Fwd: Slate Politics: Habeas Corpses
Grlygrl201@aol.com
Grlygrl201@aol.com
Fri, 15 Mar 2002 18:16:42 EST
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oh just read it.
(btw, beluga sturgeon are almost extinct.)
friday gigi
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From: "Slate Magazine" <SlateMagazine_037378@msnnewsletters.customer-email.com>
To: <grlygrl201@aol.com>
Subject: Slate Politics: Habeas Corpses
Date: Fri, 15 Mar 2002 06:37:22 -0800
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jurisprudence
Habeas Corpses
What are the rights of dead people?
By Dahlia Lithwick
Posted Thursday, March 14, 2002, at 2:45 PM PT
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A French court ruled this week that the refrigerated bodies of a married cou=
ple must be removed from basement storage in their ch=E2teau and buried prop=
erly. Against the couple's final wishes, and over the strenuous legal object=
ions of their son, the court held that Raymond Martinot=97who died last mont=
h at age 80=97and his wife, Monique=97preserved in a refrigerated container=20=
since 1984=97must be cremated or buried. On this side of the Atlantic, more=20=
arrests were made this week in the Tri-State Crematory scandal. Crematory op=
erator Ray Brent Marsh faces 174 state counts of theft by deception for acce=
pting money for cremations he never performed and handing out fake remains t=
o the families. Authorities have found 339 bodies scattered and hidden on th=
e Marsh family property. Federal legislators have begun to call for federal=20=
oversight of the funeral industry.=20
Why do we care what happens to dead bodies? Does it really matter whether co=
rpses are cremated, buried, or tucked away in freezer chests? Nobody "owns"=20=
a dead body in any legal sense, and there isn't enough space on the planet t=
o ensure that a single corpse can rest undisturbed for all eternity. By any=20=
utilitarian or rational calculus, the dead aren't using their bodies anyhow.
Two mains areas of the law apply to dead people: 1) disposal of bodies; and=20=
2) crimes committed against dead bodies. In both cases, the laws are a tangl=
e of competing rights, often pitting the wishes of the deceased against the=20=
wishes of their survivors against the police powers of the state. The disput=
es range from battles over the harvesting of sperm from a corpse to whether=20=
sex with a dead body is rape. (In most states it isn't, unless you thought t=
he body was alive while you did it.) (The law's like that.)
1. The Rights of the Living Dead
The dead themselves have limited legal rights. Chief among them is the right=
to remain silent. From the time of the ancient Egyptians, the conviction ha=
s been that corpses have the right to rest undisturbed and unmolested. Willi=
am Henry Francis Basevi, in his 1920 book The Burial of the Dead, wrote that=
across history, cultures with almost no other rituals in common treat their=
dead with reverence. "In or near the grave are placed food, clothes, and we=
apons; while the body is protected from molestation often most elaborately.=20=
All this provision conveys the idea that there is something more in burial t=
han the disposal of a dead man's bones."
The respect for corpses is so rooted that we even agree to deal gently with=20=
the bodies of our enemies. International rules about the treatment of the ba=
ttlefield dead date back centuries. Witness Shakespeare's Henry V, in which=20=
a French herald pleads with King Henry: "I come to thee for charitable licen=
se/ That we may wander o'er this bloody field/ To book our dead, and then to=
bury them." The 1949 Geneva Conventions explicitly provide that prevailing=20=
forces must "search for the [enemy's] dead and prevent their being despoiled=
." The conventions further require that enemy "dead are honorably interred,=20=
if possible according to the rites of the religion to which they belonged, t=
hat their graves are respected, grouped if possible according to the nationa=
lity of the deceased, properly maintained and marked so that they may always=
be found." Violators have been convicted and imprisoned.=20
The right of the dead to rest quietly is not merely spiritual or historical.=
It was given consensus voice, only last week, by the French government's ad=
vocate in the Martinot case. Christian Prioux rhetorically asked of the cour=
t: "What kind of peaceful resting place can a fridge be, when you can just g=
o downstairs and take a peek any time you want?" Although the deceased in th=
is case evidently wanted to be peeked at, Prioux maintained that the dead so=
metimes deserve more respect than they ask for themselves.
2. Habeas Corpses: The Rights of Survivors
The deceased have fewer rights controlling the how and where of their burial=
. Often a will's burial specifications are not probated until long after the=
funeral. Survivors' wishes can trump those of the dead, regarding not only=20=
the burial but also preparation of the body. Even though the Uniform Anatomi=
cal Gift Act=97which regulates organ donation=97theoretically follows the wi=
shes of the deceased, the family gets the last word in practice. Even if the=
deceased filled out a valid organ donor card, hospitals won't fight familie=
s who object to the harvesting of organs. The fear of litigation, when only=20=
one party is alive to confer with their attorney, tends to override the need=
for that kidney.
In general, the legal rights of the next of kin include: the right to immedi=
ately posses the remains for burial, the right to oppose disinterment, the r=
ight to oppose autopsy or organ donation, and the right to seek damages for=20=
mutilation of the body. Who counts as next of kin? As a general matter, both=
common law and state statutes give first preference to spouses in determini=
ng what will happen to the deceased. If there is no spouse, decision-making=20=
authority goes by the same consanguinity rules that apply to inheritance. Le=
gal disputes have arisen where same-sex partners or unmarried lovers are exc=
luded from these decisions.=20
3. The Remains of the Dead: The Rights of the State
The state's interest limits what survivors can do with the remains of the de=
ceased or what the deceased can demand. Recording deaths, regulating the dea=
th business, and protecting corpses from abuse are all government functions,=
for reasons ranging from health and hygiene to crime control to fraud preve=
ntion.=20
Why can't you cryogenically freeze your grandma? Well, in some states you ca=
n. But you don't get do as you please with your dead because a very long leg=
al tradition rejects the notion that family members own the remains of their=
loved ones. This rule stems from the 17th-century British belief that human=
souls have the right to reclaim their bodies on Resurrection Day, therefore=
they can't transfer those rights to their descendants. American courts stil=
l refuse to find a property right in the body of the deceased, and so crimes=
against dead bodies are treated leniently for the most part. The Model Pena=
l Code provision concerning abuse of a corpse only makes it a misdemeanor, e=
xplaining, "[G]reater penalties seem plainly excessive in light of the fact=20=
that the harm involved is only outrage to sensibility." In other words, the=20=
law permits survivors to recover for emotional damage and trauma but not for=
damage to the dead as their property.
Partly in response to Jessica Mitford's muckraking in The American Way of De=
ath, the Federal Trade Commission enacted regulations to prevent blatant fra=
ud in the funeral industry. But because state criminal laws don't treat the=20=
abuse of dead bodies as a property crime, as in Georgia's Tri-State case, wh=
ole areas of corpse malfeasance are not criminalized at all: Marsh has been=20=
charged only with fraud because failure to cremate isn't a crime in Georgia.=
Some states provide for oversight and inspection of cemeteries and funeral=20=
homes, some don't. Different states have wildly divergent regulations about=20=
the scattering of ashes, the legality of cryogenic freezing, and the permiss=
ibility of stacking corpses, to name just a few. Some states prohibit abuse=20=
of the corpse, some criminalize mutilation of the corpse, some states expres=
sly outlaw necrophilia, but there is no consistent and coherent body of law=20=
pertaining to bodies.=20
Families whose loved ones have been recovered in Georgia describe the violat=
ion and horror of fraudulent cremations (and the discovery that they have an=
urn full of burnt wood chips on their mantle) as worse than a second death.=
Even if it's true that these survivors are suffering from nothing worse tha=
n a lack of closure, and even if the dead don't much care anymore, one measu=
re of any civilized society is how they treat their dead. In Sophocles' Anti=
gone,the title character defies the king and gives her brother a decent buri=
al because it's a right ultimately protected, as she says, "by the gods." An=
tigone understood, and we should too, that you should always be nice to dead=
people. After all, the next dead person you meet might just be yourself.
************************************************************
Also in today's Slate:
http://go.msn.com/nl/131543.asp
chatterbox: Whopper of the Week-- INS Commissioner James W.
Ziglar.
http://go.msn.com/nl/131544.asp
international papers: Is France a nation of gerontophiles?
http://go.msn.com/nl/131545.asp
moneybox: Minimal Disclosure-- "Corporate McCarthyism,"=20
Conseco clarity, etc.
http://go.msn.com/nl/131546.asp=20
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