Wednesday, July 9, 2008

Sex With Corpse Is Crime In Wisconsin

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.

(Mike Frisch)

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And what if I state in my will that I hereby consent to sexual intercourse after my death? (But only by named persons, or course.)
In my opinion, imputing any kind of consent or lack thereof to a corpse is absurd. I'm not familiar with Wisconsin law, but could this not be prosecuted under some other statute? (Abuse of a corpse, criminal trespass, illegal disinterment?)

Posted by: nitpicking paralegal | Jul 9, 2008 9:27:59 AM

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