Please ensure Javascript is enabled for purposes of website accessibility

Necrophilia is against the law

By: dmc-admin//July 14, 2008//

Necrophilia is against the law

By: dmc-admin//July 14, 2008//

Listen to this article

Wisconsin law prohibits necrophilia after all.

The July 9 holding by the Wisconsin Supreme Court is hardly remarkable, given that subsec. (7) of the sexual assault statute explicitly states, “This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse.”

Writing for the court, Justice Patience Drake Roggensack held, “The plain language of sec. 940.225(7) is our guidepost; and by its terms, it is not limited to circumstances in which a perpetrator murders and sexually assaults the victim in a series of events.”

In 2006, after Grant County Circuit Court Judge George S. Curry had found the statute ambiguous and held it did not cover necrophilia, Wisconsin’s local media outlets were quick to misinterpret the holding to mean that no such statute existed.

State legislators moved quickly to be the first to introduce a bill to make it a crime. They could have saved their energy; the law was there all along.

Sought Dead Woman

The case began in September 2006, when Nicholas Grunke, Alexander Grunke, and Dustin Radke were alleged to have tried to dig up a female corpse in Cassville, so that Nicholas could have sexual intercourse with it. Nicholas had allegedly seen a picture of the girl in a newspaper obituary.

The three were arrested and charged with attempted theft, and attempted third-degree sexual assault.

Relying on legislative history, the circuit court held that the sexual assault statute did not apply unless the defendant was responsible for the victim’s death.

In a published decision, the Wisconsin Court of Appeals affirmed. State v. Grunke, 2007 WI App 198, 305 Wis.2d 312, 738 N.W.2d 137.

The Supreme Court reversed and remanded the case for trial, holding the statute unambiguous.

The Dead Cannot Consent

Subsec. (3) of the statute, applicable in this case, criminalizes sexual intercourse with a person “without the consent of that person.”

The defendants argued that, because a dead person cannot consent, it would be absurd to apply the statute to necrophilia.

However, the court found no ambiguity or incompatibility on this basis, concluding, “the [s]tate must still prove the element ‘without consent’ beyond a reasonable doubt; that endeavor is subject to a simple proof when the victim is a corpse.”

The court acknowledged that subsec. (7) could never apply to either subsec. (1) or (2) of the statute -– sexual assault with a dangerous weapon, and sexual assault by the threat or use of force, respectively.

However, the court found no reason it could not apply to subsec. (3), which merely requires the lack of affirmative consent.

Finally, the court rejected the defense argument that the legislative history precludes application of the statute.

The court acknowledged that the impetus for passage of subsec. (7) was the Wisconsin Court of Appeals’ opinion in State v. Holt, 128 Wis.2d 110, 382 N.W.2d 679 (Ct.App.1985).

Holt was charged with sexual assault and murder; he argued that he could not be guilty of sexual assault, because the state could not prove whether he had intercourse with the victim before or after murdering her.

Therefore, the Grunkes and Radke argued, subsec. (7) only forecloses that defense, and only applies if the defendant is responsible for the death of the victim.

Statute Covers Necrophilia

The Supreme Court disagreed. Besides the plain language of the statute, the court also found evidence in the legislative history that the purpose of subsec. (7) was not just to foreclose the defense raised by Holt, but to remedy a greater problem: the absence of any necrophilia statute in Wisconsin.

In a prepared statement, Attorney General J. B. Van Hollen said, “We are pleased that the plain meaning of the statute has been upheld and that the long-delayed prosecution of these defendants can proceed.”

Chief Justice Shirley S. Abrahamson wrote separately, to take issue with the lead opinion’s purported reliance on the “plain terms of the statute.”

Justice Ann Walsh Bradley dissented, in an opinion joined by Justice Louis B. Butler, Jr., concluding that the statute is ambiguous, and that the legislative history indicates subsec. (7) was only intended to apply to cases involving murder and sexual assault, and not to cases of necrophilia.

Bradley wrote, “The majority reaches a desired result through an undesirable analysis. I acknowledge that this is heinous conduct and good public policy would indicate that this conduct should be criminalized,” but she concluded that the current statute does not do so.

Attorney Suzanne Edwards of Dodgeville, who represents Nicholas Grunke, expressed disappointment with the majority’s ruling.

“My point is that ‘assault’ requires putting a victim in fear, or using force, and thus, a live victim is a necessary element of sexual ‘assault,’” Edwards said. “Even if the victim is unconscious, a defendant would still be forcing his will on another person; however, that is something that cannot be done to a corpse.”

Polls

Should Steven Avery be granted a new evidentiary hearing?

View Results

Loading ... Loading ...

Legal News

See All Legal News

WLJ People

Sea all WLJ People

Opinion Digests