The Funeral Law Blog

"Violence Towards the Helpless": Vandalism & Hate Crimes in Church Cemeteries

Two separate incidents of vandalism in church graveyards in Delaware and Alaska call into question how we as a society protect the resting places of deceased against violence.

In Sitka, Alaska, a third act of vandalism in recent weeks was perpetrated against a 200 year-old Russian Orthodox and Native cemetery in late October. Vandals toppled heavy marble headstones, bringing the total  of severely damaged to ten since the attacks first occurred September 13th, despite efforts by caretakers to increase cemetery security.

Meanwhile in Calyton, Delaware an African-American Episcopal Church was also vandalized over Halloween weekend. Unlike the incident in Alaska however, this vandalism appears to have resulted a far more sinister motive. Headstones and signs at Foreman-Massey Cemetery, operated by the historic Byrd's AAE church, were defaced with vulgarities and swastikas, in addition to physical damage to several grave-markers. Although no suspects have been identified at this time, Delaware police are investigating the vandalism as a hate crime.

Shakira Logan, a congregant at the church, told the Delaware News Journal that they "consider it to be a hate crime being that we are an African American church and there is a swastika and other hateful messages."

This is not the first time the church has been targeted. A year prior, a sign outside of the church proper was defaced with a swastika and "racially charged messages" in permanent marker. The AAE was also the target of Dylann Roofs terroristic mass-murder of nine members of a bible study in Charleston, South Carolina early this year.

In both of these stories, the crimes appear to have provoked a strong backlash from local communities. A police officer in Sitka described the crime as "disheartening" and "so disturbing." There is no doubt that it is especially demoralizing that the attacks have continued despite repeated attempts to respond to the prior incidents and increased security measures, the attacks have continued. 

In Delaware, where the already disturbing crime is combined with the irrational hatred of racism and bigotry, the wounds to the congregation and community are that much deeper. Despite prior acts of vandalism, the attack on the "sacred ground" of the cemetery reaches a new level of malice, according to Bernard H. Williams Sr., head trustee at the church.

Although both Delaware and Alaska have laws criminalizing their desecration, cemeteries are typically unguarded areas and free from the eyes of any causal passerby, particularly at night. This low level of security however is not representative of the significance of cemeteries and graveyards to local communities. The mere fact that desecration is a crime in its own right outside of generally vandalism laws speaks to the importance society places on the protection of the resting places of the dead. When the vandalism is imbued with the corrosive malice of racism, cemetery desecration is not merely an attack on monuments, or even the dead - it is an assault on the community as a whole.

One may ask why cemetery desecration strikes this particular chord in our modern society, which has in many ways moved past a reverence of the past. Bob Sam, the Tinglit caretaker who has watched over the Sitka cemetery for over three decades, can answer that question better than I ever could. 

"I think there's a lot of anger. It's a cemetery, and it's violence toward the helpless."

Steven Verez

#RIP: Attaching digital memorials to graves

Technology and social media platforms have seemed to work their way into all aspects of our lives. But what about cemeteries? Websites like memorylinks.com and qeepr.com provide a very interesting service to customers: pay a one-time fee to receive a QR code that you then attach to a gravestone or other memorial. Scanning the QR code, using a special app for a smartphone or other similar device, links the viewer to webpage that looks something like a social media page for the deceased individual. The webpage can include the deceased’s obituary, pictures, and videos. Some services allow individuals to comment on the page, leaving a condolence to the family or telling how you might’ve known the individual. Other people, aside from just the person setting up the page, can upload their own photos and videos. The service provided by Qeepr even allows you to create a family tree for the deceased individual and invite others to join. Qeepr allows you to customize the material, size, shape, and color of the QR code to coordinate with the headstone, urn, or other public memorial.

The rationale behind Qeepr is fairly straightforward: when you visit a grave, be it of someone you know or someone you don’t, you don’t see much other than their name and the dates of their birth and death. But what about the important stuff – like who they actually were? These services allow someone – a relative or friend who wants to remember the deceased, a complete stranger who happens across the grave, or future generations of the deceased’s descendants – to learn more about the person.

As noted by the Qeepr team, funerary practices in the United States are fairly stagnant. While recent trends across the country show that we’re are moving away from the traditional funeral service and ground burial, many people still choose a funeral and burial practice similar those in the generations before them. For those not comfortable with alternatives to traditional burial, like cremation and green burial, this provides an interesting avenue to do something different. But this creates interesting legal questions regarding the common law right of interment. The right of interment can be described in two phases: the right to inter remains in a grave and the rights after interment. Do the rights extend to the webpage linked to the QR code because the QR code is on the memorial? Does someone not holding the right of interment have the right to attach one of these QR codes to the gravestone? Is it considered grave desecration if the holder of the right does not agree with placement of the QR code on the gravestone? It will be interesting to see what courts would do in the event of a disagreement over attachment of the QR code to the grave or content added to the web page.

Brandy Davis

Struggling to open a Muslim cemetery in Minnesota

Late last year, Al Maghfirah Cemetery Association bought a 73-acre property site in Castle Rock Township, Minnesota for $70,000. The land was intended to expand cemetery space for Minnesota’s Muslim population. However, problems arose when Al Maghfirah Cemetery Association proposed the cemetery plans to the Castle Rock Township board. The proposal was denied. Now, these two sides are in a legal battle.

The Castle Rock Township’s main reason for denial was based on the amount of land and the tax revenue that would be lost (cemeteries are tax free in the township). The township’s board’s job is to ensure the welfare of the township’s residents and having a balancing tax base is one of those duties. The board also believed the three cemeteries in the township were sufficient for the residents. Al Maghfirah Cemetery Association and the Minnesota Muslim population disagree.  

Al Maghfirah Cemetery Association purchased the land to provide generations of Muslims with an exclusive final resting place. There are two other Islamic cemeteries but the land is filling up quickly. The Castle Rock Township cemetery would provide enough space for the next 200 to 300 years. Al Maghfirah Cemetery Association stated they have followed all of the township’s criteria for the cemetery. Al Maghfirah Cemetery Association believes the township board is abusing their power and can not reject the proposal. So does the township board have the right to reject the proposal?

The answer seems to be gray. As any normal city or town, the Castle Rock Township has zoning rules. The proposed cemetery plan was initially allowed. The Castle Rock Township Planning Commission recommended the board to approve the cemetery. The township denied this proposal. The stated main reason was the tax purpose, but also that the cemetery is incompatible with the current and surrounding uses. To make situation worse, the township has now changed the zoning rules in this area, no cemeteries are allowed. The attorneys for the Castle Rock Township board and Al Maghfirah Cemetery presented their motions for summary judgment. The judge has 90 days to make a decision.

Sabrina Huffman

First Muslim Funeral Home in Missouri

The Islamic population in the U.S. is growing; according to a 2011 survey, the number of mosques in the U.S. has grown 74% since 2000. As the Islamic population increases so does the need for Muslim specific services, such as funeral directing and cemeteries. The need is significant in the St. Louis region where an estimated 85,000 Muslims live.

In 2011, Adil Imdad, an environmental and geotechnical engineer who immigrated from Pakistan, enrolled in a St. Louis funeral directing program. Since graduating, Imdad has opened a small Muslim funeral home and has coordinated over 40 funerals.

The cultural gap within the funeral industry is not entirely new. At the end of the Civil War, when the funeral industry was really taking form, the Jewish community began to build their own section. American Jews found logistical problems in relying on the mainstream funeral homes in the preparation and interment process of their dead that were not in line with their ideals.

The Islamic community shares some of these fundamental conflicts with the conventional process. In the Islamic faith embalming and cremation are considered mutilation of the body and are generally forbidden. Body washing and burial preparation are typically performed by the family. Once the body has been washed and wrapped in a white cotton cloth, the deceased is often buried in a wooden casket facing Mecca. Prayers are said at either the mosque or cemetery and are very brief. If possible, burial should take place before sunset on the day of death. These customs often contravene the practices of the typical American funeral home, which are not set up for this type of process.

Imdad, who says his motivation for being in the business is to get “ahead in the heavens,” is now able to assist Muslim families through the funeral process, and at a more reasonable cost than the typical funeral. Muslim families are required to pay between $1,150- 4,500, whereas the average funeral cost in the U.S. is estimated to be in excess of $7,000. As the Islamic population increases it is a certainty that others will follow Imdad and more Muslim specific funeral homes and cemeteries will open.

Shawn Briggs-Seward

Should Funeral Homes Disclose Prices Online?

The Federal Trade Commission has not updated its Funeral Rule regarding price disclosure to consumers since 1994. As a result, all that is required is that funeral homes provide the information via phone or when a customer visits the funeral home. However, this rule does not address the most common way most consumers comparison shop – the Internet.

California requires funeral homes to disclose the same prices the FTC requires them to disclose over the phone or in person on their websites. This will allow consumers to more quickly and easily be able to conduct a price comparison.

The need for online price disclosures is high in this industry. Not only are the people purchasing these services typically very vulnerable due to the highly emotional life event, but this industry has great price variation, even in the same city. The Funeral Consumers Alliance and Consumer Federation of America jointly conducted a survey and found that prices fluctuated as much as 100 to 200 percent for the same services in the same city.

Although it is true in some areas, especially rural less populated communities, there are few providers of these services, it is still important for consumers to be able to have all of the information accessible so they can make a well-informed decision.

The FTC should update its Funeral Rule to conform with the typical price advertising practice that consumers expect. If the FTC’s goal is to protect the vulnerable consumers it is important that its requirements fit with standard consumer practice.  It is very rare that consumers now days will pick up the phone to price shop, especially in this situation where often the need is immediate. As a result, consumers usually simply choose to use the first funeral home they go to or one they have heard of and assume that the prices are comparable to competitors in the area. Since we know this is not true, the FTC should follow California’s lead and create an online price disclosure requirement that would assist consumers in being better informed.

Kaitlin Price

Wisconsin "Hidden Corpse" Case

In Fond du Lac County, Wisconsin, 46-year-old Robert Diamentis has entered a plea deal in a case that involved concealing the corpse of his brother.

Earlier this year, on May 2, Diamentis’ brother was found in a plastic container at their shared residence.  Diamentis’ brother had been ill and bed-ridden, and Diamentis was supposedly serving as his brother’s full time caregiver.  According to court reports, the dead body had been hidden in the house for “several months because [Diamentis] didn’t want people to think he was neglecting his brother.” 

Diamentis was originally charged with “hiding a corpse, obstructing an officer, failing to report a death in unusual circumstances,” and “negligently subjecting an individual at risk to abuse causing death.”  In accordance with his plea agreement, Diamentis pled guilty to the charge of “negligently subjecting an individual at risk to abuse causing death” and his other charges were dismissed by the court.  Prior to entering this plea, Diamentis had been found competent to stand trial.

In Wisconsin, there are specific laws mandating when an individual has an affirmative duty to report the death of another individual.   Wisconsin Statute §979.01 requires that “…persons having knowledge of the death of any person who has died under any of the following circumstances, shall immediately report the death to the sheriff, police chief, or medical examiner or coroner of the county where the death took place…”  Included in the first subsection of this statute are “All deaths in which there are unexplained, unusual or suspicious circumstances.”  A person found in violation of this statute could be fined up to $1,000 or imprisoned up to 90 days.

Despite being originally charged with “hiding a corpse,” the facts in this case remain unclear to whether this charge could have been proved in court.  Wisconsin Statute §940.11 provides that (1) “Whoever mutilates, disfigures or dismembers a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime, is guilty of a Class F felony.”  Alternatively, (2) “Whoever hides or buries a corpse, with intent to conceal a crime or avoid apprehension, prosecution or conviction for a crime … with intent to collect benefits under one of those sections, is guilty of a Class G felony.”  The law makes a distinction between someone “mutilating” a corpse and simply “hiding” a corpse, as was the case here with Diamentis.  It is clear that Diamentis did in fact hide his brother’s corpse to avoid detection, but it is unknown whether he did so with the intent to continue collecting state benefits.  If Diamentis was not collecting benefits on behalf of his brother, the state cannot charge the second offense.  Therefore, the state must make a case that Diamentis did in fact “mutilate” or “disfigure” his brother’s body by concealing it in a plastic container for several months.  Depending on the degree of decomposition, the state may have a viable argument that the brother’s corpse was adequately “disfigured” to pass scrutiny under this statute’s first section.  However, given the clear distinction in the statute’s language between “mutilating” and “hiding” a corpse, and the different felony levels ascribed to each offense, Diamentis should have been charged under §940.11 only if he was collecting benefits on behalf of his brother during the months he concealed his brother’s body.

Katie McAbee

Who pays for the mistake?: What Happens When the Wrong Body Gets Cremated

A recent story on a Boston local news channel reported that the family of a decedent who was cremated by mistake has filed a lawsuit against the funeral home and crematory who picked up and cremated the body for infliction of emotional harm.  The State of Massachusetts has also filed a complaint against the funeral home and crematory.

The mix up occurred when Casper Funeral Home arrived at the medical examiner’s office to pick up the body of Thomas Hickey, who was supposed to be cremated.  Apparently, the funeral home’s employees managed to pick up the body of Frannie Hickey, who was supposed to be buried, instead.  Unfortunately, by the time someone realized a mix up had occurred, Frannie had already been cremated.

But is this really something to sue over?  That depends on who you ask.  Some commenters on the story are appalled that the family is bringing suit, accusing them of seeking to profit from the funeral home’s mistake.  Others are sympathetic, noting that the funeral home’s negligence has adversely impacted the family and the funeral home should not get off the hook.

The actual wrong in this situation appears to be depriving someone of the right to determine the place and method of disposition of the body.  But to provide a cause of action for that right being violated, don’t we have to know whose right it is in the first place?  Is it the decedent who has been deprived of having his or her wishes fulfilled? Or is it the living members of the family?

Massachusetts regulations provide that a funeral establishment should first give effect to the wishes of the deceased as to disposition, which have been expressed in a written document.  Only if there is not such a written document does Massachusetts law appear to permit a decedent’s kin to make a decision about disposition.  So here, it appears that it is the decedent, not really the family members, who is being deprived of a legal right. If the decedent’s rights are being violated, should family members really have a claim for emotional harm when it is not their right that has been violated?  On the other hand, absent a statutory remedy, are they left without any recourse against the funeral home and crematory?

In my opinion, the answer is that we have to let the legislature decide.  State legislatures should work to have a clear statute with a clear remedy in place so families know what sort of claim to bring when mistakes like this happen.

Donald C. Morgan

Indianapolis Cemetery Accused of Deceiving Mentally Ill into Buying Funeral Packages

A recent lawsuit accuses Crown Hill Funeral Home and Cemetery, Indianapolis' third-largest cemetery, of selling pre-need funeral packages to the elderly and mentally ill in a violation of state law.

According to a complaint filed in late September, the cemetery sold a nearly $12,000 funeral services package to 68 year-old Vivian Jackson, who is diagnosed with paranoid schizophrenia and psychosis, while she was staying at a mental health facility. It was only after she left to stay with her daughter, her legal guardian, that it was discovered that Ms. Jackson had been paying nearly $140 a month over the last two years to the cemetery. According to her daughter, Ms. Jackson neither knew of the payments nor expressed any desire to be buried at Crown Hill. 

The class-action lawsuit alleges that the cemetery violated Indiana's Pre-Need Act by directly soliciting patients in mental health and health care facilities for prepaid cemetery and funeral arrangements. Many of these patients suffer from conditions that require a legal guardianship to make financial decisions for them. Although currently only Ms. Jackson is named in the suit, her attorneys believe she is just one of many to be taken advantage of these predatory sales techniques.

“We hope this lawsuit will end these outrageous practices,” said attorney Vess Miller of Cohen & Malad, LLP, the firm representing Ms. Jackson.

While pre-need funeral and burial arrangements serve an important need by allowing one to decide the manner and disposition of their remains, they must be tightly regulated to protect consumers from salespersons who may not have their best interest in hear. Whether or not Ms. Jackson's suit succeeds, this story is a reminder of the importance of consumer protection laws, particularly in the funeral and cemetery industry, where economics and emotion are so closely intertwined.

Steven Verez 

One More Way to Reduce Your Carbon Footprint: Rethinking Disposition After Death

We are constantly being reminded to consider our environmental impact while we are living.  But, what about our environmental impact after death?  How can we “die green?” 

The “American Way of Death” (also the title of a book authored by Jessica Mitford in 1963) is to be buried in a cemetery in a lined wooden or metal casket, which is encased in a concrete vault, with a concrete tombstone marking our resting place.  Some caskets are made of endangered wood, like mahogany and rosewood.  In addition, every year 5.3 million gallons of embalming fluid are buried with the dead in the United States.  Whether it is endangered wood, metal caskets where metals known to have detrimental health effects can leach into the ground, or embalming fluid containing formaldehyde, the environmental impact of this way of death is very real.  

But as more and more people continue to think about their environmental impact, people are starting to want a “green burial.”  According to a January 2015 survey, the demand for green burials has increased 72.4 percent at facilities that offer them.  In response to this demand, the Green Burial Council is trying to make this choice a reality, rather than the inconvenience that it currently is.

How does the Green Burial Council help?  This organization encourages three practices: (1) not embalming, (2) not using metal or non-biodegradable caskets, and (3) not using concrete vaults.  However, some state laws prevent people from choosing these practices.  For example, some states require that families retain services of a licensed funeral director.  Licensed funeral directors are not obligated to offer environmentally friendly options (only 80 cemeteries currently will allow for burials without vaults.  Therefore, making a green burial a reality will require a cultural shift, and work in state legislatures.  However, articles like this one by the Huffington Post, and author Suzanne Kelly’s book Greening Death are possibly the start of this shift.  We will have to wait and see.  

Taylor Ey

Options in Green Burial

Traditional American funerals rituals have three parts, the visitation, funeral, and the burial service. During the visitation, the embalmed, deceased body is placed in a casket and put on display, usually in a viewing room at the funeral home. Next is the funeral, which is a memorial service usually officiated by clergy from the decedent's church or religion. The final step is the burial service, traditionally conducted at the side of the grave, tomb, mausoleum or crematorium. At the close of the burial service the decedent is buried or cremated.

Traditional ground burial involves placing a casket into a grave, usually dug in a cemetery. Most cemeteries set a container, or cement vault in to the earth to hold the casket. The toll both funerals and cremations take on the environment each year is shocking, including the use of 30 million board feet of casket wood, 90,000 tons of steel, 1.6 million tons of concrete for burial vaults, and 800,000 gallons of embalming fluid. But there is another option. Green burial is an increasingly used alternative that is simple and natural. Green burial involves the interment of bodies in bio-degradable caskets, shrouds, or a personal cloth. There is no embalming and no concrete vaults.

The first "green cemetery," Ramsey Creek Preserve, was opened in the United States in 1998. Ramsey Creek was opened by Memorial Ecosystems Inc., which is a company focused on the development of multi-functional memorial nature preserves that protect and restore land and provide a less expensive and more meaningful burial option.  Ramsey Creek Preserve was the Green Burial Council's first Certified Conservation Burial Ground in the U.S. The Preserve is protected by a protection agreement crafted to ensure that the Preserve will be conserved and "forever wild." 

The Green Burial Council has three types of certifications for cemeteries to be considered a green burial site (the standards for each are set forth in this table). The lowest level is certification for traditional cemeteries that offer the option for burial without the need for a vault or embalming and they must allow the use of eco-friendly burial containers including shrouds. The other two certifications must prohibit the use of vaults and embalming and must ban the use of burial containers that are not made from natural or plant derived materials. The last certification additionally requires environmental conservation. 

Passages is a producer of eco-friendly burial containers. They sell eco-friendly caskets and water and earth biodegradable urns. The website makes clear that every person has different standards for what they feel is a natural or green funeral and that the company seeks to provide options for all the varying needs. Eco-friendly caskets are marketed to be used for traditional or green burials. Passages says that each casket is suitable for viewing and services, followed by burial or cremation. The eco-friendly nature of using a green burial container and then placing it in a vault or crematorium, is quite antithetical to the notion of environmentally friendly burial. 

Green burial is a valid alternative to traditional American burial, that provides people with a cheaper, environmentally friendly option. The Green Burial Council has approved more than 340 green burial providers (both funeral homes, cemeteries, and product providers) in the U.S. and Canada. The Green Burial Council website provides a list of approved providers.

Emily Morris