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Is Reusing Graves Actually Wrong?

A post on Atlas Obscura focuses on a Kentucky cemeteries “over burial” of bodies.  The post provided a historical background of Eastern Cemetery, located in Louisville, Kentucky, which is one of the oldest cemeteries in the state, noting that it was the site of the first crematory in Louisville and that it was one of the first cemeteries to bury decedents of various races, ethnicities and religious backgrounds in the same area of the cemetery, rather than different sections.  However, the post goes on to state that “Eastern Cemetery has a dark past.”  Other than being a place where lots of dead bodies are buried, what exactly constitutes a dark past for a cemetery?  The post claims that it is over burial and the reuse of cemetery lots for new burials.  The post characterizes this conduct as “mistreatment of graves.”  But is reusing graves actually mistreatment?

Whether reusing graves is actually mistreatment really breaks down into two questions:

  1. Is reusing graves in the manner that Eastern Cemetery did illegal; and
  2. Based on historical practice and our societal notions of morality, is it morally wrong?

First, is this conduct actually illegal?  

The answer is a resounding maybe, depending on the cemetery’s conduct and what it told the people purchasing lots.  Kentucky law does contain an abuse of a corpse statute, which provides that “[a] person is guilty of abuse of a corpse when except as authorized by law he intentionally treats a corpse in a way that would outrage ordinary family sensibilities.” KRS § 525.120(1).  So what exactly are normal family sensibilities?  The term is not defined by statute (although the Kentucky Crime Commission Commentary provides that the term is intended to include “any form of sexual contact, sexual abuse, physical abuse, gross neglect or mutilation”).  So it seems the answer to whether over burial is illegal really depends on the answer to the second question: is over burial or reuse of cemetery plots immoral.

Second, is reuse of cemetery plots immoral?

The answer appears to be: not really.  In Catholic Europe, it was common for Christians to be interred within a church building. This was in keeping with the Christian belief in being buried in consecrated ground while working around restrictions on burials within city limits.  See Tanya D. Marsh & Daniel Gibson, Cemetery Law 69 (2015).  The result of limited space, techniques such as grave recycling were often implemented.  Id.  Additionally, even where burial was used, the individuals buried did not own the plots in which they were buried.  Instead, the consecrated ground was the property of the church, and parish members simply had a right to be buried there (subject to approval by the church).

It was not until the United States was founded, and expressly rejected English ecclesiastical law, that individuals began to be considered to have any right in the plot of land in which they were buried.  It was not until the development of what Jessica Mitford described as “the American way of death” that the idea of a grave being dedicated to one individual in perpetuity became prevalent.  However, even after the American revolution, grave reuse was still practiced in cities where space was an issue.

As the American funeral industry developed, embalming became more common, and cemeteries started to require the use of vaults, the idea of a corpse that would be preserved for as long as possible seemed to become important as well, despite that historical tradition had embraced practices that still allowed decomposition.

So, in light of the history, can reuse of graves really be characterized as “mistreatment” sufficient to give a cemetery a “dark past.”  I would argue no; although in Kentucky it probably depends on the “family sensibilities” of the jurors you happen to draw.

Donald C. Morgan

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