Man vs. Corpse
by: Ryan • November 19, 2013 • no comments
It is perhaps less of a coincidence and more like the experience of buying a yellow car: suddenly, yellow cars are everywhere. But this strikes me as somewhat less common than a yellow car. It's a recurring discussion on the capacity of a corpse to suffer an experience. Tonight, it's an aside in the New York Review of Books. Last week, oral argument at the Court of Appeals.
In the NYRoB, the brilliant British author Zadie Smith was writing about an Italian painting, from the 15th or 16th century, called "Man Carrying Corpse on His Shoulders." At one point in the essay, she wrote, "Imagine being a corpse. Not the experience of being a corpse -- clearly being a corpse is the end of all experience."
Is it? Or is it possible to be a corpse or, for that matter, ashes in an urn, and be capable of being victimized in the criminal sense?
A recent COA opinion noted this dictionary definition of victim: The ordinary meaning of "victim" as "someone put to death, tortured, or mulcted by another: a person subjected to oppression, deprivation, or suffering * * * someone tricked, duped, or subjected to hardship: someone badly used or taken advantage of[.]" Webster's Third New Int'l Dictionary 2550 13 (unabridged ed 2002). In that sense, a "victim" is someone who is subjected to harm "by another," and not someone who is harmed by other causes."
Can you suffer, be deprived, be tricked, duped or subjected to hardship, when you're a corpse? Shakespeare's famous eulogy said over the body of dead boy (actually a live girl) in Cymbeline observed that death was a release from all pain:
Fear no more the heat o' the sun, Nor the furious winter's rages; Thou thy worldly task hast done, Home art gone, and ta'en thy wages: Golden lads and girls all must, As chimney-sweepers, come to dust.
We know the dead can't be libeled. Also, Oregon statutes designate -- relative to the crime of abuse of a corpse -- the deceased's family as the victim for some statutes but not, reasonably, for the merger statute.
And it so happens I read the Smith quote a few days after arguing to the Oregon Court of Appeals about whether dead people could, in fact, be victims for the purposes of the merger statute, if they predeceased the commission of the crime. The issue, you would think, wouldn't come up very often and it doesn't. But it should come up routinely in two situations: identity theft and encouraging child sexual abuse (ECSA).
Both crimes potentially involve victims who might be quite unaware that they're victims, who were nowhere near the scene of the crime or the arrest. In identity theft, a defendant could make a hundred IDs, in a hundred different names, and the state -- while claiming that each name represents a different victim, a position supported by the case law -- would not actually attempt to contact those victims unless it is quite obvious how to reach them. But identity theft can involve the misuse of an identity belonging to a real, imaginary or dead person, per statute. Is the prosecutor claiming that dead people can be victims of ID theft? That they are somehow harmed, defrauded or bamboozled? And if the prosecutor concedes that the dead are not victims, isn't it the prosecutor's burden to prove living victims before getting consecutive sentences or circumventing the 200% rule?
Same with ECSA. Human nature being what it is, the same porn people look at now is the same porn they'll be looking at a hundred years from now, long after all the participants have passed. No one of course disputes the horrible victimization of children who are used as sexual objects. But the COA says they are revictimized every time the pictures are looked at (by jurors too?). How can the dead be revictimized? And if they can't, isn't it the state's burden to prove their victims are living and not, per Smith, beyond the capacity of experience?
I only rarely write about the cases I'm appealing personally, so I'll let discretion take over and say nothing more about the case I argued. But if you've got an ID Theft or ECSA case, and the existence of different victims is what will really allow the state to hammer your client, hold the state to its burden to prove those victims are in fact still alive (or in the case of ID theft, non-imaginary). It's a simple and obvious rule that the predeceased cannot be victims, and it should be an easy standard to hold the state to.
