ASH Suggests that Smokers Be Held Criminally Liable for Homicide in Secondhand Smoke-Related Deaths

Action on Smoking and Health (ASH) has suggested that individuals who smoke in the presence of others should possibly be charged with criminal homicide if the exposed individuals die from a secondhand-smoke related lung cancer or heart attack.

In a press release issued last week, ASH writes: "As the evidence that secondhand tobacco smoke kills tens of thousands of Americans each year multiplies, the potential for civil - and possibly even criminal - liability for subjecting other people to it grows, says public interest law professor John Banzhaf, Executive Director of Action on Smoking and Health (ASH), America's first antismoking organization."

"He notes that criminal liability has been imposed upon people who, knowing that they have the AIDS virus, nevertheless expose others to it by having sexual intercourse with them, even though the risk that their sexual partner will actually come down with AIDS as the result of such exposure is quite small." ...

"At some point, deliberately and repeatedly subjecting another person to a substance the federal government has ruled to be the most deadly carcinogen to which we are exposed moves beyond mere negligence (the mere lack of sufficient care) and battery (which requires an intent to cause harm) to a depraved indifference to the consequences (the requirement for criminal homicide), says Banzhaf."

"Banzhaf notes, however, that the first criminal prosecutions for a homicide caused by exposure to tobacco smoke are more likely to occur when the smoke triggers a fatal heart attack - which the Centers for Disease Control says can occur within thirty minutes, compared with years for smoke to cause death by fatal lung cancer."

The Rest of the Story

I'm sorry to break the news to ASH but there is no way that exposing others to secondhand smoke could possibly reach the level of criminal homicide except in the highly hypothetical, drastic, and extremely unusual situation that a person continually forced another person to breathe secondhand smoke with full knowledge that the smoke exposure would likely cause that person to die.

One could imagine a highly hypothetical and extreme case where a smoker knew that another individual had asthma which was likely to be exacerbated into a fatal asthma attack by exposure to secondhand smoke and the smoker forced that person to inhale secondhand smoke. A criminal homicide charge could potentially be considered in this extreme situation.

However, outside of that, ASH is completely off base. The reason: because there simply is no negligence.

How can you argue that a reasonably prudent person acting under similar circumstances would not have exposed anyone else to secondhand smoke when it is common practice for smokers to smoke in the presence of other people and it is lawful for smokers to do so?

The risk of a person dying from being exposed to secondhand smoke is exceedingly small. Thus, a reasonable person would not necessarily surmise that his or her tobacco smoke was going to cause death to the exposed individual.

While it could be successfully argued that the reasonable person is aware that secondhand smoke can be harmful to others, I cannot imagine a successful argument that the reasonable person would be aware that exposing a person to secondhand smoke is likely to kill that person.

In order to meet the threshold for involuntary manslaughter (the only criminal homicide charge that could even be considered), it would have to be shown that the smoker exercised not only an unreasonable but also a high degree of risk. There is certainly not a high degree of risk of death inherent in exposing another person to secondhand smoke (with the only exception being the extreme case of a severe asthmatic known to have life-threatening attacks induced by tobacco smoke exposure).

An equally large and dismissive barrier to criminal homicide in secondhand smoke cases is the assumption of risk by those who are being exposed to secondhand smoke. If the exposed individual has consented to the exposure, then there is no liability even if there is negligence. Unless the smoker is forcing the nonsmoker to be exposed, there will be no personal liability.

Since there is no valid legal basis for what ASH is suggesting (and not even a remotely valid one), I can only surmise that there is some other purpose behind this initiative. My guess? It appears to me that ASH just hates smokers and really wants to rub their faces in the dirt as much as it can.