JONATHAN TURLEY

The Wisconsin Supreme Court reversed a lower court and reinstated the criminal case of sexual assault against win brothers Nicholas and Alexander Grunke and Dustin Radke. The lower court had ruled that Wisconsin law does not expressly make necrophilia a crime.

The decision was 5-2 with Justice Patience Roggensack, writing a majority opinion with three other justices, ruling that assault occurs where sexual intercourse occurs without consent and the dead cannot consent. “A reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person,” she wrote.

Actually, there is a legitimate question as to the applicability of assault as opposed to a statute that directly prohibits necrophilia. The victim is a corpse, not a person. Once you die, there is a change in legal status. For example, you can defame the dead and a corpse can be harvested for parts. The men now face up to 10 years in prison if convicted.

Obviously, few people are sympathetic with the men, who can be charged with criminal trespass and other crimes. They went into a cemetery in 2006 to dig up the body of a 20-year-old woman who died a week earlier in a motorcycle crash. Only the concrete lid prevented them from carrying out their intention to have sex with the corpse.

The trial court decision was upheld on appeal — holding that the law did not expressly cover necrophilia. I find those opinions persuasive. A host of other crimes are implicated in this conspiracy, but assault is not a clear fit.

For a copy of the opinion, click here.
For the full story, click here.