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)