Laws for governing the treatment of dead bodies are murky at best and contradictory at worst, since it's more of an ethical question whether corpses should be treated like people or property.
On September 2, 2006, 20-year-old twin brothers Alex and Nicholas Grunke and their friend Dustin Radke were apprehended by sheriff's deputies in Grant County, Wisconsin, as they were trying to dig up the body of Laura Tennessen, who had died a week prior from a car accident at the age of 20. Later, their intentions were summarized in a 2008 study in the journal Mortality as follows: "Upon questioning by police, Alexander Grunke explained that the three men wanted to exhume the body so that Nicholas Grunke 'could have sexual intercourse with her.'" Before they arrived at St. Charles cemetery that night, "the men stopped at a nearby Walmart store and purchased condoms 'because Nick wanted to use them when he had sex with the corpse.'"
While the men were charged for damaging cemetery property, a dedicated Wisconsin statute forbidding necrophilia—or attempted necrophilia—did not exist. So instead, prosecutors added the charge of attempted third-degree sexual assault using the provision that the "section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse."
The judge, however, was not convinced and removed the sexual assault charge. According to Dr. John Troyer, who wrote the 2008 case examination and serves as the Deputy Director of the Centre for Death and Society at the University of Bath, the judge was faced with a peculiar dilemma. "Since Laura Tennessen was already dead at the time of the alleged crime and therefore no longer a person before the law, her body was legally recognized as human remains and not as a victim. Had Laura Tennessen died while the crime was being committed, then the attempted sexual assault charges could stand."
Later, the Wisconsin Supreme Court reversed Judge Curry's decision and the men were eventually tried for attempted sexual assault. But the case highlights something important: The status of dead bodies is fairly unique. They have no agency, so it's not really possible to "hurt" them in the same way one would a living person.
On the one hand, there are very practical reasons why classifying the dead as "persons" in a legal sense is problematic. But on the other hand, considering dead bodies "property" isn't a great option either, since that implies a right of full ownership. Opening the door to allowing legal challenges by the necrophiliac "owners" of bodies requesting that their "property rights" be upheld is but one potential rabbit hole that courts and lawmakers have rightfully resisted descending into.
Many states have struggled to come up with reasonable laws regarding the way we treat dead bodies. Just last February, State Senator Lisa Gladden introduced a bill that would make desecrating human remains a misdemeanor in Maryland—something that isn't currently illegal, despite state laws that forbid grave robbing, trafficking in stolen body parts, and destruction of cemetery property. On the other end of the spectrum, Massachusetts passed a regulation that requires embalmers and funeral directors to "abstain from using profane, indecent, or obscene language while acting in a professional capacity," seemingly so as not to offend the corpses.
There's no need to reinvent the wheel, though. Under centuries old English common law, dead bodies were considered " nullius in bonis" (i.e., no one's property) and basically rendered to the church, with ecclesiastical courts resolving any disputes. However, the US never recognized ecclesiastical courts. Sometime around the end of the 19th century the idea of "quasi-property" was articulated, and it applies to this day. In the University of Pennsylvania Law Review, Shyamkrishna Balganesh summarizes it:
Quasi-property thus emerged as the American common law term for the possessory or custodial interest that members of a deceased's family had over the deceased's mortal remains for purposes of disposal. The use of the term, and the development of a liability regime, were motivated by the impetus to protect the "personal feelings" or "sentiment and propriety" of the next of kin in having the corpse buried. Prosser thus described this idea of a property-like right in the body to be a mere "fiction likely to deceive no one but a lawyer." Nonetheless, the fiction had real functional significance, since it enabled relatives to recover damages upon commercial and noncommercial interferences, and located the middle-level principle motivating this right in the idea of possessing the corpse.
The "quasi-property" doctrine described here is quite useful. Some protection from harm does seem sensible—not for the sake of the cadaver, but for the sake of the feelings of family and friends. And there are ways of doing it that are much more legally defensible than Wisconsin's method of applying existing statutes that were passed to protect the living.
The problem is that we live in a society where there are many opinions about what is considered a "dignified" way to treat the dead, and where citizens and lawmakers alike often think it is their place to tell strangers how to behave in this regard—often asking for "protections" where none are appropriate.
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When I put it to human rights lawyer Sarah Kay, her take on it was that popular perceptions of what is and is not OK to do to a corpse are based more on old religious notions than anything else. "Laws referring to necrophilia or mutilation of corpses are laws referring to principles of desecration." Desecration is a moral concept, which basically means that violating a corpse is violating God. "Desecration is tied to morality more than it is tied to sheer legal logic; it is an idea that somehow the respect and honor due to the body while it was alive perseveres in death."
This "I know it when I see it" attitude is often reflected in corpse abuse statutes in other states. Ohio's statute vaguely states 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." Pennsylvania has very similar language. While most people would agree that specific restrictions against necrophilia (like in Nevada, for example) are probably warranted, "reasonable family sensibilities" could mean anything at all and is hard to use as an objective basis for anything really. Embalming, for example—which is allowed and regulated in most places—is a highly invasive process that significantly alters the natural appearance of a decaying body. But the process is socially acceptable in America, and morticians are given exemptions from these statutes in order to provide the service. When I asked Troyer how courts navigate what is and isn't "abuse," he told me it ends up being largely a matter of prosecutorial discretion and circumstances.
Take 91-year-old Jean Stevens, a woman in Wyalusing, Pennsylvania, who had someone dig up the bodies of both her dead husband and her twin sister from their respective graves. The bodies were found propped up inside her home by police. When asked about it by the Associated Press, Stevens said she "hates death and could not bear to have the ones she loved in the ground." The county initially removed the bodies, but a few months later, the coroner worked with Stevens to return them as she built an above-ground vault near her house with cases for sealed see-through bags to place them in. At no point during all this was Stevens charged with a crime, even though prosecutors probably could have exercised that option had they wished.
Not all prosecutors look quite so kindly upon wives that simply don't want to let go of their husbands bodies however. For six months in 2013, Kaling Wald kept her husband's body locked in a spare bedroom of their house in Hamilton, Ontario, due to her belief that praying would cause him to be resurrected. She only told their five children, aged 11 to 22, and their seven adult roommates. The body was only discovered when the house went into foreclosure.
Wald's neighbors didn't share the same affection for her that Jean Stevens's neighbors did, and neither did the authorities, it seems. A judge agreed to prosecute Wald for " neglect of duty regarding a dead body and offering an indignity to a body," a crime which carries a sentence on par with possession of child pornography. Only at the last minute was this charge dropped with a very stern statement from the judge about "public health concerns."
On the one hand, there is a need for laws governing mistreatment of dead bodies—and in some cases these are lacking. On the other hand, society's views on what is and isn't "dignified" burial leads to rules being made that are overly broad can lead to unfortunate outcomes. Together, these forces create the murky and often contradictory legal landscape that exists today. American views on treatment of the dead have come from a traditionally Protestant point of view, in stark contrast to the rich and varied traditions seen all over the world.
As more and more people from different cultures and different backgrounds move to the US—and as more Americans explore additional options themselves—there will likely be more and more cases of people wishing to forego the traditional burial or cremation choice that have been presented to them. How our society and our laws evolve to accommodate is hard to predict—but it will be interesting to observe.
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