House Majority Leader William Lamberth has filed a bill for the special session next week that would make confidential autopsies of “victims of violent crime who are minors.” The bill, HB 7007, would apply to deaths of children who are 17 and younger.
The special session was called by the governor to strengthen public safety in the wake of the school shooting at the Covenant School in which three children and three adults were killed. The session starts Monday night and is expected to finish by Thursday.
During a special session, normal rules of procedure can be suspended so that legislation can be passed quickly to deal with issues that lawmakers feel need prompt action that cannot wait until their normal session that begins in January.
Lamberth said he brought the bill to close autopsy records of children after hearing from the parents of two of the children who were killed in the Covenant School shooting. Parents of children in the Covenant shooting have sought to keep other evidence about the shooting confidential, including the writings and so-called “manifesto” of the shooter, saying it is too painful to see and could inspire copycat killers.
The Senate version of the autopsy bill has not been filed. No Senate bills for the special session were showing up on the legislature’s website as being filed as of Tuesday afternoon.
Autopsies have long been public records in Tennessee
Autopsies have long been public records in Tennessee. County medical examiners conduct autopsies when a person has been killed by another person or the cause of the person’s death is unknown and suspicious. Autopsies are critical in determining the cause of death and how and when the person was killed. They sometimes reveal details about the death that are contradictory to law enforcement statements or early conclusions. Autopsies have been used to clear suspects and identify new ones, as well as to show mistakes.
The new confidentiality of autopsies would apply when the child is a victim of a violent crime as defined in T.C.A. § 40-38-11. That definition includes first-degree and second-degree murder, reckless homicide, criminally negligent homicide, vehicular homicide and voluntary manslaughter as well as some crimes that do not result in death, such as kidnapping, aggravated child abuse and neglect and aggravated arson. The bill is unclear about when a minor is or has been considered a victim of say, aggravated child abuse, but dies of other causes, and whether this would be enough to cause the autopsy to be confidential.
The bill also does not define at what point a deceased person is considered a victim of violent crime and who makes that determination. Is it law enforcement or the district attorney, or is it after a conviction? In some situations, like the Covenant shooting, the crime is obvious because many people were there and witnessed the shooting. Others are less clear: Did the toddler die by accident or by crime? Was the police shooting considered justifiable? Was the person who killed the other person acting in self-defense? If the determination is made by law enforcement or the district attorney, then the very autopsy that might back up that conclusion (or refute it) would be confidential.
In some cases, the autopsy might become public during a courtroom trial when it is entered as evidence, but the statute leaves open the possibility that even there, the autopsy could be sealed.
In other cases, the autopsy might never be public because not all homicides result in a criminal trial. For example, police may not know who the killer is, may not have enough evidence to charge a suspect or may not be able to locate the suspect. In addition, police sometimes kill the person who they think committed the crime in a chase, or the person who police assume committed the crime is also dead when they arrive. If that dead person is the only parent, then police may assume that the parent killed the child then committed suicide. But under this scenario, the autopsy results that might give insight into what happened would be confidential.
In those cases, without a public trial, evidence from the autopsy would never come to light and mistakes and assumptions made about the death of the child, and the identity of the killer, might go unquestioned.
Narrow path ‘may’ allow release of autopsies
The bill offers a narrow path in which autopsies of minors who have been killed “may” be released: When “the minor’s parent or legal guardian is not a suspect in the circumstances of the minor’s death and the parent or legal guardian consents to the release” or when a court orders the release “upon a showing a good cause.” Even still, authorities would not be required to release the autopsy. The use of the word “may” indicates releasing the autopsy would be discretionary.
The parent consent path also assumes that the parent or legal guardian is still alive and was not killed at the time of the minor or afterward.
It also assumes that two parents agree. The bill does not answer what happens when one parent wants release of the autopsy and the other opposes release.
The bill language says that a parent who is a suspect in the child’s death would not be able to consent to release of the autopsy. So if such a parent thought the release of the autopsy would help clear his or her name, it appears the bill would bar that. The bill makes no mention of other family members. Grandparents, for example, would have no right to authorize release of an autopsy, nor siblings. It appears that only the parents can consent to release and no other relatives would have any power to see the autopsy or have it released.
The bill also allows legal guardians to consent to release of autopsies. But a requirement that a person be a “legal” guardian could diminish the power of someone who has been taking care of a minor, such as a grandparent, after the parents have disappeared or abandoned the child but who does not have “legal” custody. In some cases, a child might be a ward of the state or in the custody of the state, living with a foster parent or in a youth facility. In that case, would the legal guardian be the state youth facility where the minor died or the Department of Children’s Services? The bill is silent on this topic.
The other path to open the autopsy would be in court “upon a showing of good cause.” But those who might want to see the autopsy reports — such as grandparent, for example — would have to hire a lawyer and it’s unclear, without knowing what’s in the autopsy report, how to argue “good cause.”
Sometimes people access autopsies well after the actual death for academic or policy reasons, such as those doing research on deaths of children in Tennessee. Would these people be required to hire a lawyer and go to court to show “good cause”? Autopsies might also be requested by insurance companies or other businesses with an interest in the death.
These are just a few complications and questions on the bill in an initial reading, although myriad situations likely exist in which someone might want access to a minor’s autopsy and wouldn’t be able to get it under the bill’s proposed language.
What’s in autopsy reports? What’s already confidential?
Autopsy reports generally describe what killed a person in detail answering questions such as which injuries caused the death. Were the injuries from more than one person or more than one weapon? What type of weapon caused the death? What was the location of injuries on the body and what does that say about how the person might have been killed? When did the death occur? What was the likely position between victim and killer or killers when the injuries occurred? For example, was the person running away or running toward a person who killed them?
In Tennessee, some information in an autopsy is already confidential, including photos of the deceased taken during an autopsy and medical records that the medical examiner may have received about the victim before doing the autopsy.
Also, the names of minor victims are confidential by statute and would be required to be redacted from autopsy reports, as well as police reports.
TCOG considers this bill too broad and likely to result in unintended secrecy about child deaths. It will continue to examine this bill for potential consequences.
