Victims in Life, Victims in Death - Keeping Burial Rights Out of the Hands of Slayers

• Author: Minia E. Bremenstul
• Pages: 213-253

Victims in Life, Victims in Death—Keeping Burial

Rights Out of the Hands of Slayers

INTRODUCTION

It often takes tragedy to bring about change. In 2009, Constance

Shepherd was brutally murdered at the hands of her husband,

Stephen Shepherd.1 Her body was found in their New York home—

her throat slashed by a medieval-style sword.2 While still grieving

the loss of their loved one, Constance’s surviving family members

were victimized yet again:3 As Constance’s surviving spouse,

Stephen Shepherd had the sole right under New York law to control

the disposition of her remains,4 despite being charged with her

murder.5 Contrary to her family’s wishes,6 Shepherd left

Constance’s body in the morgue for more than a month before

having his attorney cremate and bury her remains near his favorite

fishing spot, hundreds of miles away from her family and home in

New York.7

Copyright 2013, by MINIA E. BREMENSTUL.

1. Dean G. Skelos, Senate Passes Bill to Protect Remains of Crime Victims,

NY STATE SENATE (May 14, 2012), http://www.nysenate.gov/press-release/senate

-passes-bill-pr otect-remains-crime- victims-0.

2. Rich Newberg, Man Pleads Guilty in Death of His Wife, WIVB.COM

(Oct. 13, 2009, 7:17 PM), http://www.wivb.com/dpp/news/crime/Man_pleads

_guilty_in_death_of_his_wife_20091013.

3. “Homicide is a crime with more than one victim.” OFFICE FOR VIC TIMS OF

CRIME, U.S. DEP’T OF JUSTICE, FIRST RESPONSE TO VICTIMS OF CRIME: A

GUIDEBOOK FOR LAW ENFORCEMENT OFFICERS 53 (2010), available at

http://www.ovc.gov/publications/infores/pdftxt/2010FirstResponseGuidebook.pdf

(referring to survivors of homicide victims).

4. “Disposition” or “final disposition” refers to the lawful disposing of a

dead body, which may include burial, interment, cremation, anatomical donation,

or other authorized disposition. See ARK. CODE ANN. § 20-17-102(a)(2)(C)

(Westlaw 2013); FLA. STAT. ANN. § 497.005(32) (Westlaw 2013); N.Y. PUB.

HEALTH LAW § 4201 (McKinney 2013).

5. Skelos, supra note 1. Shepherd pleaded guilty to manslaughter and agreed

to a 21-year sentence. Newberg, supra note 2.

6. Constance’s family objected to Shepherd’s burying of her cremated

remains on Mount Tremper at a Buddhist temple in the Catskills and believed that

his choice was intentionally disrespectful. See Tom Precious, State Bill Would

Deny Killer Control of Victim Burial, THE BUFFALO NEWS, May 15, 2012,

available at 2012 WLNR 10272924. Conversely, Shepherd indicated to his

attorney that it would have been his dead wife’s wish because they were both

practicing Buddhists. Id.

7. See Michael Gormley, NY Seeks to Deny Murderers Spousal Burial

Rights, ASSOCIATED PRESS (May 14, 2012), available at http://bigstory.ap.org

/content/ny-seeks-deny-murderers-spousal-burial-rights; Michael Regan, Loophole

Closed Allowing Control of Victim’s Body, TONAWANDA NEWS, Oct. 26, 2012,

214 LOUISIANA LAW REVIEW [Vol. 74

The public outcry over Constance Shepherd’s story and other

similar tragedies prompted the New York State Legislature to

amend its disposition of remains law in order to prevent murderers

from controlling the disposition of their victims’ remains.8 The law

prohibits any person who, “at the time of the decedent’s death, was

the subject of an order of protection protecting the decedent; or . . .

[who] has been arrested or charged with any crime . . . allegedly

causally related to the death of the decedent” from having “the right

to control the disposition of the remains of the decedent.”9 While

New York has closed its statutory gap that allowed “slayers”10 to

control the burial of their victims, many states have not yet remedied

this alarming oversight in the law.11 Consequently, in some states,

murderers like Stephen Shepherd continue to have the ability to

control the location, timing, and method of the disposition of their

victims’ remains.

Nearly all states have “slayer statutes” to ensure that slayers may

not inherit property or receive life insurance benefits as a result of

their criminal acts,12 but many states have not extended this

prohibition to the power of slayers to legally dispose of their

victims’ bodies.13 Although all states have enacted statutory

http://tonawanda-news.com/local/x674151912/Loophole-closed-allowing-control-

of-victims-body.

8. See New York to Deny Burial Right of Convicted Murders, THE DAILY

NEWS, June 12, 2012, available at 2012 WLNR 12776024. Another case

prompted action in New York: a murderer who beheaded his wife was able to

control the timing and location of her burial. Gormley, supra note 7. A week

before she was killed, the mother of three had filed for divorce. Id.

9. N.Y. PUB. HEALTH LAW § 4201 (amended in 2012 to include a provision

calling for forfeiture when a person is arrested or charged with the decedent’s

death).

10. Throughout this Comment, the term “s layer” is used in a broader sense

than the word “murderer.” A person who commits murder is one who kills another

with malice aforethought. BLACK’S LAW DICT IONARY 1114 (9th ed. 2009).

“Slayer” as used in this Comment refers to a person who commits an offense that

precludes the person from inheriting from his or her victim under the state’s slayer

statute. Slayer is generally defined as “a person who kills another, or who

participates in killing another, by an act that is felonious, intentional, and without

legal excuse or justification.” RESTATEMENT (THIRD) OF RESTITUTION & UNJUST

ENRICHMENT § 45 (2011). However, the scope of offenses included in slayer

statutes varies by jurisdiction. See 95 C.J.S. Wills § 99 (Westlaw 2013). For

example, many statutes also encompass voluntary manslaughter, and some even

reach negligent homicide. See id.; see also infra note 180 and accompanying text.

11. See infra note 91 and accompanying text.

12 . The slayer rule “has been legislated in most U.S. jurisdictions and in the

few others it has been applied by common-law doctrines.” Nili Cohen, The Slayer

Rule, 92 B.U. L. REV. 793, 797 (2012).

13. See infra note 91.

2013] COMMENT 215

guidance concerning the order and priority of persons with the right

to control final disposition,14 nearly half lack forfeiture provisions15

to account for situations in which one of those individuals is

criminally responsible for the decedent’s death.16 Furthermore, even

state statutes that do have forfeiture provisions often do not provide

adequate coverage. First, some provisions do not encompass all

victim–offender relationships; several address only certain

categories of familial homicides, like spousal murders, while others

do not provide for forfeiture if the deceased specifically designated

the slayer to act as his or her agent for disposition.17 Second, many

provisions only contemplate forfeiture once criminal charges have

been brought, ignoring the timing considerations involved with

making disposition decisions as well as establishing probable cause

for an arrest.18 Third, statutes often do not provide an individual

who has forfeited the right of disposition the opportunity to

challenge the forfeiture in a timely manner.19

States must ensure that disposition rights are not granted to

slayers by virtue of poorly crafted disposition of remains statutes.20

Instead, these statutes should require forfeiture for any person

granted the right to control disposition, whether by designation or by

law, who is criminally responsible for the decedent’s death.

Forfeiture is essential to protect not only a decedent from being

victimized a second time by his or her slayer but also the victim’s

grieving survivors from being rendered powerless and unable to

control the final resting place of their loved one. As long as an

individual subject to forfeiture is given notice and an opportunity to

be heard when forfeiture takes place, the rights of all parties—the

accused, the surviving family members, and the victim—will be

14. See infra notes 91, 137.

15. A forfeiture provision is a clause in a statute “stating that, under certain

circumstances,” a person must lose “a right, privilege, or property.” BLACK’S LAW

DICTION ARY, supra note 10, at 722 (defining “forfeiture” and “forfeiture clause”).

16. See infra note 91.

17. See discussio n infra Part II.B.2.a.

18. See discussio n infra Part II.B.2.a.

19. See discussio n infra Part II.B.2.b.

20. Throughout th is Comment, the author refers to statutes governing the

disposition of remains as “dispositio n of remains statutes.” Such statutes have also

been referred to as “bodily remains statutes,” “sepulture statutes,” or “priority of

decision laws.” See, e.g., Tracie M. Kester, Note, Uniform Acts–Can the Dead

Hand Control the Dead Body? The Case for A Uniform Bodily Remains Law, 29

W. NEW ENG. L. REV. 571 (2007) (using the phrases “bodily remains statutes” and

“sepulture statutes”); Ann M. Murphy, Please Don’t Bury Me Down in That Cold

Cold Ground: The Need for Uniform Laws on the Disposition of Human Remains,

15 ELDER L.J. 381 (2007) (using the phrase “priority of decision laws”).