Rape Law Bans Sex With Dead Bodies, Wisconsin Supreme Court Says

Criminal Justice

Rape Law Bans Sex With Dead Bodies, Wisconsin Supreme Court Says

Posted Jul 9, 2008, 01:37 pm CDT
By Martha Neil

Reversing lower court judges who said Wisconsin criminal law doesn't prohibit necrophilia, the state supreme court held today that rape law bans sex with dead bodies.

Because rape law prohibits sex with an unconsenting victim, "a reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person," writes Justice Patience Drake Roggensack in the 5-2 majority opinion (PDF).

Two dissenting justices said the law was intended not to ban necrophilia but to permit rape charges when the victim was also murdered, according to the Associated Press.

The case arose from an alleged attempt by three young men carrying shovels, a crowbar and condoms to dig up a corpse in a Wisconsin cemetery in 2006 after one saw an obituary photo of an attractive 20-year-old woman who had been killed in a motorcycle accident a week earlier. Although they reportedly couldn't get into the concrete vault in which she was buried, they were charged with attempted sexual assault and theft after a police officer responded to a report of a suspicious vehicle in the Cassville cemetery.

"The ruling reinstates attempted sexual assault charges against twin brothers Nicholas and Alexander Grunke and Dustin Radke, all 22," the AP article recounts. "They face up to 10 years in prison if convicted."

A defense lawyer for one points out that the charges have not yet been proven.

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Posted by Joseph Myers - 1 month, 4 weeks, 17 hours, 19 minutes ago

Until our Penal Code was amended to specify sexual intercourse with a dead body as a felony, necrophilia, as such, was not a crime in California. I had to argue that because the prosecution had not proved the victim in a murder-rape case was alive at the time of the sexual act, there was no rape, and therefore no “special circumstance” within the death penalty statute. The jury, horrified, disagreed.
Posted by Interested Law Student - 1 month, 4 weeks, 16 hours, 12 minutes ago

JNOV? As a matter of law could a reasoanble jury find that someone who could not be raped was raped?
Posted by Ellen Barshevsky - 1 month, 4 weeks, 1 hour ago

Enough with the statuory construction. These jerks tried to dig up a dead girl and have sex with her. End of story. Theyre guilty.
Posted by 2L - 1 month, 4 weeks, 40 minutes ago

Who in the heck is Ellen Barshevsky? You should stop posting things on these articles. You do no favors for your arguments when you post so carelessly proofread comments.
Posted by Steve Perkins - 1 month, 4 weeks, 32 minutes ago

"Enough with the statutory construction”?!? I assume that you’re currently in Orientation preparing to commence your 1L year next month, and I wish you the best of luck with your upcoming legal education.

Of course someone who digs up a corse and uses it for sexual release is “guilty” of SOMETHING, in the moral sense at least. However, it’s pretty imporant to be specific about WHAT they’re guilty of committing. In necrophilia, the victim is the corpse’s family… and perhaps society’s sense of dignity in general. In rape, the victim is the victim… AND ALSO the victim’s family, and society’s sense of dignity in general. While necrophilia is gross and disturbing, I don’t really see how you can say that it’s the exact same thing as the rape of a living person.

If the defendant’s are indeed “guilty of something”, then charge them for what they’re guilty. You make the silly assumption that overzealous prosecutors had NO CHOICE other than charging for rape or letting the defendant off scot-free. That’s simply not true, as the defendant’s likely committed a dozen unambiguous crimes (including felonies) in the process of entering the cemetary and carrying out this act.
Posted by Julie Ann - 1 month, 3 weeks, 6 days, 23 hours, 22 minutes ago

In response to Post #5, I follow your analysis but do you mean that because the “victim” is dead that it cannot internalize the act of the rape? If so then what about sexual intercourse with comatose bodies? Or the mentally handicap? Or an unconscious individual? Again, it’s a where-is-the-line-drawn scenario. To me (and frankly I haven’t really fully analyzed this question) this court’s ruling makes it quite clear and less open to interpretation: rape is the sexual intercourse of any individual not in a capacity to consent, living or dead. Just a thought.
Posted by esquiress - 1 month, 3 weeks, 6 days, 22 hours, 36 minutes ago

I’m just surprised that necrophilia and related corpse and attempted corpse abuses aren’t in the state criminal code; I certainly hope that WI and other state legislative bodies take note.

In the meantime though, I think that the court wasn’t off base in their analysis. The corpse is, of course, unable to consent. But then again, so is a plastic blow up doll. Hmmm. I suppose the distinction rests on the fact that the corpse was once living. I wonder if that was made explicit in the opinions.

I think this is good precedent though; hopefully this will dissuade potential rapists whose victims would be comatose, drunk/drugged, etc…
Posted by ABC - 1 month, 3 weeks, 6 days, 21 hours, 52 minutes ago

Based on the fact presented, these young men may be guilty of something, but “attempted sexual assualt” isn’t one of them. The women who have commented above seem much too involved in sexual politics to be able to make rational decisions about legal issues. The same may well be true of the judges on the Wisconsin Supreme Court. My recommendation: The Wisconsin State Legislature should pass a law against necrophilia. What may be about to occur in Wisconsin is a travesty of justice.
Posted by Gerry Schulze - 1 month, 3 weeks, 6 days, 21 hours, 51 minutes ago

While the part of me that is not a lawyer applauds this decision, the lawyer part of me suspects that it was wrongly decided. I have difficulty with the concept that a corpse is a “person.” Just as the law must recognize that life begins at some point, it must recognize that life ends. Is the corpse of a person whose life has ended a “person?” At best, it is ambiguous. Ambiguity shold be resolved in favor of the criminal defendant.

The state prohibits necrophilia. By analogy with the Rule of Lenity it would seem that in interpreting criminal statutes the lesser offense should be the applicable one.

It’s hard to get very upset at this particular case, but there are many cases in which overbroad interpretations of criminal statutes can lead to unduly harsh punishments or criminalizaton of activities which the legislature never contemplated criminalizing.

Gerry
Posted by Dan - 1 month, 3 weeks, 6 days, 21 hours, 50 minutes ago

"The corpse is, of course, unable to consent. But then again, so is a plastic blow up doll.”
But then, a blow up doll is not, and has never been, human.
It would be curious to see if they stretch this statute to include bestiality, or if that’s elsewhere. If so, it would indicate that this one does apply to just humans; but if not, then those blow up dolls may be an issue.
Posted by Rick - 1 month, 3 weeks, 6 days, 21 hours, 31 minutes ago

One word: cremation.
Posted by JT, JD - 1 month, 3 weeks, 6 days, 21 hours, 15 minutes ago

I’m curious about the definition of “unconsenting victim” here. While it is true that a corpse could not consent, I’m not sure that I would see the corpse as the victim. The other examples about drugged or comatose victims are different analogies. Those victims are still “alive” in the legal sense of the word and, as such, are victims. Here, that isn’t the case.

I’m also wondering if the lawyer will make an argument of diminished mental capacity if his/her clients really thought an autoposy photo was attractive. I’ve seen those photos before - attractive is the last word I would use to describe them.

Regardless, I concur with the poster above - there are more than enough other charges that could be filed and rather easily proven. Off the top of my head, criminal trespass, criminal destruction of property, (probably) desacration of a grave, etc. I’m thinking the prosecutor might have been stretching a bit on this one.
Posted by Michael - 1 month, 3 weeks, 6 days, 20 hours, 8 minutes ago

JT, it wasn’t an autopsy photo, it was an obituary photo, the kind printed in a paper as part of the obit. At least I hope it was. Because otherwise, these guys are sick.
Posted by Andy the Lawyer - 1 month, 3 weeks, 6 days, 19 hours, 51 minutes ago

Still left open is the question of accusations of rape of female zombies. I look forward to the Wisconsin Supreme Court’s thoughtful consideration of whether the undead have the legal capacity to consent, or to testify at trial.
Posted by rick - 1 month, 3 weeks, 6 days, 19 hours, 44 minutes ago

"Because otherwise, these guys are sick”

That and the necrophilia…
Posted by Kevin - 1 month, 3 weeks, 6 days, 19 hours, 17 minutes ago

Andy the Lawyer -

Please see my law review article - Unlife, Liberty, and the Pursuit of Braaaaaaains: Should Zombies Enjoy Our Constitutional Protections?
Posted by Stone - 1 month, 3 weeks, 6 days, 18 hours, 35 minutes ago

I note that we do not have a copy of the actual statute available. “unconsenting victim” would be a bit vague, but I imagine the word used in the actual statute is “unconsenting person.” That would eliminate bestiality and blowup dolls and include comatose, handicapped etc.

The argument here is akin to the abortion debate as hinted by Shulze. What is a person? I for one feel that a person at least has the rights of a person from conception through the total destruction of the body. Perhaps necrophillia should be a lesser offense, but let me ask this: Should intentional causation of a miscarriage with malice aforethought be considered murder? I say yes because the fetus is a person. Likewise, I say this is a crime of rape.
Posted by Ashtar94 - 1 month, 3 weeks, 6 days, 18 hours, 15 minutes ago

I have to comment on two posts above:
* “I suppose the distinction rests on the fact that the corpse was once living.”
* “What is a person? I for one feel that a person at least has the rights of a person from conception through the total destruction of the body.”

I’m worried about where that reasoning takes us. If you punch a corpse, are you guilty of battery? What about if you take a swing at a corpse but miss—are you guilty of assault? What about assault with a deadly weapon—is it worse to use a deadly weapon on a dead body?

My point is that it is a bad idea to try to shoehorn a disgusting act (which can be criminalized in its own right) into a crime that requires a living victim.
Posted by Andy the Lawyer - 1 month, 3 weeks, 6 days, 18 hours, 8 minutes ago

Stone’s making it up as he goes along. A fetus isn’t a person—that’s why Roe v. Wade allows it only a sliding scale of protections depending on its trimester of development rather than the same protections a human has from birth until death—and not after. A dead body is just a dead body, not a person.

Most states have a separate crime of “abuse of a corpse” and that’s all these sex pervs should have been charged with. But rape? Bah!

It’s amazing how when a bad act is so intrinsically disgusting that it elicits an “ewwwww” response, it also causes juries and Supreme Court justices to ignore the law and vote with their guts.

As for “until total destruction of the body”—when the heck does that take place? Total tissue liquefaction and absorption into the surrounding dirt? Bones disintegrating into fragments of less than some arbitrarily selected size or mass? The disappearance of stains on a burial shroud?
Posted by Ashtar94 - 1 month, 3 weeks, 6 days, 17 hours, 51 minutes ago

Andy the Lawyer:

Please tell me that “total destruction of the body” occurs before “the disappearance of stains on a burial shroud.” When I had my way with the Shroud of Turin last holiday, I had no idea that I might be molesting Jesus.
Posted by Andy the Lawyer - 1 month, 3 weeks, 6 days, 17 hours, 37 minutes ago

Ashtar—Enhancing the shroud’s stains with your own is cheating. Besides, Christian theologians convinced that Jesus ascended bodily into heaven takes the debate even further into the ozone that it’s already drifted.
Posted by Vlad Alucard , Esq. - 1 month, 3 weeks, 6 days, 15 hours, 1 minute ago

#14—

Here in Translyvania the law is still unsettled as to whether female zombies may testify at trial. However, a recent 13th Cir. decision coming out of the District of Lower Translyvania has made it perfectly clear that they don’t have standing in a subsequent civil action.
Posted by Jon - 1 month, 3 weeks, 6 days, 14 hours, 43 minutes ago

What about my ex-wife? She just kinda laid there “dead” as often as not.
Posted by Mary M. - 1 month, 3 weeks, 5 days, 21 hours, 7 minutes ago

I can understand charging these guys with any number of crimes-trespassing, breaking & entering, destruction of property, attempted desecration of a corpse, etc. but attempted rape? This is just plain silly.
Posted by Glenn Quagmire - 1 month, 3 weeks, 1 day, 3 hours, 55 minutes ago

The problem I have with this opinion is that they claim that the law protects unconsenting victims. “Unconsenting” implies the ability to consent or not to consent to the act. Since there is no ability to consent because the “victim” is no longer alive, then the classification of a corpse as an unconsenting victim fails by definition.

The act of rape of a corpse is deplorable, but should be handled as a penal code violation separate from normal rape laws. Living victims are expected to suffer and endure the painful experience and memory, the corpse does not. If you want to outlaw this type of activity, fine, but in this case, there was no attempted rape of a corpse. They should have been charged with attempted theft and trespassing.

The judges believe that only an ambiguous reading counts, not the legislative history or common sense involved. I think as judges they should be more critical of statutes and their meanings rather than just giving it a general plain meaning.

Still, necrophilia is sick, so I think there is good reason to add this type of crime to the books. But attempted necrophilia? What if they were able to open the concrete vault and see the actual corpse and decided not to do it? The smell or perhaps decomposition set in a little. Perhaps the photograph was old and this person was not as attractive as they hoped. The point is, charging them with attempting to do that which they could never have completed or may have had second thoughts should be considered.

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