This is not a blog about pop culture (been there, done that), but I have been itching to post about Wicked City since I first saw the first teaser promo in May and now that the promos are in heavy circulation and the premiere date approaches, it is time.
Although we haven't discussed abuse of corpse statutes in Funeral and Cemetery Law yet this semester, this week five students have written posts about the treatment of human remains and analyze whether that constitutes abuse of corpse in various states.
Section 250.10 of the Model Penal Code is entitled "Abuse of Corpse." It provides that "[e]xcept as authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary family sensibilities commits a misdemeanor." About a dozen states follow the Model Penal Code approach, but more states have more detailed statutes. Sometimes, but surprisingly, not always, abuse of corpse statutes specifically reference and prohibit necrophilia.
Brittany Colton discusses the unauthorized removal of the corpse of Julie Mott from a Texas funeral home in August and concludes that the removal violates Texas Penal Code § 42.08(a) which is triggered if a person "carries away, or treats in an offensive manner a human corpse."
Sabrina Huffman examines the discovery of 11 decomposing bodies in a Toledo, Ohio funeral home and the decision to charge the funeral director, Robert Tate, with abuse of corpse under Ohio Revised Code 2927.01. Unlike the Texas statute, Ohio follows the Model Penal Code approach to abuse of corpse, which simply refers to treatment that would "outrage reasonable community sensibilities" or "reasonable family sensibilities."
Katie McAbee discusses the same Ohio statute, this time in the context of an Ohio man who murdered his girlfriend and then stashed her remains in a closet before interring her in a shallow grave. McAbee and Huffman both refer to Ohio court decisions that conclude that the Ohio statute is not unconstitutionally vague, but McAbee questions those holdings and advocates for Ohio to abandon the Model Penal Code approach and adopt a more concrete statute like New Jersey's, which is triggered if a person "unlawfully disturbs, moves, or conceals human remains."
Katie Ott also discusses the Ohio abuse of corpse statute (seriously, what's going on in Ohio??) in the context of a funeral home which misplaced a body and then displayed the wrong set of remains at a viewing. The family has sued and Ott asks whether the funeral home's actions also violate the abuse of corpse statute.
Finally, Shawn Briggs-Seward illustrates how difficult it may be to determine "reasonable" community or family sensibilities as she examines two reported cases involving the cremated remains (cremains) of Keith Richards' father and Tupac Shakur. These cases are particularly interesting because they both death with cremains, not intact human remains. Briggs-Seward asks whether abuse of corpse statutes should apply in such cases.
These five blog posts demonstrate the continuing relevance of the little-known abuse of corpse statutes in American law. They also demonstrate the uncertainty regarding the application and enforcement of these statutes. All of the different formulations of the crime speak to the same idea—human remains should be treated with respect. But states vary significantly in terms of what that means.
In August 2015, the remains of Julie Mott were removed by an unknown person or persons from a Texas funeral home shortly after the funeral concluded. The article notes that “body snatching,” which was more common in the past, is the “technical term for a body stolen from a grave.” It also asserts that bodies are frequently stolen for allografts, as an act of political protest, or for sex. However, “body snatching” is the improper term to describe the situation here because body snatching is “the act or practice of robbing a grave to obtain a cadaver for dissection.” Although it is unknown whether the corpse will be dissected, the body was stolen from a funeral home, not from a grave, so it is technically not considered “body snatching.”
Under Texas law, the individual who removed the corpse from the funeral home without authorization would likely be charged under Texas Penal Code § 42.08(a) "abuse of a corpse." This statute provides that a:
person commits an offense if the person, without legal authority, knowingly: (1) disinters, disturbs, damages, dissects, in whole or in part, carries away, or treats in an offensive manner a human corpse; (2) conceals a human corpse knowing it to be illegally disinterred; (3) sells or buys a human corpse or in any way traffics in a human corpse; (4) transmits or conveys, or procures to be transmitted or conveyed, a human corpse to a place outside the state; or (5) vandalizes, damages, or treats in an offensive manner the space in which a human corpse has been interred or otherwise permanently laid to rest.
Here, the individual who removed the corpse from the funeral home did not have legal authority and knowingly carried away the corpse. Thus, the individual would likely be charged under Texas Penal Code § 42.08(a)(1).
On August 15, 2015, Kyle Starkey beat his girlfriend so brutally that she died at their shared home in Ashtubula, Ohio. With the help of his friend, Ryan McBride, who also witnessed this vicious murder, Starkey stashed his girlfriend’s dead body inside a closet and kept it hidden there for several days. After partying away the weekend, the two men returned to the house, removed the body from the closet, and buried it in a shallow grave nearby. Autopsy reports show the cause of death to be blunt force trauma, and suggest that the body was not buried until August 18, 2015.
In addition to Starkey’s murder indictment, both men were charged with “gross abuse of a corpse,” a felony of the fifth degree under Ohio Law. The statute provides that, “No person, except as authorized by law, shall treat a human corpse in a way that would outrage reasonable community sensibilities.”
One glaring issue with this statute, in my opinion, is that it uses the vague standard of “reasonable community sensibilities” when deciding what types of behaviors sufficiently constitute abuse of a corpse. In fact, in State v. Condon, the defendant argued Ohio’s “abuse of a corpse” statute was impermissibly vague, but the court rejected this argument. The court “reasoned” that:
“Community mores concerning the proper treatment of a corpse are not, in our view, esoteric or otherwise difficult to discern. Irrespective of one's religious views, and even if one is an atheist or an agnostic, it is almost universally understood that the bodies of the dead are to be treated with the utmost respect.”
The court even goes as far as saying, “there is in human beings an ingrained sense that the dead are not to be trifled with.” I would venture to say there are a number of reasonable individuals in the scientific community that would respectfully disagree with the court’s sweeping assertions about humanity and its Euro-centric worldview.
Rather than engage in a philosophical dispute from the bench, Ohio would be better served in adopting a law modeled from the New Jersey Statutes. In New Jersey, any person who “unlawfully disturbs, moves, or conceals human remains” may be charged criminally with “Abuse of a Corpse.” Without a doubt, concealing a dead body in a closet for a few days would fall under the umbrella of this straightforward statute.
In a 2007 interview, Rolling Stones guitarist Keith Richards admitted to mixing his father's cremains with cocaine and snorting them. He told the interviewer, “I snorted my father. He was cremated and I couldn’t resist grinding him up with a little bit of blow. My dad wouldn’t have cared, he didn’t give a shit. It went down pretty well, and I’m still alive.”
After the story was reported, Richards and his publicist claimed the story was taken out of context and was just an illustration to show how close Richards was to his father. However, in his autobiography Richards comes clean saying, ‘The truth of the matter is that after having Dad’s ashes in a black box for six years…I finally planted a sturdy English oak to spread him around. And as I took the lid off of the box, a fine spray of his ashes blew out on to the table. I couldn’t just brush him off so I wiped my finger over it and snorted the residue. Ashes to ashes, father to son. He is now growing oak trees and would love me for it.”
Similarly, members of Tupac Shakur’s band, Outlawz, smoked his ashes to pay tribute to the lyrics in Tupac’s song “Black Jesus.”
When the Ohio Board of Embalmers and Funeral Directors walked into Tate Funeral Service of Toledo, they discovered dryer sheets in the air vents. The dryer sheets were apparently intended to mask the overwhelming smell of decomposing bodies. They didn't work. Further investigations of Tate Funeral Service revealed 11 corpses. These corpses were found in strange places such as the chapel, the garage, and an non-functional embalming room. The cadavers had been decomposing at Tate for periods ranging from a couple of days to a couple of months. Family members were understandably infuriated and filed civil claims. The licenses for Robert Tate and Tate Funeral Service were suspended. Tate has been criminally charged with abuse of corpse.
Robert Tate’s attorney, Derek Farmer, argues that the abuse of corpse charges should be dropped because his client had “no criminal intent." But is criminal intent required? It appears that the answer is no.
Ohio law defines two different crimes. Abuse of a corpse, a misdemeanor of the second degree occurs when a person violates the following: “no person, except as authorized by law, shall treat a human corpse in a way that the person knows would outrage reasonable family sensibilities.” Gross abuse of a corpse, a felony of the fifth degree, occurs when a person violates the following: “no person, except as authorized by law, shall treat a human corpse in a way that the person knows would outrage reasonable community sensibilities.”
Committee Comments to the bill that established the statute explain that:
"This section prohibits treating a human corpse in a way the offender knows would produce righteous and reasonable outrage among members of the family. It covers conduct formerly prohibited by specific prohibitions against grave robbing and unlawful dissection of a corpse. It also includes other kinds of conduct, such as copulating with or otherwise mistreating a corpse. The section does not include conduct authorized by law, such as a mandatory autopsy or the exhumation of a dead body on court order."
It is beyond obvious that the situation at Tate Funeral Service triggered family outrage that objectively seems reasonable and righteous. However, do Robert Tate's actions rise to the level of "gross abuse of corpse"? In State v. Hopfer, the defendant argued that the statute was unconstitutionally vague. The Court of Appeals of Ohio disagreed, holding that "As the court in Glover recognized, the term 'reasonable community sensibilities' is one 'understood by persons of common intelligence,' and a trier of fact could reasonably apply such a standard based upon contemporary community mores." The 11 corpses “chilling” at Tate Funeral Service for weeks seems like it definitely violates community norms.
Robert Tate is likely guilty of abuse of corpse, in addition, he appears to have violated Ohio law regarding the timeliness of cremation. It seems very unlikely that Robert Tate will ever practice funeral service again.
What happens when a cemetery doesn’t appear to provide an appropriate place of rest for the dead or a place for visitation for the living? Do the living have any meaningful recourse? The history of a cemetery in Tennessee seems to suggest not.
Sunset Memorial Gardens of Cleveland, Tennessee, owned by Cecil Lawrence Inc. (“CLI”) of Georgia, has been in a state of disrepair for years. One account describes recent conditions: “swarming gnats, water puddles and warped, bubbled flooring [in mausoleums] . . . . Air freshners [sic] . . . ward off an overwhelming smell of decaying bodies.” Other families complain of missing or broken headstones in the burial grounds.
The conditions are so egregious that Ralph Buckner, Jr., a local funeral director and family member of entombed family members at the cemetery, took out full page ads in a local newspaper asking families to put their grievances in writing with the Tennessee Department of Insurance and Commerce (“ODIC”). As of September 24, 2015, Mr. Buckner had more than 125 complaints to submit to the ODIC; another account states it may be close to 300 complaints.
Despite these and past complaints and actions, conditions at the cemetery appear to only deteriorate. In the past 5 years, CLI has been cited and fined more than $150,000 by ODIC. In 2009, CLI withdrew $340,000 from the Sunset Memorial Gardens improvement trust fund, funds that were deposited in CLI’s general operating account. In August 2015, the Tenth District Attorney General sought to enforce a consent decree that required the company “to hire a mausoleum expert to make recommendations for needed repairs.” CLI has hired a mausoleum expert, but its response has been a letter denying the poor conditions.
As of August 8, 2015, CLI appears have had its business license in Tennessee revoked. For years, family members have complained and the state has brought actions, but nothing appears to help. If the cemetery is not brought into compliance, what else can the living do if following legal procedures are not enough? It seems that CLI is more concerned with its well being than taking care of the dead, and the living are left with not only mourning the dead, but mourning the conditions in which the dead are supposed to rest.
Anastasia E. Fanning
On April 30, 2015 an Oklahoma woman was arrested on felony charges of unauthorized removal of body parts from a body, knowingly concealing or receiving stolen property and first-degree burglary after she was seen slashing the corpse of her boyfriend’s ex-girlfriend during a funeral viewing. Multiple witnesses told officers that they saw the woman reach into the casket during the viewing, and the funeral director testified that the victim’s breasts and toe had been removed.
Not many people would disagree that what the woman has been accused of is morally wrong. Her defense attorney confirmed this by saying that her character has been “assassinated” in the media and the “in court of public opinion.” This should come as no surprise given the amount of respect our society affords to the dead. One example of this is our natural reaction to pull over when we see a funeral procession on the road, and how we allow them to ignore traffic laws such as stopping at red lights. But no matter how morally guilty this woman may be, the unclear question that still remains is whether she can be convicted under an Oklahoma criminal statute.
American case law has long refused to recognized human remains as “property.” Therefore, the prosecution may have trouble convicting the accused of possession of stolen property and burglary. Another problem the prosecution may face is that Oklahoma’s statute on the “Unlawful removal of a dead body-Violation of or damage to casket or burial vault” mainly addresses disinterment, or the removal of a body or body parts from the casket or burial vault after the corpse has been buried. Oklahoma has another statute forbidding the desecration of human remains, but only applies when the desecration is to cover up a crime or criminal investigation.
It goes against our human nature to allow these actions to go unpunished. However, our society’s natural respect for the dead may be what prevented us from contemplating the actions in the first place, and thereby preventing us from expressly legislating against it.
On July 1, 2015 in Columbus, Ohio, a family arrived for the viewing of a deceased relative’s body. But when onlookers peered into Nivina Cargill’s casket, they found a Cargill’s clothes dressing the wrong corpse. Apparently, the Ohio funeral company, Smoot Funeral Services working out of Edwards Funeral Home, misplaced Cargill’s body and then displayed the wrong corpse for the private viewing. Traumatized, Cargill’s sister, Pamela Merrit, explained the family decided to sue for compensatory and punitive damages exceeding $25,000 to ensure this mix up does not happen again with a different family. Specifically, the family alleges abuse of a dead body, breach of contract, unjust enrichment, gross negligence, infliction of emotional distress and fraud.
Regarding abuse of a dead body, Ohio law provides that “No person, except as authorized by law, shall treat a human corpse in a way that the person knows would outrage reasonable family sensibilities.” In State v. Condon, the Ohio Court of Appeals addressed whether this abuse of a dead body occurred when an artist took photos of corpses in a morgue for purposes of an artistic analysis of death. The court held that “disrespectful treatment of the bodies was a sufficient affront to dignity for the jury to determine that there had been abuse of a corpse.” Though Smoot’s actions in Cargill’s case differ from the artist’s decision in Condon (as Smoot misplaced a body and inattentively replaced the missing body with a different body), the disrespectful treatment remains the same. The court in Condon explains, “Every citizen is generally aware of community strictures regarding the treatment of the dead. Such strictures are part of a shared sense of humanity.” This shared understanding within humanity likely includes the disrespect Smoot Funeral Services exhibited upon misplacing a body and preparing an incorrect body for viewing.
All across the country there are abandoned cremains sitting in funeral homes and hospitals. There has been a movement to take abandoned veteran remains and give them the proper military funeral they deserve. One of the largest organization that tracks down abandoned veteran remains is the Missing in America Project (the "Project"). The Project's mission is to locate, identify, and inter unclaimed veteran cremains in order to bury them with the honor and respect they deserve. To date, the Project has found over 12,000 cremains, identifying about 2,700 of those being veteran cremains, and interred over 2,500.
In Nebraska, the only two members of Missing in America Project's Nebraska chapter, estimate that the ashes of hundreds of veterans go unclaimed each year. State law requires funeral homes to keep ashes for 60 days. After the 60 day waiting period and a "reasonable attempt" to contact family and friends, a funeral home can bury the remains, scatter them or throw them out. The members of the Project in Nebraska want to inform funeral homes that there's another option, and that is to hand over the remains to groups like theirs. The hope was that a new law would help convince funeral homes to hand over the unclaimed veterans ashes.
Nebraska passed the law in March which allows funeral homes and crematoriums to work with VA-affiliated groups like the Missing in America Project to identify unclaimed ashes of veterans or spouses, then turn them over if they qualify for interment in a veterans' cemetery. It was not illegal for funeral homes to turn over the unclaimed ashes before, but the new law protects them from liability if a distant family member shows up later.
Bill Henry, one of the members of the Project's Nebraska chapter has said that the new law has not helped convince funeral homes to give him the unclaimed ashes. He says that funeral homes are still holding them and aren't really providing him with reasons why they are doing so. He said some have said they are still reviewing the new law and others have claimed to not have even heard about it. In order to make sure that everyone knows about the law and his organization he has mailed each of the nearly 300 funeral homes in the state and plans to visit each personally as fast as he can. With Henry's persistence hopefully many more veterans will get the dignified military funeral they deserve.