Wednesday, July 9, 2008
Not a legal profession case, but of possible interest is a decision issued today by the Wisconsin Supreme Court holding that the attempted disinterment of a corpse for sexual purposes violates criminal law:
In sum, by its plain terms, Wis. Stat. § 940.225 prohibits the conduct that the defendants are alleged to have attempted. Section 940.225(3) provides that "[w]hoever has sexual intercourse with a person without the consent of that person is guilty of a Class G felony," and § 940.225(7) provides that "[t]his section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse." The language of the statute is clear on its face. A reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person. In addition, the element of consent is not rendered superfluous by our interpretation. The State is obligated to prove beyond a reasonable doubt that the sexual intercourse was attempted without the victim's consent. Simplicity of proof does not make an element superfluous. (citation omitted). Furthermore, applying the plain meaning of § 940.225 does not create absurd results. It is not absurd that one who sexually assaults a dead person could not be punished for first-degree or second-degree sexual assault; such punishments are simply factually unavailable in cases in which the victim is a dead person. Finally, the legislative history verifies that the plain meaning of § 940.225 is not so limited as the defendants assert. Accordingly, the defendants may be charged with attempted third-degree sexual assault pursuant to § 940.225(3).
A dissent concludes that the majority reaches a "desired result through an undesirable analysis" and concludes:
The language of the statute is far from "plain." The majority's interpretation requires prosecutors to prove beyond a reasonable doubt that a corpse did not consent, and it renders subsection (7) superfluous, neither of which were intended by the legislature. Likewise, the legislative history indicates that the legislature intended § 940.225(7) to apply to cases involving murder and sexual assault, and not to cases of necrophilia. I therefore respectfully dissent.