Can someone be prosecuted posthumously?

Question

Can someone be prosecuted posthumously in the British or EU courts for alleged sexual offences committed many centuries ago?

Answer 1

united-states

Someone cannot be criminally prosecuted posthumously in the United States. Indeed, even a prosecution commenced while someone was alive will be dismissed upon the death of the defendant if the prosecution or direct appeals from a conviction challenging the conviction are still pending at the time of death. This can have practical effects on the ease with which related civil lawsuits can be prosecuted, or could have other non-criminal case implications.

Posthumous pardons for criminal convictions, while they are strictly symbolic, are granted from time to time (sometimes hundreds of years later). They amount to a public apology for past actions of the state. It can heal harms to the reputations of the relatives of the pardoned person as well. It also amounts to a disavowal of the policies that make those convictions possible (which is potentially pertinent if someone seeks to use a case that has been pardoned as a legal precedent in a country which a common law legal system). It could also impact where someone can be interred, what death benefits their survivors are entitled to, and what posthumous honors can be awarded to a person (some military honors, like the Medal of Honor in the U.S., are usually awarded after death).

What makes the 1692–93 trials in Salem, Massachusetts, unique within the wider history of witch-hunts is the swiftness with which public opinion changed. Within a matter of years, the first survivors had their names cleared and received financial compensation, providing a foundation on which later posthumous pardons were built.

(Source)

Posthumous pardons always (or almost always, I'm not omniscient) relate to actual convictions of people in the past, even though pardons granted during life in some U.S. jurisdictions can be granted even when someone has never been charged with or convicted of a crime.

Lawsuits that are not criminal in nature, however, can be brought against a probate estate of a deceased person, either continuing lawsuits that were pending at the time of death, or starting new lawsuits (sometimes called "claims" when filed after a defendant's death and subject to different procedural rules), until the deadline for filing claims of the kind filed in the estate expires.

For most lawsuits brought by non-governmental parties, post-death lawsuits are typically barred if not filed somewhere between a few months and a few years after the date of death, depending upon the laws of the relevant states. But a defect in a chain of title can be relevant for a couple of decades in many cases.

united-kingdomeuropean-union

Can someone be prosecuted posthumously in the British or EU courts for alleged sexual offences committed many centuries ago?

While this can't be done in either a criminal prosecution or a civil lawsuit against a decedent, it is conceivable that a sexual offense committed centuries ago could be relevant to royal or aristocratic succession in some European countries. Prior to 1814, when the doctrine was abolished in the U.K., it would have been relevant under the corruption of blood doctrine for certain crimes. (The 1814 Act that abolished the doctrine is notable for being one of the first documented cases of U.S. law influencing English law instead of the other way around).

Some jurisdictions in Britain and the E.U. have granted pardons of offenses hundred of years old, such as the March 2022 pardons of the witchcraft convictions secured in Scotland centuries ago.

In 2008, the Swiss canton of Glarus pardoned Anna Göldi, whose execution for witchcraft in 1782 was Europe’s last. In January, Catalonia became the first territory to pass a blanket pardon of all its witches, with plans to rename streets in their memory.

Another posthumous pardon story is also notable in this regard:

England and Wales: Thousands Receive Posthumous Pardon for Homosexuality Convictions

(Feb. 23, 2017) Section 166 of the recently enacted Policing and Crime Act of England and Wales granted approximately 49,000 deceased gay and bisexual men a posthumous pardon for offenses they were convicted of under the old sexual offenses laws that had provided that homosexuality was a crime. The Act also states that any living person who was convicted of these offenses may apply for a statutory pardon to remove the convictions from their records. (Policing and Crime Act 2017, c. 3, LEGISLATION.GOV.UK.)

The law, referred to as the “Alan Turing law” after one of the most notable people to be convicted under the old provisions, grants posthumous pardons to men convicted of homosexuality offenses provided the following conditions are met:

• the parties to the conduct were over the age of 16 years old and both consented; and

• the offence is not an offence under section 71 of the Sexual Offences Act, which provides that sexual activity in a public restroom is a criminal offence. (Policing and Crime Act, § 166.)

The offenses included under the Act, known during the time they were enacted as “unnatural offences,” are the offense of buggery under section 12 of the Sexual Offences Act 1956 and similar related offenses under historical acts such as An Act for the Punishment of the Vice of Buggery 1533 and similar acts. (Sexual Offences Act 1956, c. 69, LEGISLATION.GOV.UK; An Act for the Punishment of the Vice of Buggery 1533, 25 Hen. 8 c. 6, 3 STATUTES OF THE REALM at 441, available at HATHI TRUST DIGITAL LIBRARY; An Act Against Sodomy 1548, 2 & 3 Edw. 6, c. 29, 4 Pt 1 STATUTES OF THE REALM at 72, available at HATHI TRUST DIGITAL LIBRARY; An Act for the Punishment of the Vice of Buggery 1562, 5 Eliz. 1, c. 17, 4 Pt 1 STATUTES OF THE REALM at 447, available at HATHI TRUST DIGITAL LIBRARY; Offences Against the Person Act 1861, 24 & 25 Vict. c. 100, LEGISLATION.GOV.UK.)

Alan Turing’s Case

Alan Turing, the namesake of the law, is considered to be the father of the computer and of artificial intelligence. He played a key role in breaking Nazi codes during World War II and was described by Winston Churchill as making “the single biggest contribution to the allied victory.” (Ashley Cowburn, Theresa May Committed to Introducing ‘Alan Turing Law’ and Pardon Gay Men Convicted of ‘Gross Indecency,’ INDEPENDENT (London) (Sept. 21, 2016).)

Turing was convicted of gross indecency under section 11 of the Criminal Law Amendment Act 1885 after he acknowledged a sexual relationship with a male partner. (Criminal Law Amendment Act 1885, 48 & 49 Vict. c.69, available at British Library website.) He pled guilty and received a sentence of one year of probation, during which time he was required to undergo hormonal treatment, which left him impotent. (B.J. Copeland, Alan Turing, ENCYCLOPAEDIA BRITANNICA (last updated Jan. 23, 2016).) The conviction led to the revocation of his security clearance and left him unable to work for the United Kingdom’s Government Communications Headquarters; it also resulted in his being denied entry into the United States. Just two years after the conviction, he died in an apparent suicide after eating an apple poisoned with cyanide. (Id.) At the time of Turing’s death, suicide remained a criminal offense. It was later decriminalized by the Suicide Act 1961. (Suicide Act 1961, 9 & 10 Eliz. 2, c. 60, LEGISLATION.GOV.UK.)

Turing was pardoned in 2013 by the rarely used Royal Prerogative of Mercy after Ministers altered their stance that he had been rightfully convicted of a crime under the provisions of the time. (Copeland, supra; Alan Turing’s Trial Charges and Sentences, 31 March 1952, supra.)

Meanwhile Scotland offered a general apology and automatic pardon to gay men convicted prior to 2001 under discriminatory laws, almost two decades before England and Wales did. (Source)

Why Can Dead People Be Pardoned But Not Convicted?

The original post discussed whether a prominent historical figure was guilty of a crime, for reasons that weren't quite clear.

Those judgments are often made by historians, but have no direct legal effect and do not have definitive legal answers. Whether a historical figure committed a crime is something upon which people may disagree without legal consequences in most cases.

One of the reasons to disallow posthumous criminal convictions of deceased persons is to avoid embroiling courts in divisive historical questions without any real present legal effect and without the benefits that an adversary process and direct access to the relevant facts that could have been marshaled at the time could have provided.

Related Defamation Issues

Historically, at least, at common law in England and Wales, and in the early United States, speaking ill of the dead constituted actionable, and sometimes criminal defamation, even if one could prove that the defamatory statements were true, for essentially identical reasons.

I don't know the current state of British law on that subject with confidence, but it appears to have been eliminated as a basis for a defamation claim in §1(1) of the Law Reform (Miscellaneous Provisions) Act 1934.

Answer 2

The Crown Prosecution Service has said:

Since deceased persons cannot be prosecuted, the Crown Prosecution Service will not make a charging decision in respect of a suspect who is deceased.