Thursday, August 14, 2008

Why the Ashes of Kurt Cobain Were Not Stolen

A couple of months ago it was reported that the ashes of Kurt Cobain, legendary singer of the 90s rock group Nirvana, were taken from a secret hiding place in the home of his widow Courtney Love. Headlines in newspapers around the world proclaimed, "Kurt Cobain's Ashes were stolen." But were they?

Black's Law Dictionary defines the crime of larceny as "the unlawful taking and carrying away of someone else's personal property with the intent to deprive the possessor of it permanently," which is the common-law definition. Even assuming that all the other elements of the felony took place, were the remains of Kurt Cobain the property of his widow Courtney Love? Or, more generally, can human remains be property?

I think not, at least not for a long while after one's death. First, even if a family member is given the legal discretion to choose the form and place of the deceased's final resting, I am fairly positive that the law significantly limits one's options. One cannot do just anything with a body, even if one happens to be a close relative of the deceased. For example, one cannot sell a body, eat it, desecrate it etc. This indicates that one in fact does not own the remains but rather is entrusted with them within certain parameters.

Second, there are special prohibitions on grave desecration, which include a prohibition on removing human remains from grave sites. Such prohibitions have nothing to do with the crime of larceny and do not turn on transgressing against the family members of the deceased (the "owners"). Desecration of grave sites and human remains are crimes against the community at large, affronts to morality and perhaps also against the deceased herself. Human remains demand respect and have dignity that is not depended on the interests of third parties, at least for a certain period of time after death.

Third, the modern crime of larceny has different degrees of severity, depending on the worth of the property stolen. It would seem odd if the criminal severity of stealing human remains would turn on their monetary value. For example, in New York stealing the remains of a celebrity would fall under first-degree larceny, since the remains would fetch a handsome sum on eBay, while stealing the remains of an ordinary person would only amount to petty larceny. In addition, it is not at all clear that the law would recognize a monetary value based on projected yields of what is most likely an illegal market.

One explanation for why human remains are not property derives from the moral maxim that people should not be treated as property (although they have been and in certain places still are), and while human remains are not a person in the full sense of the word, they still maintain something of the person they once embodied. That surviving relatives are worked into the law governing human remains, giving them the right to make burial decisions or requiring their consent for exhuming the body etc., does not entail a property right but more a custodial or guardianship capacity. The right to determine the form of one's final resting place is the deceased's. However, in the absence of a will this right is given to one's close surviving relatives, for they can best be trusted to know the wishes of the deceased and to respect those wishes. Claiming that the remains of a human being were stolen is not unlike claiming that an incapacitated person was "stolen" from his family. To a degree it turns a person into a commodity.

If the interests of the dead are an important element in justifying both the sanctity of human remains as well as the regime governing the handling of human remains, it should not surprise us that this sanctity diminishes with time. Few if any of our interests extend thousands of years into our postmortem future.

Cobain committed suicide in 1994 and his memory and remains still demand our respect, which mandates we not treat his remains as a commodity or property. This entails that we not interpret the law to conclude that Kurt Cobain's ashes were stolen, an interpretation I suspect is unlikely. Taking Cobain's ashes constituted, both morally and most likely legally, a different and much worse crime than larceny.

Posted by Ori Herstein
(Nothing written here should be taken as legal advise and anything written here is the opinion of the author alone)

17 comments:

egarber said...

I don't know any of the details, but if you say they were taken from her home, the potential breaking and entering probably adds a property component to the crime, no? And with grave desecration, isn't *some* of the offense a violation of the physical property right of the site, etc.?

This doesn't detract from your overall point -- which is very strong, imo; I'm just being difficult :)

Michael C. Dorf said...

Interesting. At some point grave-robbing becomes archeology. The question is when. Under religious law---which is likely the original source of most of our laws about the dead---the answer is probably never. Presumably that's because the value of the dead from a religious perspective is tied up in some notion of an immortal soul or spirit. By contrast, treating the very-long-dead (e.g., King Tut) as fit subjects for archeology is based on the secular view that all of the people who would be offended by digging up the mummy are also long gone.

Ori Herstein said...

Egarber,

You raise what I think is an interesting point. Assuming that the person who "stole" the ashes was on the premises without authorization, then there was clearly a trespass offense. Roughly speaking burglary, I think, is trespass + intent to commit a crime (there are other components depending on the jurisdiction). The question is what was the crime that he/she intended to commit (if it was not theft, which he/she categorically could not have committed). You suggest desecration, which is an interesting suggestion.

Mike,

One problem with the "secular rule" - not to offending people – arises when it clashes with the religious rule – never dig up a tomb - manifested in the form of the sentiments of religious people. Religious people often protest archeological excavations (at least they do so in my neck of the woods) and feel very strongly over it. Then, the secular rule would justify banning archeological digs for secular reasons that turn on religious fever. Thus, while I think there is no one around today whose religion is opposed to excavating King Tut's tomb, there are those who oppose disturbing the resting place of his monotheistic counterparts.

Sherry F. Colb said...

One additional aspect of remains disposition is health. You cannot bury a body anywhere you like, because it would pose a potential health hazard to do so (particularly if the remains were of a sick person). This does not necessarily detract from the property status of the body, anymore than prohibiting you from disposing of litter anywhere you like would negate the property status of the item that you decided to throw away. Ashes, I believe, do not pose a health issue in the way that a dead body does. I think that, as a result, it makes sense to consider ashes as the property of the person holding those ashes. Like a very special, sentimental gift that Curt Cobain might have left Courtney Love, his ashes can be a kind of property that has meaning well beyond its market value without necessarily negating their status as property. For similar reasons, a person can leave his body to science and thus make it property of the university where it lands -- quite like textbooks and computers. Grave-robbing actually originated, as I understand it, because no one was voluntarily surrendering his or her body for doctors to study, so they took matters into their own (or rather, the grave robbers') hands.

heathu said...

I would have to agree with Prof. Colb here that ashes can be property, mainly because we give the “owner” (usually a loved one) a lot more discretion about how they are handled – the obvious example that I can keep a loved one’s ashes on a mantel indefinitely, but keeping a loved one’s body around is generally frowned upon.
But to answer Prof. Dorf’s question of when grave robbing becomes archaeology: for some societies, the answer is never. Consider the discovery of Kennewick Man in Washington State in 1996. He was dated to 9,300 years old, but several Native American tribes were claiming he was theirs, and wanted him “back” under Native American Graves Protection and Repatriation Act (“NAGPRA”). I am not aware of any local or indigenous objections to King Tut’s excavation, though his remains were younger. Maybe Egypt doesn’t have anything analogous to NAGPRA to base a complaint, or maybe Kennewick Man just had more friends than King Tut had.

heathu said...

Or what if Kurt Cobain’s ashes were converted into a diamond? Could someone steal this diamond from Courtney Love? Ashes may be remains, but they are not a body – at some point, remains can and do become property.

CJColucci said...

I wanted to be cremated and have my ashes put into souvenir egg timers for funeral guests. My wife consistently refused to honor my wishes, which bothered me until I learned that because of the amount and quality of ashes remaining, the egg timers wouldn't work. One more legal showdown avoided.

Ori Herstein said...

I agree that ashes, bones, skeletons and bodies can become property. The questions are when and through what process? I think it takes much longer than can be explained by the public health argument, so the answer is not fully found in this public good argument.

I proposed a sort of dignity (of the dead) principle. Mike can be read to be implying two principles: a religious one and a secular one (based on harm to contemporaries). Sherry implicitly proposes a will based principle (donation). Heathou can be understood to suggest a principle based on transformation.

David said...

this avoids the question, but surely the ashes were stored in some sort of container and the theft of that container is a legally cognizable crime, no?

dn

C said...

breaking and entering a dwelling with the intent to commit a felony therein is burglary. if this is what happened, then an actionable crime has been committed. either way, if the remains were indeed stolen, the act may be considered sufficiently shocking and offensive to the common morality (societal standard, . . . reasonable person . . . ) to constitute an actionable offense. simply, assuming the veracity of the facts, this act was not lawful. there could be a trespass issue if additional facts establish the elements of the property offense.

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