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A grave offence: corpse desecration and the criminal law

Published online by Cambridge University Press:  02 January 2018

Imogen Jones
Imogen Jones*
Affiliation:
University of Leeds
*
Imogen Jones, Associate Professor in Law, School of Law, University of Leeds, The Liberty Building, Leeds LS2 9JT, UK. Email: [email protected]
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Abstract

A great many people share the sentiment that it is a serious wrong to behave with gross disrespect towards deceased bodies. It may therefore come as a surprise to learn that, currently, English and Welsh criminal law is incapable of dealing with cases of corpse desecration. Drawing upon provisions found in other jurisdictions, I argue that this legal gap ought to be filled by a new criminal offence. This should turn on the objective wrong of disrespect to the corpse as an important symbol of a once-living person. This framing is important in order to correctly identify what it is that makes desecration rightly criminal, assign accurate labels and to avoid unwarranted over-criminalisation. I conclude by suggesting that only when such an offence is enacted will we be able to ensure that the respect that we deserve in life is reflected in the treatment of our deceased bodies.

Type
Research Article
Information
Legal Studies , Volume 37 , Issue 4 , December 2017 , pp. 599 - 620
Copyright
Copyright © Society of Legal Scholars 2017

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Footnotes

*

With thanks to Muireann Quigley, Iain Brassington, Heather Conway, David Parkinson and the anonymous reviewers for their comments on this paper. I am also grateful to the many colleagues who have helped me to develop the ideas that eventually resulted in this paper. They include Andrew Sanders, Rosie Harding and David Gurnham. Finally, thanks to Stephen White, who assisted me greatly in understanding the bizarre state of the common law. All errors remain my own.

References

1. See L Moss ‘Muslim woman's body found in hospital morgue covered with bacon’ The Independent 18 April 2003, available at http://www.independent.co.uk/news/uk/crime/muslim-womans-body-found-in-hospital-morgue-covered-with-bacon-745706.html (accessed 20 October 2015).

2. ‘Horror at desecration of woman's body’ The Guardian 18 April 2003, available at http://www.theguardian.com/world/2003/apr/18/religion.uk (accessed 20 October 2015).

3. See M Brazier and S McGuinness ‘Respecting the living means respecting the dead too’ (2008) 28(2) Oxford J Legal Stud 297.

4. H Muir ‘Family to sue over hospital desecration’ The Guardian 6 April 2004, available at http://www.theguardian.com/society/2004/apr/06/health.crime (accessed 20 October 2015).

5. Hansard HL Deb, 19 May 2003, col 576.

6. Ibid.

7. ‘Two questioned over desecrated body’ The Guardian 2 June 2003, available at http://www.theguardian.com/society/2003/jun/02/health.crime (accessed 20 October 2015).

8. Simester, A and Von Hirsch, A Crimes, Harms, and Wrongs: On the Principles of Criminalisation (Oxford: Hart Publishing, 2011) p 19 Google Scholar.

9. See Conway, H The Law and the Dead (Oxford: Routledge, 2016)CrossRefGoogle Scholar.

10. Health Protection (Local Authority Powers) Regulations 2010 SI 2010/657 9(6), 10(6), s 3(1); Births and Deaths Registration Act 1953, Registration of Births and Deaths Regulations 1987; and Interpretation Act 1978, s 17(2)(a).

11. See Herring, J ‘Crimes against the dead’, in Brooks-Gordon, B et al. (eds) Death Rites and Rights (Oxford: Hart Publishing, 2007) pp 219–221 Google Scholar. See also S White ‘Drawn and hung - or decently quartered’ The Times 12 August 1997, p 33.

12. See R v Rimmington [2006] 1 AC 459 (HL), especially ‘the requirement of common injury’ at 45.

13. Law Commission Public Nuisance and Outraging Public Decency (Consultation Paper No 193, 2010) para 1.12. A list of the kinds of acts resulting in prosecutions in recent years for causing a public nuisance can be found in Law Commission Simplification of the Criminal Law: Public Nuisance and Outraging Public Decency (Law Com No 358, 2015).

14. There is some debate regarding what the requirement of ‘publicness’ actually entails. In their recent report, the Law Commission suggested that the current legal position is that a nuisance is public if it either (i) affects a class of the public, such as the inhabitants of a neighbourhood or (ii) infringes rights belonging to the neighbourhood, such as those to use the public highway. Ibid, para 2.11.

15. [2007] EWCA Crim 2062.

16. Gibson, Sylveire [1991] 1 All ER 439.

17. Law Commission, Simplification, above n 13, para 4.11.

18. I Jones and M Quigley ‘Preventing lawful and decent burial: resurrecting dead offences’ (2016) 36(2) Legal Stud 354.

19. [2006] EWCA Crim 270.

20. Herring, above n 11, p 220. Similar facts were found in the recent case of Stefano Bizzi. Bizzi stripped the flesh from the dismembered body and attempted to dissolve it in acid. In addition to murder, Bizzi was convicted of obstructing the coroner. See ‘Stefano Bizzi guilty of PC Gordon Semple's Murder’ BBC News 14 November 2016, available at http://www.bbc.co.uk/news/uk-england-37978755 (accessed 19 December 2016). Details of the coronial offence and its overlap with preventing burial can be found in Jones and Quigley, above n 18.

21. G Williams ‘Convictions and fair labelling’ (1983) 42 Camb L J 85.

22. As detailed in the legal aid order for his representation and the schedule on the ‘Certificate to be Sent to the Crown Court for Committal to Trial’.

23. See S White ‘An end to DIY cremation?’ (1993) 33(2) Med Sci & L 151.

24. This argument has also been made by JR Spencer ‘Criminal liability for desecration of a corpse’ (2004) 6 Archbold News 7.

25. Learning from Bristol: The Report of the Public Inquiry into Children's Heart Surgery at the Bristol Royal Infirmary 1984—1995, CM 5207 (1) (2001).

26. The Royal Liverpool Children's Inquiry Report, HC 12-11 (30 January 2001) [Redfern Report], p444.

27. Ibid. See also AV Campbell and M Willis ‘They stole my baby' s soul: narratives of embodiment and loss’ (2005) 31 J Med Ethics 101.

28. Set out in Sch 1 of the Human Tissue Act 2004.

29. Coroner's post-mortems are regulated by the Coroners and Justice Act 2009, Pt 1. There are exceptions in ss 39-40 HTA 2004 for criminal justice purposes and religious relics. Criminal justice purposes are further regulated by s 22 Police and Criminal Evidence Act 1984 and s 23 Criminal Procedure and Investigations Act 1996.

30. D Price ‘The Human Tissue Act 2004’, (2005) 68(5) Mod L Rev 798; K Liddell and A Hall ‘Beyond Bristol and Alder Hey: the future regulation of human tissue’ (2005) 13(2) Med L Rev 170.

31. Simester and Von Hirsch, above n 8, p 23.

32. Ibid, p 21. Feinberg says that wrongs are violations of rights, by which he means moral claims: see J Feinberg ‘The nature and value of rights’, reprinted in Rights, Justice, and the Bounds of Liberty (Princeton, NJ: Princeton University Press, 1980) pp 143-155.

33. J Feinberg The Moral Limits of the Criminal Law, vo 12: Offense to Others (Oxford: Oxford University Press, 1988) p 57.

34. See W Bolier ‘Sperms, spleens and other valuables: the need to recognise property rights in human body parts’ (1995) 23 Hofstra L Rev 693 at 718.

35. For example, in 2006 four men were jailed for intentionally disinterring the corpse of a woman in order to blackmail her family. See ‘Four animal rights activists jailed’ The Guardian 11 May 2006, available at https://www.theguardian.com/uk/2006/may/11/animalwelfare.world (accessed 20 October 2015).

36. Simester and Von Hirsch, above n 8, p 100, argue that the unifying feature of wrongs is that all involve the ‘failure to treat others with due consideration and respect’.

37. Ibid, pp 22-30.

38. Herring, above n 11, p 230.

39. This is particularly evident in the framework for dealing with the disposal of bodies. See H Conway ‘Dead, but not buried: bodies, burial and family conflicts’ (2003) 23 Legal Stud 423; T Muinzer ‘The law of the dead: a critical review of burial law, with a view to its development’ (2014) 34(4) Oxford J Legal Stud 719.

40. It strikes me that this would be best dealt with by altering executors' duties and allowing remedies such as injunctions via tort law.

41. Simester and Von Hirsh, above n 8, p 97.

42. Bland [1993] AC 789, 829.

43. This view is often not shared by a number of indigenous or religious communities: see T Mulgan ‘The place of the dead in liberal political philosophy’ (1999) 7 J Pol Phil 52.

44. Feinberg, above n 33.

45. See D Spirling Posthumous Interests (Cambridge: Cambridge University Press, 2008) pp 15-16.

46. For example, Harris argues that posthumous interests are not ‘person affecting’, meaning that they are neither good nor bad for the person. See J Harris ‘Organ procurement: dead interests, living needs’ (2003) 29(3) J Med Ethics 130. The main point of contention is whether harm needs to be experiential.

47. J Feinberg The Moral Limits of the Criminal Law, vol 1: Harm to Others (Oxford: Oxford University Press, 1987) p 70.

48. J Fischer ‘Harming and benefiting the dead’ (2001) 25(7) Death Stud 557, G Pitcher ‘The misfortunes of the dead’ (1984) 21(2) Am Phil Q 183. For an opposing view, see J Callahan ‘On harming the dead’ (1987) 97(2) Ethics 341. On the view that interests surviving death is incoherent, see E Partridge ‘Posthumous interests and posthumous respect’ (1981) 91 Ethics 243.

49. P Wilkinson ‘Last rights: the ethics of research on the dead’ (1992) J Appl Phil 31.

50. Particularly if ante mortem persons are awarded possessory rights in their corpse. See Price, D The Legal and Ethical Aspects of Organ Transplantation (Cambridge: Cambridge University Press, 2000) ch 3Google Scholar.

51. F Tomasini ‘Is post-mortem harm possible? Understanding death, harm and grief (2009) 23(8) Bioethics 441.

52. D Davies Death, Ritual and Belief (London: Continuum, 2nd edn, 2002); B Romanoff and M Terenzio ‘Rituals and the grieving process’ (1998) 22 Death Stud 697.

53. R v Chan Fook (1994) Cr App R 147, in which it was confirmed that actual bodily harm does not extend to ‘mere emotions such as fear, distress or panic, nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition.’ (per Hobhouse LJ at [152]). The increased use of criminal law to regulate media interactions has coincided with a move towards the criminalisation of acts that cause distress (see Malicious Communications Act 1988, s 1). This is in addition to the Public Order Act 1986, ss 4A, 5. These moves should be resisted.

54. The dangers of invoking a weak concept of harm are highlighted in P Johnson ‘Law, morality and disgust: the regulation of extreme pornography in England and Wales’ (201) 19 Soc & Legal Stud 147 at 154.

55. Feinberg, above n 47, p 46.

56. This is similar to the argument made by Barker regarding cannibalism: see Baker, D The Right Not To Be Criminalised (Oxford: Routledge, 2011) pp 83–84 Google ScholarPubMed.

57. For a discussion of the relationship between shock and PTSD, see Law Commission Liability for Psychiatric Illness (Law Com 249, 1998) pt 3. See also AB v Leeds Teaching Hospital NHS Trust [2004] EWHC 644, where it was found that the retention of children's organs following post-mortem had led to psychiatric harm. There was no remedy available for this in tort as, should it exist, the tort of wrongful interference depends on possessory rights that the parents did not hold.

58. On the setting of general standards, see Gardner, J ‘The wrongness of rape’ in Offences and Defences (Oxford: Oxford University Press, 2007)CrossRefGoogle Scholar ch 1; and D Baker ‘The harm principle vs. Kantian criteria for ensuring fair, principles and just criminalisation’ (2008) 33 Austral J Legal Phil 66.

59. Feinberg, above n 33.

60. A Ellis ‘Offense and the liberal conception of the law’ (1984) 13(1) Phil & Pub Aff 3, at 11-19.

61. A Simester and A Von Hirsch ‘Rethinking the offense principle’ (2008) 8 Legal Theory 269 at 274.

62. Simester and Von Hirsch, above n 8, pp 96-97.

63. Feinberg, above n 33; Simester, and Von Hirsch, above n 8, ch 8.

64. A Von Hirsch ‘Injury and exasperation: an examination of harm to others and offense to others’ (1986) 84(4) Mich L Rev 700 at 708.

65. Simester and Von Hirsch, above n 61, at 292.

66. Feinberg, above n 33, p 33.

67. Simester and Von Hirsch, above n 8, p 129; Von Hirsch, above n 64, at 712; Feinberg, J ‘Profound offense’ in Dworkin, G (ed) Mill's ‘On Liberty’: Critical Essays (Lanham, MD: Rowman & Littlefield, 1997) p 154 Google Scholar.

68. Now decriminalised.

69. Feinberg, above n 33, p 33. Feinberg suggests that this situation could be better dealt with by a civil injunctive order.

70. Simester and Von Hirsch, above n 8, p 129.

71. Devlin, P Enforcement of Morals (Oxford: Oxford University Press, 1959) p 17 Google Scholar.

72. Moore, M Placing Blame: A General Theory of the Criminal Law (Oxford: Oxford University Press, 1997) pp 662–663 Google Scholar.

73. Ibid, 663-665, 647.

74. Stanton-Ife has argued that Simester and Von Hirsch's account could be understood as compatible with a limited version of legal moralism (thus representing the convergence of these once opposing philosophical positions): J Stanton-Ife ‘What is the harm principle for? (2016) 10 Crim L & Phil 329.

75. Thanks to Niki Arame for research and translation.

76. Thanks to Celine Heinz for research and translation.

77. Law Reform Commission of Canada, Procurement and Transfer of Human Tissues and Organs, Working Paper 66, Minister of Supply and Services, Ottawa, 1992, at 109.

78. 2007 NBQB 214, [2007] NBJ No 222.

79. At para 17 (QL) per Judge Rideout.

80. See, eg,Rv Laude [1965] 4CCC264,51 WWR 175 (underold s 167(b), now s 182(b))and R v Suwarak [2001] NUCJ 18.

81. R v Murray 2007 NBQB 214, [2007] NBJ No 222.

82. R v Moyer [1994] 2 RCS 899.

83. R v Beaulieu 2003 Carswell Ont 1681 (Sup Ct J).

84. R v Smart (1997), 203 AR 237, [1997] AJ No 657.

85. R v Gordon, 2007 ABQB 329, [2007] AJ No 551 (QL).

86. R v LaFantaisie, 2004 ABPC 106, [2004] AJ No 691 (QL).

87. R v Purcy (1934) Cr Ap R 40).

88. R v White, 2009 NLTD 99, 2009.

89. Per Carswell Nfld 164 at para 19.

90. S Laville ‘Tetra Pak heir Hans Kristian Rausing admits preventing wife's burial’ The Guardian 1 August 2012, available at https://www.theguardian.com/uk/2012/aug/01/tetra-pakrausing-pleads-guilty (accessed 15 August 2016).

91. This is increased to €75,000 and 5 years’ imprisonment where the acts are motivated by beliefs regarding the corpse's racial, religious, ethnic or national identity (French Criminal Code, Art 225-18).

92. Confirmed in Cass. Crim 3 April 1997 (regarding construction works where bones were inadvertently thrown away) case no 96-82380.

93. See Nancy, 16 March 1967, D 1971, somm. 212.

94. TGI Paris, 16 February 1970, Gaz Pal 1970, II.

95. TGI Arras, 27 October 1998. The corpse was undressed and pictures taken of her genitals. These were published in a specialist Italian magazine: D 1999.511.

96. Article 168.

97. See Groß, D et al. Tod und toter Körper: der Umgang mit dem Tod und der menschlichen Leiche am Beispiel der klinischen Obduktion (Death and the Dead Body: the Dealings with the Dead and the Human Corpse Using the Example of Clinical Autopsy) (Kassel: Kassel University Press, 2007) p 104 Google Scholar.

98. BGH v 24.2.1981 - 1 StR 834/80. This element therefore does not apply to ashes.

99. RG v 13.9.1937 - 5 D 578/37, RGSt 71, 323 f.

100. See Münchener Kommentar zum StGB - 2. Auflage 201, p 15 and OLG Munchen v 14.6.2005 - 2 Ws 455/05 Kl.

101. Ashworth, A and Horder, J Principles of Criminal Law (Oxford: Oxford University Press, 7th edn, 2013) p 74 CrossRefGoogle Scholar.

102. See BGH v 22.4.2005 - 2 StR 310/04, BGHSt 50, 80 (90).

103. BGH v 22. 4. 2005 - 2 StR 310/04, BGHSt 50, 80 (90 f).

104. BGH v 6. 5. 2008 - 5 StR 92/08, NStZ 2008, 569.

105. BGH v 22. 4. 2005 - 2 StR 310/04, BGHSt 50, 80 (90 f).

106. LK/Dippel Rn 55.

107. Stentenbach S. 86 f.

108. ‘Mangels ihres nicht zwingend beschimpfenden Charakters fallen auch nekrophile Handlungen nicht stets unter § 168.’ Schönke/Schröder Strafgesetzbuch - 29. Auflage 2014, 7.

109. Should the body be maintained in this state, however (eg as a consequence of plastination), then the protection of Art 168 is also extended.

110. Scottish Law Commission A Draft Criminal Code for Scotland (2003).

111. Ibid, p 177.

112. HMA v Coutts (1899) 3 Adam 50.

113. Ibid.

114. Case No ICTY-94-1-A.

115. For the purposes of Art 5(i) of the ICTY statute.

116. Ibid, at 278, trial judgment.

117. Case No ICTR-96-14-T.

118. Ibid, at 465.

119. According to Simester and Von Hirsch, above n 61, at 292, the benefit in retaining a separate offence principle lying in identifying the distinct communicative nature of the offence.

120. There are also wide protections offered in other international legal instruments. For example, it is widely acknowledged that it is a war crime under the International Criminal Court Statute, Art 8(2) to commit ‘outrages upon personal dignity’, including that assigned to deceased persons. In the Tadic judgment, the trial court identified this as the appropriate mechanism for dealing with cannibalism, mutilation of and failure to bury the dead. Indeed, Art 16(2) Geneva Convention IV and its additional protocols make multiple reference to the need to ‘respect’ the dead. This is also reflected in the military manuals and national military law of many jurisdictions.

121. For example, the offence of preventing burial should not be used as an easy way to escape mens rea requirements in these cases.

122. See R Ashcroft ‘Making sense of dignity’ (2005) 31 J Med Ethics 679.

123. I am grateful to the anonymous reviewer for this suggestion.

124. [1994] 2 RCS 899.

125. Above n 111, at 177.

126. BGH 5089 - Kannibale von Rotenburg.

127. C Hooton ‘Heavy metal producer's corpse to be mutilated by models as per his dying wish’ The Independent 21 January 2015, available at http://www.independent.co.uk/arts-entertainment/music/news/heavy-metal-producers-corpse-to-be-mutilated-by-models-as-per-his-dying-wish-9992548.html (accessed 20 October 2015).

128. See http://www.bodyworlds.com/en.html (accessed 20 October 2015).

129. Section 3(6)(c) HTA 2004 establishes a hierarchy of ‘qualifying relationships’.

130. HTA Code of Practice 1, ‘Consent’, para 106.

131. HTA Code of Practice 7, ‘Public display’, para 41.

132. HTA, Code 7, para 40.

133. For critical discussion of the role and meaning of consent, see Price, D Human Tissue in Transplantation and Research: A Model Legal and Ethical Donation Framework (Cambridge: Cambridge University Press, 2009)CrossRefGoogle Scholar ch 4; McLean, S Autonomy, Consent and the Law (London: Routledge, 2010)Google Scholar.

134. Equivalent arguments have been made in relation to burial instructions: see Conway, above n 39, at 434.

135. Nuffield Council on Bioethics, 1995, para 6.29.

136. See R v Brown [1994] 1 AC 212. For the view that a person should not be able to consent to acts that undermine their ‘humanity’, see G Dworkin ‘Devlin was right: the law and enforcement of morality’ (1999) 40 Wm & Mary L Rev 927; and D Baker ‘The moral limits of consent as a defense in the criminal law’ (2009) 12(1) New Crim L Rev 93. Advance consent is also not recognised as a defence to otherwise harmful acts done while a person is unconscious - this is particularly problematic in the context of sexual offences; see R v JA [2011] SCC 28 and the discussions in Khan, U Vicarious Kinks: S/M in the Socio-Legal Imaginary (Toronto: University of Toronto Press, 2014) pp 252–270 CrossRefGoogle Scholar; L Gotell ‘Governing heterosexuality through specific consent: interrogating the governmental effects of R v JA’ (2012) 24 Can J Women & L 359.

137. See, eg, A Winkelmann ‘Consent and consensus - ethical perspectives on obtaining bodies for anatomical dissection’ (2016) 29 Clin Anat 70; M Barilan ‘Bodyworlds and the ethics of using human remains: a preliminary discussion’ (2006) 20(5) Bioethics 233.

138. Sections 5, 16 HTA 2004.

139. Above n 16 .

140. J Feinberg The Moral Limits of the Criminal Law, vol 4: Harmless Wrongdoing (Oxford: Oxford University Press, 1988) pp 19-20.