Does Wisconsin
prohibit necrophilia?
Judge’s
ruling questions law’s intent
By
David Ziemer
david.ziemer@wislawjournal.com
Sept.
27, 2006
Does
Wisconsin law prohibit necrophilia?
This
question arises following a Grant County Circuit Court judge’s
ruling in a case involving three 20-year-olds who allegedly tried
to dig up a dead body for sexual purposes.
Subsection
(7) of Wis. Stats. sec. 940.225 — Wisconsin’s sexual
assault statute — provides as follows: “This section
applies whether a victim is dead or alive at the time of the sexual
contact or sexual intercourse.”
Notwithstanding
this seemingly plain and unambiguous language, on Sept. 15, Judge
George S. Curry dismissed the state’s charges of attempted
sexual assault against three young men accused of trying to dig
up a woman’s body in order to have sex with it.
Curry
held that, notwithstanding subsec. (7), Wisconsin has no statute
against necrophilia.
Assistant
District Attorney Anthony J. Pozorski, Sr., who is prosecuting
the case, stated in an interview with Wisconsin Law Journal that
he will be asking the Wisconsin Department of Justice to pursue
an interlocutory appeal. Pozorski contends that the plain meaning
of the text makes clear that necrophilia is a crime, and therefore,
legislative history is irrelevant to the statute’s meaning.
DOJ
Attorney Gregory M. Weber stated that, when it receives a formal
request, after a final order is entered, “the request will
be evaluated as it would in any other case.”
The
court’s decision was issued orally, and a transcript has
not yet been prepared. The basis for the court’s decision,
and the defense motion to dismiss, was that the subsection’s
legislative history indicates it was not intended to apply to
the defendant’s be-havior in this case.
Attorney
Suzanne Edwards, who represents one of the defendants, said the
statute was created to server a different purpose. The statute
was designed to preclude defendants in cases involving both murder
and rape, from arguing that the sexual contact occurred after
the murder, and thus, the state’s evidence was insufficient
to support a sexual assault charge, Edwards said.
The
argument has its origins in the case of State v. Holt, 128 Wis.2d
110, 382 N.W.2d 679 (Ct.App.1985). Holt involved a high-profile
case, in which the defendant kidnapped, sexually assaulted, and
murdered an Illinois woman in Wisconsin in 1979. Nevertheless,
an overzealous Illinois prosecutor prosecuted the case in Illinois
state court, and ultimately, the Illinois Supreme Court reversed
the convictions for lack of jurisdiction.
Holt
was then retried and convicted in Wisconsin for murder, sexual
assault and theft. Subsection (7) was not on the books at that
time.
On
appeal, Holt argued that there was insufficient evidence to support
the sexual assault conviction, maintaining that the statute requires
the state to prove that the victim was alive during the intercourse,
and there was insufficient evidence to support such a finding.
The
court of appeals rejected the argument, holding, “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.
According
to Edwards, the legislative history of subsec. (7), which was
enacted in 1986, indicates that this case was the driving force
behind the statute. She said the sole purpose of the statute was
to prevent defendants in rape-murder cases from raising such a
defense; the statute only relieves the State of having to prove
the victim was alive at the time of the attack.
The
defense’s focus is on the word, “victim,” which
they contend contemplates a live person being victimized, rather
than a corpse. The purpose of the statute, according to Edwards,
was solely to deal with the rape-murder scenario, and the statute
contemplates that “victim” means a “person who
dies while being victimized.” It is not intended, Edwards
claimed, to be a general necrophilia statute governing defendants
who had no role in the person’s death.
In
a brief submitted to the court by attorney Roseann T. Oliveto,
who represents another of the defendants, Oliveto contended, “If
the Legislature intended that having sex with a corpse would apply
here it would have been stated. There are many statutes under
the criminal code addressing a corpse and prohibiting conduct
against corpses. The Legislature is quite clear in distinguishing
a victim as defined in chapter 940 as a ‘natural person’
and violations against people who have died, as corpses. Example,
the crime of mutilation and hiding a corpse. Wis. Stat. 940.11,
theft from a corpse, Wis. Stat. 943.20(e).”
Pozorski
said that he expects a final decision from the Department of Justice
on whether the State will file an interlocutory appeal within
a month.
Susan
G. Molini represents the third co-defendant.
