CONCEALMENT OF THE WHEREABOUTS OF HUMAN REMAINS

‘Take a minute to think of cases where someone is missing, presumed murdered and those responsible or others, will not reveal the location of the body so that it can be returned to loved ones and the pain of forever wondering can end.’

The statement…

We constantly hear the term ambiguous loss in relation to the grief attached to the families of those whose loved ones are long term missing persons (LTMP). But what does this mean and who does it affect? It is a fast-paced world, where the impact of a family’s grief is lost to the community as soon as the case goes cold and the media loses interest, overwhelmed by a gulf of infotainment competition from across the globe.

As a continuum it is only the family that suffers. The data tells us that for every long-term missing person, twelve people are directly impacted. In Australia, long term refers to those missing for longer than three months.  (2,700 LTMP X 12 = 32,400 Victims)

However, the impact on society goes a lot deeper than immediate and extended family. Until their loved one is returned to them, they will suffer an endless pain of worry. Often hoping for the unlikely, whilst simultaneously and hopelessly pushing back thoughts of the unimaginable. All the while not knowing. No news, no information, nothing. 

The reality is that the rest of us wander across the plains of life, munching and bumping away in blissful ignorance of the menace that prowls our perimeters, forever watching for our vulnerabilities.  As always it is mostly the young, the weak, or the lone souls who are the prey.

The predator will have done his homework.  For all sorts of reasons, he is likely to be male.  He will know when to strike and what to do with his victim, including where to dispose of the body.  His plan will include not disclosing to police where the body is, often because it is not in his interest to do so, as it weakens the case, or it feeds his sense of empowerment or some other psychological need.

It may be that the case may not be the work of a serial offender.  Instead it may be a one-off or random offence, a crime suspected or known to have been committed by some person or persons perhaps even known to the victim.   The body may have been disposed of at some subsequent stage and other persons may have become aware of where that body is located.

There are a hundred or more different scenarios, where any number of people may know where human remains, suspected or known to be those of a missing person, may be located.  In each of those cases there will likely be family members suffering unimaginable ongoing grief at the loss of that person, not knowing what happened nor being able to give them the dignity of a decent and proper burial.  In addition, there will likely be a corresponding and perhaps ongoing police investigation, involving long hours of investigation and search and rescue operational reviews. We, the community, will continue to tromp along whilst the criminals keep circling the herds picking us off, protected by the presence of some inadequate laws and by the absence of other laws, content in knowing that nobody has thought to limit their behaviour through the introduction of a preventive de-incentive.

The number of LTMP cases in Australia is estimated at approximately 2,700.  (Note: this figure is considered to be inaccurate but it is recognised that the exact number will be in the thousands).  In the United States it is ten-fold that figure and in other countries the number can be multiplied in line with the population and similar demographics. (US 25,000 LTMP X12 = 300,000 Victims).

Any cold case detective will tell you that it can take years to review a missing person cold case, especially one that is suspicious.  Therefore, it is not possible to investigate all cold cases given the number of LTMP.  What is required is a way to both slow down the accumulation and simultaneously clear some of those already on the LTMP list.  Missing in Australia[i] believes this can be done with the introduction of carefully legislated, strong laws enacted in relation to the concealment of information regarding the whereabouts of human remains. 

These proposed laws would also include adjustments to the ‘No Body No Parole’ provisions that exist in some jurisdictions.  However, the penalties and considerations would impact on all, regardless of the degree of involvement of the person charged, i.e. principal, co-offender or other. 

The laws proposed would encourage information from those cases where it is known criminality is involved.

The aims…

1.     Reduce long term missing persons (LTMP)

2.     Reduce trauma, grief and suffering of the families of the missing

Our objectives…

1.     Encourage all jurisdictions to introduce strong laws regarding concealment of knowledge regarding the whereabouts of human remains.

2.     Encourage all jurisdictions to introduce no body no parole laws.

The Basic facts...

In Australia there are approximately 2,700 Long Term Missing Persons (LTMP).  In the United States the figure is approximately is 25,000 active LTMP cases.  Missing person’s advocacy and support groups such as ‘The Missed Foundation’ estimate that there are approximately 12 people directly suffering grief or hurt for each missing person.  Do the maths, in Australia that is 32,400 victims and in the U.S, it is a whopping 300,000 victims. 

In addition, if we look at the annual missing person reports (55,000 in Australia and the United States approximately 600,000) and apply the 12 to 1 victim impact rule the result is mind-blowing.  Yet the support and response from the responsible governments and agencies, is minimal and a non-priority.

How do we resolve some of these cases?

Imagine losing your loved one as a missing person, a child travelling to school, or a sibling hiking in a national park, never seen again, with no knowledge of where they are or what happened to them.  The differing circumstances behind missing persons’ cases is extensive.  However, there are many similarities, with most, at least 95% are found safe and well.   The group we are dealing with is within the less than 5% who are never seen again.

Of those in the long term missing person category, there is an even smaller number who have become the victim of murder or other form of human intervention.  Many of these cases go unresolved, or are never identified as being connected to criminal or similar behaviour.  The weeks of grief become months, and the months become years. Two types of people have an interest in the case who are diametrically opposed, one anxiously wanting the knowledge, and the other having it but not wanting to share it.

Imagine if there was an incentive for those having the knowledge of the whereabouts of a missing person to share that knowledge with the police.  Current laws do not go far enough, and are mostly connected to ‘no body – no parole’ for those convicted of murder who will not reveal where the victim is.  But is this far enough, or is it short-sighted in not seeing the similarity to at least some cases involving the missing?

Often we see a Coroner determining that a missing person has been murdered by persons’ unknown, or perhaps concluding that there are unspecified circumstances surrounding their disappearance, but the law in some jurisdictions does not then refer to a criminal offence for those other than the murderer who are responsible for the missing person’s death.

What of those who may know what happened to a missing person and more importantly know where their remains are, perhaps peripheral criminals who witnessed or know what happened?  They are often not the principal offenders and would not respond to any coaxing by police or media to reveal what they know, even when in some cases significant monetary rewards are offered for information.  What if those persons with the knowledge were incentivised by a need to avoid a heavy prison sentence for not revealing their knowledge of where a person’s remains are?

Missing or murdered, does it matter which? For in both cases there are likely to be families grieving for the knowledge and the return of their loved ones.  From the lonely discarded victims of human trafficking, to the brutally raped and murdered, and others who have fallen as the innocent victims of war crimes.  Everyone not found is a missing person, everyone not found leaves a shackle of grief for family. 

The current law

What does the law say regarding the concealment of the whereabouts of a corpse?  Across the world we can find examples of the law, which reveal similarities perhaps enacted by ‘following the bouncing ball’ of what has occurred elsewhere.

In most countries there are various laws contained in Cemetery, Cremation or Burial acts. Most relate to the unauthorised burial or interment of a body, which are often about burials not connected to any criminal offence.  For these the penalties vary. Mostly as misdemeanours attracting little more than heavy fines and/or perhaps a short prison sentence.  An examination of some laws, certainly in the Western democracies, has mostly shown an absence of any offence for ‘Failing to disclose knowledge of the disposal or whereabouts of human remains.’  There are ‘No body – no Parole’ laws in place in a number of jurisdictions, however these crimes or penalties seem, in the main, to be for those who have committed murder and are not extended to those on the periphery of a crime, or who have knowledge of where human remains have been disposed.

Australia

There is a mixture of laws within Australia that deal with concealing the whereabouts of human remains.  Most of the laws are similar, and generally relate to the overt act of destruction, interfering with or interment of human remains. Generally, these laws do not go far enough and are not what I am referring to.  Whilst the South Australian Parliament in 2022 enacted strong offences relating to the destruction of human remains or other overt act to pervert the course of justice, which include physically concealing the commission of an offence, the laws do not go far enough.  In that they do not include failing to disclose knowledge of the whereabouts of human remains.

Whilst some jurisdictions have enacted laws relating to ‘no body no parole’ for offenders in murder cases.  Again, these charges do not relate to other parties, and are generally non-effective when dealing with stubborn un-remorseful principal offenders serving long prison sentences for the murder, with many older prisoners likely to die in prison before being eligible for parole anyway.

The proposal

The proposed laws should include the following;

• An offence of failing to disclose knowledge of the whereabouts of human remains.

The principal offence is a serious indictable offence and is committed where the accused has knowledge of the whereabouts of human remains and fails to disclose that knowledge to police. 

(In the above offence the accused may be convicted on circumstantial evidence and it is not necessary that the human remains be located, only that there is sufficient evidence at law to establish beyond reasonable doubt that the accused had knowledge of the whereabouts of the location and has failed or refused to reveal that location.)

• The offence can be committed retrospectively, i.e. if the police locate human remains and later establish that the accused had prior knowledge of the whereabouts of those remains and failed to disclose that knowledge then the accused is guilty of an offence of failing to disclose that knowledge at a date or time prior to the discovery. (This offence may carry a lesser penalty than circumstances where the remains may not have been found).

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Likely opposition

It appears that there could likely be some opposition to laws suggesting additional penalties for principal offenders in a crime of murder who do not reveal the whereabouts of the body.  It is likely that some of this opposition will come from some within the legal fraternity, who argue that it goes against the principals of justice for a guilty person to be penalised twice for the one offence.  This could be interpreted as boffin talk if we accept that these are two different offences committed by the accused, i.e. the principal offence, which may be murder, and the failing to disclose the whereabouts of the body of the victim, a separate offence, much like any sexual assault committed on the victim.

Regardless of the opposition to ‘no body – no parole’ or any additional penalty for the principal offender in overtly perverting the course of justice in the deposition of human remains, as is the case in South Australia, the subject of this paper is solely directed at those who fail to disclose their knowledge of the whereabouts of unlawfully disposed of human remains.

To suggest that the introduction of such a law will not benefit the victims and families of missing person cold cases is incorrect, especially if ‘retrospectivity’ is the basis of the argument.  Reiterating, the proposal is that the offence of ‘failing to disclose the knowledge’ occurs as soon as any legislation is enacted.   In cold cases (pre-legislation) the date of the offence would be the date of the legislation, whereas in cases where the disappearance is after the date of enactment, it would be on a date or between dates when it can be proved that the accused had such knowledge.

Retrospectivity as being an unfairness in an argument is not an issue, as it is akin to firearms laws or other legislation, e.g. where due to a change in legislation it is illegal to have possession of a firearm, which was perhaps purchased and owned legally prior to the legislation.  In the case of ‘concealment’ it is about possession of the knowledge, which much like a firearm, is a continuing offence after it is made illegal by law, and where the possessor of that firearm much like the possessor of the ‘concealment’ knowledge has failed to surrender that firearm.

Call to action

This is an open invitation to engage in the debate.

I have raised the topic, now it is up to you to engage in the debate.

·       What are the laws in your country?

·       What do you think about the proposition of a serious criminal (indictable) offence for failing to disclose the whereabouts of human remains?

·       If you disagree then what are your arguments against it?

·       If you agree then how can we/you make it happen?

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Written by Valentine Smith APM (Co-founder of Footprints in the Wilderness / Missing in Australia)

missinginaustralia.com.au – September 2025

[i]www.missinginaustralia.com.au is a missing person platform of which the author Valentine Smith is a partner and co-founder.