Necrophilia Case Analysis

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The court’s review of the legislative history, and its conclusion — that sec. 940.225(7) was intended to prevent other defendants from attempting the defense that the defendant used in State v. Holt, 128 Wis.2d 110, 382 N.W.2d 679 (Ct.App.1985) — is indisputably correct.

The court of appeals in Holt wrote, “in a rape-murder case where the exact sequence of events cannot be proved, the jury may reasonably infer, though it need not do so, that the victim was alive during the sexual assault, at least in the absence of evidence of necrophiliac tendencies on the part of the accused.” Holt, 382 N.W.2d at 685. A year later, sec. 940.225(7) became law.

However, it does not follow from that chronology or statements by legislators, that the statute cannot be applied to necrophilia generally, but is limited to those instances in which a defendant’s conduct caused the death of the sexual assault victim.

The problem in Holt’s case, for the Legislature, was that Wisconsin had no law against necrophilia (an oversight, presumably), not that Wisconsin had no statute distinguishing between necrophilia and sexual assault of a live person.

The legislative solution was to pass a statute that unambiguously criminalizes necrophilia. There is no sound reason to limit the statute to cases identical to the case that prompted its passage.

Other reasoning by the court is off-base.

One of the reasons the court gives for finding the statute ambiguous is that it is included in Chapter 940, which governs crimes against life and bodily security, but sexual intercourse with a corpse is not a crime against bodily security.

However, another statute also included in Chapter 940 is sec. 940.11, which criminalizes mutilating and hiding a corpse. If sexual intercourse with a corpse is not a crime against bodily security, then neither is mutilating or hiding a corpse; yet the statute is similarly included in Chapter 940. Section 943.20(e) — theft from corpse — in contrast, is included in Chapter 943, which addresses thefts.

Thus, there is nothing remarkable in sec. 940.225(7)’s inclusion in Chapter 940, and its placement creates no ambiguity. Theft from a corpse is addressed in the theft chapter; mutilation of a corpse is included in the crimes against bodily security chapter generally; and sec. 940.225(7) is included in the sexual assault statute specifically.

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If the court’s reasoning is correct, then a defendant arguably can be convicted of mutilating and hiding a corpse only if he participated in the murder of the victim, even though that interpretation is plainly unreasonable.

Holt’s defense was just a symptom of a problem; the problem was that Wisconsin had no statute prohibiting necrophilia. The legislative response is properly viewed as a cure for the root problem, rather than as treatment of a symptom of that problem, which the court of appeals did in this case.

The sexual assault statute already plainly states, “This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.”

An old statement in a dissent by then-Justice Shirley S. Abrahamson very aptly applies to this statute: “I do not know how, after the decision in this case, the legislature could amend the statutes to make its intent any clearer…Must the legislature add the words ‘AND WE REALLY MEAN IT’ …” State ex rel. Richards v. Foust, 165 Wis.2d 429, 480 N.W.2d 444, 445 (1992)(Abrahamson, J., dissenting)(emphasis in original).

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David Ziemer can be reached by email.