Should Photographing Corpses Be Illegal?

Last month, a bill was introduced to the West Virginia State Legislature that would make photographing a corpse a misdemeanor offense "except for certain legitimate purposes." Fines would range from $50 for a first offense and go up to $5,000 and six months in prison for a third violation. The only situations explicitly mentioned in the bill that would be exempt from the law's reach are photos taken in the course of law enforcement investigations, medical examinations, and funeral services.

George Ambler, who authored the proposed legislation, told the Intelligencer that the bill is a response to an incident where EMTs took pictures of the body of an accident victim that they then posted online and sent to the decedent's family. Ambler introduced a similar bill in 2013, which failed to pass a committee vote.

The idea of paramedics sharing such photos of Facebook sounds awful enough, but could what essentially amounts to a blanket ban on corpse photography by regular citizens have drawbacks?

The victim in the case Ambler cites was Jonathan Thomas, a UPS driver who got stung by a bee while on the job. The sting apparently caused him to swerve his truck into a home in Crawley, West Virginia, where he was found dead by emergency responders. According to a local newspaper report on the incident, ambulance driver Angel Willis took photos of Thomas's body with her cell phone, which were "later circulated through the community with Willis' co-workers and others at New River Community and Technical Center." The lawsuit, filed by Thomas's family against Willis and Quinwood Emergency Ambulance Inc., stated: "The offending photographs clearly depicted identifying features of Jonathan Thomas as well as his mortal wounds… They were unsightly, intrusive, and outside the bounds of decency."

That might seem like a strange, isolated incident, but according to Darla Thomas, the mother of the deceased, this was not the first time Willis took photos of dead people. Thomas claimed in the suit that Willis had also previously circulated pictures of a corpse that her husband was transporting from a hospital to a funeral home. As Thomas told the Charleston Gazette, when Delegate Ambler introduced his original bill, "I think people thought, 'Doesn't Charleston have bigger fish to fry?' I think they thought this is some kind of crazy bill and thought, 'Who's taking pictures of dead people?' I don't think they realize this is an issue."

But if it is a worthy topic for public debate, legislation like this raises several questions. For starters, could a law that broadly bans corpse photography even be constitutional? When I asked Nick Little—the legal director for the Center for Inquiry, a nonprofit organization that advocates for freedom of speech—he told me it was "constitutionally problematic," since the bill seeks "to ban people taking photos in places they are allowed to be." He also expressed concern about the lack of explicit mention of media in the text of the bill. (Don Smith, executive director of the West Virginia Press Association, expressed concern to the The Intelligencer about a potentially detrimental effect on local journalism.)

Curt Varone, a practicing attorney with 29 years of experience as a professional firefighter, shares many of Little's concerns about the law's wide scope, but conceded that "the fire service is struggling with [the] issue" of taking photos of dead bodies on the job and posting on social media. According to Varone, it's "a real big problem."

A related high-profile case he mentioned was that of Nikki Catsouras, who died in 2006 in a car crash in California. California Highway Patrol's mishandling of the photos from the scene caused the images to flood the internet and led to years of torment and harassment for the family as they were targeted by trolls who would trick them into opening emails with the pictures of the car crash inside. Ultimately the parents were awarded a $2.4 million settlement, but only after six years had passed and they had spent countless hours trying to remove the images from the internet.

Varone pointed me to "Cathy's Law," a 2012 New Jersey statute that bans first responders from sharing photos or videos of accident victims without their permission. That law was prompted by the case of Cathy Bates, a woman who died in a car accident, a photo of which was posted on Facebook before the family was even notified of her death.

"I know when I was a young firefighter in the 70s, we saw pictures of bodies. But they were 35mm slides or photographs and there was no real mechanism for me to share those with millions—hundreds of millions—of people. The internet, and the fact that we now have digital imagery, has changed that," Varone told me. "Those pictures that only a handful of people would see can now be shared globally. And there's a demand for it, too. And the social recognition when a firefighter or an EMT goes to a high-profile incident and wants to kind of show off that he was there and here's the pictures [they] took to prove it."

I asked Varone if firefighters faced consequences from their employers if they were found to have shared such photos on social media. He explained that current disciplinary measures against firefighters have "been all over" with some being fired or disciplined and no consequences for others.

"A lot of well-intentioned fire chiefs and EMS leaders have sort of turned a blind eye to this problem. And it is a problem," Varone explained. "It is a challenge to try and get a policy that's going to meet the First Amendment and satisfy all the legal requirements." He told me about a situation where he was lecturing on the topic and had a conversation with some firefighters and someone got upset and asked, "Why can't I take pictures? There's a civilian standing two feet away from me, he's taking pictures. And I can't take a picture, and that's not fair."

There are other scenarios left out of the West Virginia bill: professional photographers, for example, who some argue have demonstrated an artistic merit in photographing the dead. VICE published Serbian photographer Aleksandrija Ajdukovic's collection of " Crime Scene Selfies" earlier this month. When I asked her about that work, Ajdukovic said, "The Crime Scene photography collection is as much about death in the media and popular culture as about a predatory nature of photographers and observers. Dead bodies are incorporated in pictures in the Crime Scene collection and it wouldn't be so effective if opposite."

A similar collection is Kimmo Metsäranta's " Photographs of My Grandfather in His Coffin," which was featured on VICE in December. When I reached out to him for this story, he said he specifically wanted to challenge the taboo of not publishing pictures of the dead.

"Everybody dies, your parents die, but you can't show it," he said. "It's like, as soon as someone dies, you just have to get them out of the way, close the casket and take them out the back and put them in the ground. The sooner you get them out of the way, the better. It's a common principle, but I think it's just ridiculous."

When I asked him about the West Virginia bill, though, he said that the idea of an EMT posting an accident victim's picture "sounds absolutely crazy. It's like no moral code."

Still, criminalizing corpse photography may not be enough. Even Varone doesn't think that laws against photographing dead bodies—even under narrow circumstances, as in New Jersey—are the appropriate way to solve what he sees as a cultural problem. Ultimately, he believes this is something that fire and EMS departments need to resolve in-house by "having their internal policies where they need to be to prevent these types of things from happening."

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