The Funeral Law Blog

Mandatory Funerals for Fetal Remains: "Politics and dealing with reality are two different things"

I've written about this topic before, particularly with respect to the Indiana law enacted in 2015 and amended in 2016.  That law gives women who have abortions "the right to determine the final disposition of the aborted fetus."  Ind. Code Section 16-34-3-2(a).  It also requires a woman to fill out a form prescribed by the state indicating her decision regarding "the final disposition of the aborted fetus before the aborted fetus may be discharged from the abortion clinic or the health care facility." Ind. Code Section 16-34-3-2(a).  The law also defines the disposition methods permitted by law for aborted or miscarried fetuses of less than 20 weeks gestation.

Ind. Code Ann. § 16-34-3-4 Cremation or interment of aborted fetus; permit; certificate of stillbirth

(a) An abortion clinic or health care facility having possession of an aborted fetus shall provide for the final disposition of the aborted fetus. The burial transit permit requirements of IC 16-37-3 apply to the final disposition of an aborted fetus, which must be interred or cremated. However:

(1) a person is not required to designate a name for the aborted fetus on the burial transit permit and the space for a name may remain blank; and

(2) any information submitted under this section that may be used to identify the pregnant woman is confidential and must be redacted from any public records maintained under IC 16-37-3.

Aborted fetuses may be cremated by simultaneous cremation.

(b) The local health officer shall issue a permit for the disposition of the aborted fetus to the person in charge of interment for the interment of the aborted fetus. A certificate of stillbirth is not required to be issued for an aborted fetus with a gestational age of less than twenty (20) weeks of age.

(c) IC 23-14-31-26, IC 23-14-55-2, IC 25-15-9-18, and IC 29-2-19-17 concerning the authorization of disposition of human remains apply to this section.

Several reporters have examined Indiana's law in the past few months, putting it into the context of a national movement to change state laws regarding the disposition of human remains and to expand them to include all products of concepts, regardless of gestational age.  Traditionally, states have treated fetuses of greater than 20 weeks gestation as if they had been born alive for purposes of disposition—they receive a special kind of death certificate and are then treated the same as any other human remains.  States have traditionally been silent about the disposition of fetuses of less than 20 weeks gestation.  Two groups have objected to that bifurcation—women who suffered an early miscarriage and wanted to control the disposition of the fetal remains, and pro life groups who believe that life begins at conception and the 20 week gestation line deprived fetal remains of a dignified disposition.

The Walking (Legally) Dead

In 1986 Donald Miller Jr. disappeared from his home in Arcadia Ohio. Eight years later, Donald’s ex-wife Robin Miller requested a judicial declaration that Donald was deceased in order to seek social security benefits for their daughters. Under Ohio law there is a presumption of death when a person has disappeared and been continuously absent from the person’s place of last domicile for a five-year period without being heard from. In 1994, Ohio Probate Court Judge Allan Davis issued an order declaring Donald Miller Jr. legally dead.

In 2013 Judge Davis declared Miller still legally deceased although apparently alive. Miller reappeared in Ohio in 2005 and was informed by his parents that he was dead. Miller has lived with this status until recently when he decided he would like his Social Security card and driver’s license back and requested the court reverse the 1994 ruling. Miller testified that in 1986, he had a drinking problem, lost his job, left to look for work and drifted around for a number of years.

Ohio law allows the probate court to vacate a decree establishing the presumption of death if within three years satisfactory proof is presented that the decedent is in fact alive. Miller missed this time limit and so remains legally deceased.

Being among the walking dead, is not as unusual as one would expect. An average of 38 people a day are mistakenly entered into the Social Security Administration’s Death Master File. This erroneous declaration of death leads to severe hardship; rejected tax returns, closed bank accounts, it is impossible to get a mortgage or government benefits such as Social Security or a driver’s license.

In order to get the erroneous information removed from the Death Master File, the mistaken decedent needs to get a copy of their death certificate from the county clerk and recorder’s office and file for an amended certificate. This amended certificate must be presented to the local Social Security office along with a photo id and the Master File information should be corrected. However, prior to removal, personal information is available to the public, banks, credit bureaus and identity thieves.

Being legally dead may stop the government from issuing benefits or licenses but it is little deterrent for filing of criminal charges. In 2012 federal prosecutors in Louisiana charged Thomas Sanders with murder and stated they would seek the death penalty. Sanders was declared dead in 1994 after disappearing from Mississippi in 1987. Similar to Ohio statute Mississippi makes a presumption of death if any person is absent or conceals himself for seven successive years without being heard from. However, Mississippi does not have a time limit to amend death certificates. There is no indication that Sanders deceased status has created barriers for prosecution and being legally dead is the least of Sanders concerns so it is unlikely that steps to vacate the decree of death will be taken. Absence any effort to return Sanders to the status of living it is likely that Louisiana will execute a dead man. Perhaps it is possible to escape death and taxes but no one can escape prosecution.

Shawn Briggs-Seward

Does the Law Limit What You Can Do with Human Remains? Yes! Understanding Abuse of Corpse Laws

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.

Tanya Marsh

Challenging Ohio's Vague Abuse of Corpse Statute

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.   

Katie McAbee

What Constitutes Abuse of Corpse in Ohio?

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.

Sabrina Huffman

Lost Body, Wrong Corpse

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. 

Katie Ott