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Necrophilia: immoral but not illegal

By: dmc-admin//August 6, 2007//

Necrophilia: immoral but not illegal

By: dmc-admin//August 6, 2007//

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What the court held

Case: State v. Grunke, Nos. 2006AP2744-CR, 2006AP2745-CR & 2006AP2746-CR.

Issue: Does sec. 940.225(7) criminalize necrophilia?

Holding: No. Legislative history indicates that the statute only relieves prosecutors of the burden of proving that the victim was still alive during intercourse in a rape-murder trial.

Attorneys: For Appellant: Gansner, William L., Madison; Pozorski, Anthony J., Lancaster; For Respondent: Jones-Molini, Susan L., Wauzeka

Wisconsin has no statute criminalizing necrophilia, the Wisconsin Court of Appeals held on July 26, even though sec. 940.225(7) provides, “This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.”

Instead, the court concluded that the statute allows prosecution for the sexual assault of a dead body only if the defendant committed the sexual assault in a series of acts including acts that caused the death of the victim.

In 2006, Alexander Grunke, Nicholas Grunke, and Dustin Radke went to a cemetery in Cassville, Wisconsin, intending to remove the body of L.T. from her grave so that Nicholas Grunke could engage in sexual intercourse with the corpse. The three men used shovels to reach L.T.’s grave, but were interrupted in their plans.

The defendants were charged with damage to cemetery property, attempted criminal damage to property, and attempted third-degree sexual assault, as party to a crime.

After a preliminary hearing, the circuit court denied bindover for the charge of attempted third-degree sexual assault, finding that the sexual assault statute did not apply to sexual intercourse with a corpse. The State appealed, but the court of app-eals affirmed, in an opinion by Judge Charles P. Dykman.

Rejecting the state’s argument that the statute unambiguously criminalizes necrophilia, the court concluded that the statute is ambiguous.

First, the court noted that the statute is included in Chapter 940, which addresses “Crimes Against Life and Bodily Sec-urity,” but sexual intercourse with a corpse, unrelated to the individual’s death, is not a crime against bodily security.

In addition, third-degree sexual assault, the crime the defendants were charged with attempting, provides, “Whoever has sexual intercourse with a person without the consent of that person is guilty of a Class G felony…”

The court concluded, “Because a corpse can never give consent through words or actions and death is not one of the instances listed in which consent is not an issue, but at the same time subsection (7) states that the entire section applies whether the victim is dead or alive at the time of the sexual contact or sexual intercourse, the interaction of these subsections creates an ambiguity (footnotes omitted).”

The court found that both the interpretations of the state and the defendants were reasonable, but concluded that the interpretation of the defendants was more reasonable, based on the legislative history of the statute.

Subsection (7) was added to the statute in 1986, to solve a problem illustrated by a court of appeals decision in 1985, State v. Holt, 128 Wis.2d 110, 382 N.W.2d 679 (Ct.App.1985). A drafter’s note for the provision states: “Problem — don’t want prosecutions to fail because the DA has to prove that victim was alive at the time [sexual assault] took place — Have statute so that DA does not have to prove that victim was alive or dead.”

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Case Analysis

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Holt was convicted of both homicide and sexual assault. The court of appeals held that the jury could reasonably infer the sexual assault preceded the homicide, but that, because Wisconsin had no statute against necrophilia, the defendant was free to present evidence that the victim died before the sexual assault, and argue for acquittal on the sexual assault charge.

The court in the case at bar thus concluded that, when the Legislature passed subsec. (7) one year later, it was intended only to prevent future defendants from attempting the defense approved in Holt, and that the statute does not prohibit necrophilia generally.

The court wrote, “If the legislature had intended to allow prosecutions for sexual assault regardless of the circumstances under which the defendant obtained the corpse, it would not have identified the problem being addressed as a prosecutor’s having to prove whether the victim was alive during the sexual assault.”

Accordingly, the court affirmed the dismissal of the attempted sexual assault charges.

Click here for Case Analysis.

David Ziemer can be reached by email.

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