Does Virginia's felony concealment-of-a-dead-body statute apply to the remains of a fetus that died in utero?

Plain-English summary

Governor Northam asked the Attorney General whether the felony statute on concealment of a dead body covers fetal remains. Code § 18.2-323.02 punishes a person who "transports, secretes, conceals or alters a dead body, as defined in § 32.1-249, with malicious intent and to prevent detection of an unlawful act" as a Class 6 felony. Section 32.1-249(1) defines "dead body" as "a human body or such parts of such human body from the condition of which it reasonably may be concluded that death recently occurred." The question was whether a fetus that died in utero counts as "a human body."

The Attorney General concluded no. The analysis turned on statutory context. At least three different Code provisions in the same Health title (Title 32.1) refer separately to "a dead body or fetus," showing the legislature treats them as different things. Code § 32.1-249(4) defines "[f]inal disposition" as "the burial, interment, cremation, removal from the Commonwealth or other authorized disposition of a dead body or fetus." Code § 32.1-265 covers transfers in or out of the Commonwealth and uses "a dead body or fetus" three times. Code § 32.1-274 imposes record-keeping obligations "in charge of final disposition of a dead body or fetus." If "dead body" already encompassed a fetus, the "or fetus" language would be surplusage.

The next subsection (§ 32.1-249(2)) defines "fetal death" using the phrase "product of human conception" rather than "human body." The Supreme Court of Virginia presumes the legislature uses different terms to mean different things. The statutory history reinforces the conclusion: the definitions go back to 1960, when the legislature was already distinguishing "a dead body or fetus" and using "product of human conception" separately. The concealment statute (§ 18.2-323.02) was enacted in 2007, by which point Virginia law had been drawing this distinction for nearly 50 years. The legislature's choice to use "a dead body, as defined in § 32.1-249" rather than "a dead body or fetus" was therefore deliberate.

The rule of lenity reinforces the same conclusion. Criminal statutes are strictly construed; any reasonable doubt is resolved against expanded criminal liability. The AG explicitly noted that an earlier brief filed by his Office had urged a different view (in a case that resulted in an unpublished, non-precedential opinion upholding a conviction). The AG stated that the position in that brief was incorrect and did not serve the ends of justice, and that this opinion represents the official view going forward.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Code § 18.2-323.02 makes it a Class 6 felony to "transport, secrete, conceal or alter a dead body" with malicious intent and to prevent detection of an unlawful act or the cause of death. The statute was enacted in 2007 (2007 Va. Acts ch. 436) and cross-references the definition of "dead body" in Code § 32.1-249. That definition reads: "a human body or such parts of such human body from the condition of which it reasonably may be concluded that death recently occurred."

Title 32.1 (Health) is the home of Virginia's vital-records law. Chapter 7 of that title contains a coordinated system of definitions and regulations covering births, deaths, and fetal deaths. Section 32.1-249's first words are "[a]s used in this chapter ..." so the definitions in that section apply throughout Chapter 7. Within that chapter, the legislature consistently distinguishes between "a dead body" and "a fetus":

• 32.1-249(4) ("final disposition" of "a dead body or fetus")
• 32.1-265 (transfers, disinterments) ("a dead body or fetus" three times, plus "the body or fetus" three times)
• 32.1-274 (record-keeping obligations for "the final disposition of a dead body or fetus")

The chapter also distinguishes "death" from "fetal death" in § 32.1-249(10) (defining "vital records"), § 32.1-265(D), § 32.1-274(D), and SCV Rule 2:803(9). The fetal-death definition itself in § 32.1-249(2) uses "product of human conception" rather than "human body," and the same phrasing appears in § 32.1-249(2)(B) (spontaneous fetal death) and § 32.1-249(6) (live birth).

The statutory history goes back to 1960 (1960 Va. Acts ch. 451; § 32-353.4). The original 1960 enactment already had the same structural distinctions: separate definitions for dead body and fetal death, the "or fetus" phrasing, and the "product of human conception" language. So by the time the General Assembly enacted § 18.2-323.02 in 2007, Virginia law had been distinguishing dead body and fetus for nearly half a century. The AG concluded the General Assembly's choice to use only "a dead body" in the criminal statute was deliberate.

The opinion adds a notable confession of error. The AG explicitly says that an earlier brief filed by his Office urged a different reading, and that the case (which resulted in an unpublished, non-precedential opinion upholding a conviction) was incorrect. The AG concluded the prior position "was incorrect and did not serve the ends of justice." That paragraph reflects an unusual willingness by the Attorney General to publicly walk back a litigating position.

Common questions

What is the felony statute about?
Code § 18.2-323.02 punishes a person who transports, secretes, conceals, or alters a dead body with malicious intent to prevent detection of an unlawful act, the death, or the cause of death. It is a Class 6 felony.

Why doesn't "a human body" include a fetus?
The AG's reasoning is contextual. Looking at the statute in isolation, "a human body" might or might not include a fetus. But Virginia's vital-records law (where the definition lives) consistently distinguishes between "a dead body" and "a fetus," using "or fetus" repeatedly throughout the same chapter. If "dead body" already included a fetus, that language would be surplus. Statutes must be read so as to give effect to every word.

Does this mean a person who hides a stillborn fetus has committed no crime?
This opinion answers only whether § 18.2-323.02 applies. Other criminal statutes may or may not apply to specific facts. The opinion does not address whether some other charge is available; that question would depend on the specific circumstances and other statutes.

Why is the rule of lenity relevant?
Because § 18.2-323.02 is a criminal statute carrying significant penalties (a Class 6 felony). Criminal statutes must be strictly construed. Any reasonable doubt about scope is resolved in favor of the accused. The AG used this as a backup reason supporting the textual and structural conclusion.

Did the AG admit the Office had taken a different position in a prior case?
Yes. The opinion explicitly notes that a recent brief from the Office urged a different interpretation, and that the AG now concludes that position was wrong. The AG was unusually candid about reversing course.

Has the General Assembly tried to amend the statute to cover fetal remains?
The opinion notes a 2009 bill (S.B. 962) that would have made it a Class 1 misdemeanor to "remove, destroy, or otherwise dispose of any remains" when "a fetal death occurr[ed] without medical attendance." That bill did not pass. Under Tabler v. Board of Supervisors, the legislature's failure to pass an amendment is evidence that the existing statute does not cover the situation the amendment would have addressed.

What kinds of cases would this opinion affect?
Cases where a woman is alleged to have concealed or disposed of fetal remains after a miscarriage, stillbirth, or unattended pregnancy loss. The opinion says § 18.2-323.02 does not reach those situations. Whether a different statute might apply is a separate question outside this opinion's scope.

Citations

• Va. Code § 18.2-323.02 (concealment of a dead body felony)
• Va. Code § 32.1-249 (definitions of dead body, fetal death, etc.)
• Va. Code § 32.1-265 (transfers; "or fetus" usage)
• Va. Code § 32.1-274 (record-keeping; "or fetus" usage)
• Russello v. United States, 464 U.S. 16 (1983) (inclusion in one section, omission in another presumed intentional)
• Owens v. DRS Auto. Fantomworks, Inc., 288 Va. 489 (2014) (every word matters)
• Klarfeld v. Salsbury, 233 Va. 277 (1987) (different terms presumed different meanings)
• Lucy v. Cty. of Albemarle, 258 Va. 118 (1999) (in pari materia)
• Turner v. Commonwealth, 295 Va. 104 (2018) (rule of lenity)
• Washington v. Commonwealth, 273 Va. 619 (2007)
• 1960 Va. Acts ch. 451 (original definitions)
• 2007 Va. Acts ch. 436 (concealment statute)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2018/18-023-Northam-official-opinion.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
Mark R. Herring
Attorney General

May 25, 2018

The Honorable Ralph S. Northam
Governor of Virginia
Post Office Box 1475
Richmond, Virginia 23218

Dear Governor Northam:
I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of
the Code of Virginia.

Issue Presented
You have asked whether the words "a dead body," as used in § 18.2-323.02 of the Code of
Virginia, include the remains of a human fetus that expired in utero.

Background
Through two provisions of the Code of Virginia, the General Assembly has criminalized certain
conduct with respect to "a dead body" when such conduct is undertaken with malicious and specific
intent. Section 18.2-323.02 provides:

Any person who transports, secretes, conceals or alters a dead body, as defined in
§ 32.1-249, with malicious intent and to prevent detection of an unlawful act or to
prevent the detection of the death or the manner or cause of death is guilty of a Class 6
felony.[1]

Section 32.1-249(1), in turn, defines "dead body" as follows:

"Dead body" means a human body or such parts of such human body from the condition
of which it reasonably may be concluded that death recently occurred.[2]

Applicable Law and Discussion
As explained above, your question turns on whether a fetus constitutes "a human body" as used in
§ 32.1-249(1). The term "a human body" is not defined in § 32.1-249 or anywhere else in the Code of
Virginia. Nor has the Supreme Court of Virginia previously construed the term "a human body," either as
used in § 32.1-249 or elsewhere in the Code.

Your question thus involves a matter of statutory construction, where the "central focus is to
ascertain and give effect to the intention of the General Assembly.[3]" Legislative intent is determined
"from the words used in the statute,"[4] and the text is "to be given [its] ordinary meaning unless it is
apparent that the legislative intent is otherwise."[5]

There is considerable reason to doubt that the ordinary meaning of the words "a human body,"
standing alone, would be understood as including a fetus. There is, however, no need to answer that
question here, because it is "[a] cardinal rule of statutory construction ... that a statute be construed from
its four corners and not by singling out a particular word or phrase."[6]

The statutory context makes clear the legislature did not intend for the definition of "dead body"
contained in § 32.1-249(1) to include a fetus. At least three different sections of the Code of Virginia,
including another definition contained in § 32.1-249 itself, specifically distinguish between a dead body
and a fetus by providing that they apply to "a dead body or fetus" (emphasis added). For example,
§ 32.1-249(4) defines "[f]inal disposition" as "the burial, interment, cremation, removal from the
Commonwealth or other authorized disposition of a dead body or fetus."[7] Another provision of the same
statutory chapter governs transfers in or out of the Commonwealth (as well as disinterments or
reinterments) and contains three separate uses of "a dead body or fetus" and three separate uses of "the
body or fetus."[8] The third provision imposes record-keeping obligations on funeral directors, embalmers,
and others "in charge of final disposition of a dead body or fetus."[9] These provisions demonstrate that the
Code of Virginia distinguishes between a dead body and a fetus and show that the General Assembly
knows how to indicate that a given statutory provision applies to both.[10] It is therefore telling that the
provision at issue here, § 18.2-323.02, refers only to "a dead body" and omits the words "or fetus."[11]

It is especially appropriate to consider these statutes in pari materia because "'they relate
to ... the same subject or to closely connected subjects or objects.'"[12] All three of the statutory provisions
listed above are contained in the same statutory chapter as § 32.1-249(1)'s definition of "dead body." The
chapter in question is Chapter 7 (Vital Records) of Title 32.1 (Health). Section 32.1-249 is the first
section of that Chapter, and its first words are: "As used in this chapter ..." So if § 32.1-249(1)'s
definition of "a dead body" already included a fetus, every use of "a dead body or fetus" throughout that
chapter would be superfluous. "[S]tatutory language," however, should be interpreted "so as to give effect
to every word,"[13] and construing § 32.1-249(1)'s general definition of "a dead body" as already
encompassing a fetus would violate the "rule[] of statutory construction that discourage[s] any
interpretation of a statute that would render any part of it useless [or] redundant."[14]

Other provisions of § 32.1-249 reinforce the same conclusion. The very next statutory subsection
defines the term "fetal death," and uses the words "product of human conception" rather than "human
body."[15] "When the General Assembly uses two different terms in the same act, it is presumed to mean
two different things,"[16] which suggests that "a human body" and a "product of human conception" are not
the same thing. Another provision of § 32.1-249, the definition of "vital records," specifically
distinguishes between "deaths [and] fetal deaths,"[17] which reinforces the same distinction.

The relevant statutory histories also support the conclusion that a fetus that expired in utero is not
encompassed within either § 32.1-249(1) (the definition of a "dead body") or § 18.2-323.02 (the
underlying criminal prohibition). The definitions now contained in § 32.1-249 were first enacted in 1960
as Senate Bill 249.[18] Although the list of defined terms (and their order) was somewhat different than in
the current Code of Virginia, the original 1960 enactment already included all of the essential features
listed above, including (a) a definition of "final disposition" that referred separately to "a dead body or
fetus";[19] (b) separate definitions for "dead body" and "fetal death";[20] (c) two provisions that used the
words "product of human conception" rather than "human body";[21] and (d) a provision that specifically
distinguished between "death [and] fetal death[s]."[22] The same 1960 legislation also contained other
provisions distinguishing between "a dead body or fetus"[23] and referring separately to "death, or fetal
death."[24]

In contrast, the criminal statute at issue (§ 18.2-323.02) was enacted in 2007.[25] At that point,
Virginia law in general, and the Health title in particular, had been distinguishing between a dead body
and a fetus (and between a human body and a product of human conception) for nearly 50 years. For that
reason as well, the legislature's decision in 2007 to use the words "a dead body, as defined in
§ 32.1-249"[26] is most logically understood as a considered and deliberate choice.[27]

For these reasons, it is my view that the best reading of § 18.2-323.02 is that it does not apply to
the remains of a human fetus that expired in utero. To the extent any doubt remained, however, the rule of
lenity also would counsel in favor of the same conclusion. It is important to reiterate that the rule of lenity
applies at the end of the process of statutory construction rather than the beginning and that it is properly
used to resolve ambiguity rather than to create it in the first place.[28] That said, § 18.2-323.02 is a criminal
law that imposes significant penalties. The statute thus must be "strictly construed," with "any reasonable
doubt concerning the statute's construction" being resolved against expanded criminal liability.[29]

I am aware that a recent brief filed by this Office urged a different view about the proper
interpretation of § 18.2-323.02 and that that case resulted in an unpublished and non-precedential opinion
upholding a criminal conviction. I have concluded, however, that the position set forth in that brief was
incorrect and did not serve the ends of justice. Although that particular case is now over because the
defendant did not seek further review in the Supreme Court of Virginia, this opinion sets forth my official
view about how § 18.2-323.02 should be applied going forward.

Conclusion
For the reasons stated above, it is my opinion that the words "a dead body," as used in Virginia
Code § 18.2-323.02, do not include the remains of a human fetus that expired in utero.
With kindest regards, I am,
Very truly yours,

Mark R. Herring
Attorney General

1. VA. CODE ANN. § 18.2-323.02 (2015).
2. VA. CODE ANN. § 32.1-249(1) (2015).
3. Boasso Am. Corp. v. Zoning Adm'r of Chesapeake, 293 Va. 203, 207, 796 S.E.2d 545, 546 (2017) (internal quotation marks and citation omitted).
4. Id. (internal quotation marks and citation omitted).
5. Lovisi v. Commonwealth, 212 Va. 848, 850, 188 S.E.2d 206, 208 (1972).
6. Commonwealth Nat. Res., Inc. v. Commonwealth, 219 Va. 529, 536, 248 S.E.2d 791, 795 (1978); see also Chaffins v. Atl. Coast Pipeline, L.L.C., 293 Va. 564, 571 n.1, 801 S.E.2d 189, 192 n.1 (2017) (stating that, in construing statutes, "we do not read a word or phrase in isolation, but in context").
7. Section 32.1-249(4) (emphasis added).
8. Section 32.1-265(A), (C), & (E) (2015); see also id. at subsection (D) (referring to "dead bodies or fetuses").
9. Section 32.1-274(C) (2015) (emphasis added).
10. See May Dep't Stores Co. v. Commonwealth, 29 Va. App. 589, 600, 513 S.E.2d 880, 885 (1999).
11. See Russello v. United States, 464 U.S. 16, 23 (1983) (stating that "[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion") (internal quotation marks and citation omitted).
12. Lucy v. Cty. of Albemarle, 258 Va. 118, 129, 516 S.E.2d 480, 485 (1999) ("[T]he reason for considering statutes in pari materia is that this permits any apparent inconsistences [to] be ironed out whenever that is possible.") (internal quotation marks and citation omitted).
13. Owens v. DRS Auto. Fantomworks, Inc., 288 Va. 489, 497, 764 S.E.2d 256, 260 (2014).
14. Id.
15. Section 32.1-249(2); accord § 32.1-249(2)(B) (also using "product of human conception" rather than "human body" for purposes of defining "spontaneous fetal death"); § 32.1-249(6) (same for purposes of defining "live birth").
16. Klarfeld v. Salsbury, 233 Va. 277, 284-85, 355 S.E.2d 319, 323 (1987) (internal quotation marks and citation omitted).
17. Section 32.1-249(10); accord § 32.1-265(D) (drawing same distinction); § 32.1-274(D) (same); see also VA. S. CT. R. 2:803(9) (same).
18. See 1960 Va. Acts ch. 451; § 32-353.4.
19. Id. § 32-353.4(h).
20. Id. § 32-353.4(f) & (g).
21. Id. § 32-353.4(e) & (f).
22. Id. § 32-353.4(a).
23. Id. § 32-353.22(a); § 32-353.22(e).
24. Id. § 32-353.12(b); accord id. § 32-353.13 ("death, and fetal death").
25. See 2007 Va. Acts ch. 436.
26. Section 18.2-323.02.
27. Subsequent unsuccessful attempts to amend the criminal code to expressly cover certain actions involving "remains" following a "fetal death" also support this interpretation. See, e.g., S.B. 962, 2009 Reg. Sess. (unsuccessful proposal that would have made it a Class 1 misdemeanor to "remove, destroy, or otherwise dispose of any remains" when "a fetal death occur[red] without medical attendance"); see also generally Tabler v. Bd. of Supvrs., 221 Va. 200, 202, 269 S.E.2d 358, 360 (1980) ("In determining legislative intent, we have looked both to legislation adopted and bills rejected by the General Assembly.") (Emphasis added).
28. See, e.g., Johnson v. Commonwealth, 292 Va. 738, 743 n.2, 793 S.E.2d 321, 324 n.2 (2016) (stating that "the rule of lenity ... does not apply when the statute is unambiguous"); Fitzgerald v. Loudoun Cty. Sheriff's Office, 289 Va. 499, 508 n.3, 771 S.E.2d 858, 862 n.3 (2015) (stating that "the rule of lenity serves only to resolve genuine ambiguities and 'does not abrogate the well-recognized canon that a statute should be read and applied so as to accord with the purpose intended and attain the objects desired if that may be accomplished without doing harm to its language'" (alteration, and citations omitted)).
29. Turner v. Commonwealth, 295 Va. 104, 109, 809 S.E.2d 679, 681 (2018) (internal quotation marks and citations omitted); accord Washington v. Commonwealth, 273 Va. 619, 629, 643 S.E.2d 485, 490 (2007) ("[A]n accused cannot be punished unless his or her case falls plainly and unmistakably within the statute." (internal quotation marks and citations omitted)).