ever since his mother committed suicide when Bernd was 6 or 7, he had desired his own immolation, preferably in a cannibal feast.
After discovering one another on the Internet, they tested each other, made sure their resolve was fixed and certain. Armin had Bernd satisfy a series of requests. He had to sign a "willingness agreement." He had to videotape his consent. He made his will, naming third parties, not Armin, as beneficiaries. This, in other words, was the law professor's dream hypothetical case. It tested, in pure form, the limits of autonomous consent.
I set about investigating the case. As a legal scholar, I am someone strongly committed to having the facts speak for themselves. I believe that exacting historical records need to be developed in order to analyze a case properly. So, I plunged into the case.
I had studied German for a couple of years in graduate school and found myself resuscitating my German-language skills to read accounts of the case available only in German. I even read some of the German legal periodicals, immersing myself in the details of German law on assisted suicide.
It seems, in fact, that Armin and Bernd very nearly committed the perfect crime. Had Bernd committed suicide without Armin's direct assistance – but with the intent of being eaten – this would have been legal. German law criminalizes only active euthanasia, and did not, at least at that time, criminalize cannibalism. At most, Armin would have been convicted of the misdemeanor offense of desecrating a corpse.
The plan called for Bernd to take an overdose of sleeping pills and alcohol. But when Bernd did not die of what should have been a lethal combination, Armin finished the job by stabbing him through the throat. It was this act that allowed the German courts to prosecute and finally to convict him.
Armin defended himself at trial by arguing the morality of his actions. He could not have done wrong, he claimed, because every step he took was done at the explicit consent of his "victim," Bernd. The two men had made sure to videotape all of their actions on the evening they met to carry out their plan, so Armin had proof for his claims. In the end, the German trial court imposed a light sentence (Armin could have been paroled in as little as four years). But the appeals court – in Germany, the prosecution can appeal the length of sentence – mandated a second trial at which a life sentence was imposed.
The final part of my research is an analysis the nature and limits of consent. I focus especially on libertarian commentary on this case, which is extensive. In the end, while I believe the libertarians succeed in advancing some reasonable claims, I find myself rejecting their position.
In purely Christian terms, of course, we find consensual cannibalism troubling for its violation of human dignity. But on secular terms, one could use several neglected aspects of John Stuart Mill's work to argue against such all-encompassing autonomy. Mill, after all, grounded his theory of liberty in a set of background considerations about civilization.
Civilization, to Mill, entailed all of the kindnesses and gentilities of Victorian England. It was a concept Mill contrasted with the "barbarian" Europe of Charlemagne's time. We could not just tuck into one another at meal time. Second, Mill developed a set of substantive norms from a complex of ideas he called the "religion of humanity." Mill stressed altruism, decency and a respect for others as elements of this faith he believed all people of good will could share. Eating one another simply fell outside the boundaries of civilized and ethical conduct.
Under Mill’s construct, not only was Armin properly convicted of the crime, but in the end he received the sentence he deserved.