Post-mortem hate crime: Spanish prosecutors pursue Daniela's parents

Post-mortem hate crime: Spanish prosecutors pursue Daniela's parents

Burying someone under a name that was not theirs appears in no legal code as a crime. And yet, the courts are currently examining whether it could be one. Spain's public prosecutor (Fiscalía) sees indications of a hate crime against the parents of Daniela, a trans woman who died and who, according to the prosecution, was buried under her male name and image. For now, the case is an open proceeding, not a conviction.

Honour dies with the deceased: the objection dividing jurists

The stumbling block is technical and old. Honour is a strictly personal right and it is extinguished with the person, argues one school of thought. If that is so, no incivil action for defamation of the deceased can be brought: heirs may only continue what the victim had already initiated in life, never start it on their own. Under that criterion, a post-mortem hate crime would not exist as such.

The alternative that the textbooks do recognise is the civil route. Spain's Organic Law 1/1982 of 5 May, on the protection of honour, privacy and one's own image, allows close relatives to defend the memory of the deceased through a lawsuit, not a incivil trial. For part of the legal doctrine, that is the correct channel and the incivil route is an overreach. For others, the criterion falls short when the offence targets identity.

A four-year proceeding and a gravestone deliberately commissioned

The prosecution alleges something more uncomfortable than a simple error on stone: that burying Daniela under her male identity was a cruel and premeditated act, because the gravestone had to be commissioned with that name engraved on it. It was not an oversight; it was a decision made with time to think it over.

The matter has accumulated four years of procedural journey. Four years of paperwork that, for another party, are not justice but business: it is pointed out that the web of lawyers and court clerks thrives on a family's grief. The term circulating is social engineering, and also necronym: calling by their birth name someone who can no longer correct it.

Who files the complaint when the victim no longer can

One question runs through the case: if the deceased cannot file a complaint, who does so on her behalf? Associations rather than the family are pointed to, which fuels suspicion of interests beyond the grief. The procedural answer —who has standing and what interest they defend— is precisely what the courts will have to define.

There is no verdict. If one arrives, and if it recognises damage to the post-mortem honour of a trans person, the likely outcome is that it will set precedent for future cases. The likely outcome, it should be said, is almost never what actually happens.