Justices say men who allegedly dug up corpse for sex can be prosecuted
Three Iowa County men who allegedly tried to dig up a grave in a Cassville cemetery in order to have sex with a recently interred woman can be prosecuted for attempted third-degree sexual assault, the Wisconsin Supreme Court ruled Wednesday.
By a 5-2 vote, the state's high court overturned a ruling by Grant County Circuit Judge George Curry and an Appeals Court decision, which had found that state statutes didn't permit a sex assault prosecution when the accused didn't cause the victim's death.
According to court documents:
After reading an obituary and seeing the photo of Laura Tennessen recently interred after a fatal motorcycle accident, Nicholas Grunke, Alexander Grunke and Dustin Radke, all 22, went to the St. Charles Cemetery on Sept. 2, 2006, to dig up Tennessen's remains so Nicholas could have sex with the corpse. While Alexander stood watch, Nicholas and Radke dug into the victim's grave, uncovering the top of the concrete vault, which they were unable to pry open. A car then drove into the cemetery, and the three men fled leaving their car behind.
After police responded to a suspicious vehicle report, Alexander was questioned near the vehicle. Alexander confessed the next day, and then all three were later charged with damage to cemetery property and being parties to the crimes of criminal damage and attempted third-degree sexual assault.
Curry dismissed the sexual assault charge, ruling that the statute didn't apply to sex with a corpse. An appeals court upheld Curry, finding that the statute in the case is ambiguous as it could be interpreted to make necrophilia unlawful or apply only to an assault where the victim is alive at the beginning but dead afterward.
On Wednesday, the court's majority rejected the defendants' argument that conviction requires the victim withhold consent to a sex act, impossible in this case, as the victim was already dead. Instead, the "without consent" element of the offense is proven when the victim is a corpse, wrote Justice Patience Roggensack.
"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," Roggensack wrote in the 34-page opinion.
In her dissent, joined by Justice Louis Butler, Justice Ann Bradley wrote that Curry and the appeals court were "reasonably well-informed persons" who looked at the statute and unanimously concluded it was ambiguous and didn't outlaw the "heinous conduct" involved in the case.
"The legislative history indicates that the Legislature intended (the statute) to apply to cases involving murder and sexual assault, and not to cases of necrophilia," Bradley wrote.
Jefren Olsen, one of two attorneys to argue the case for the defendants, called the majority opinion "dead wrong as it makes the entire statute superfluous."
"This court said the Legislature was wrong in the 1980s when it amended the statute making sex with a corpse unlawful as it was always unlawful so that section" of the statute is unnecessary, Olsen said.
While allegations of necrophilia are "disturbing," Olsen said Wednesday's decision was a straightforward legal analysis devoid of sentiment in sharp contrast to the emotion displayed when the case was argued before the court.
"The emotions were palpable to me during orals; you could see how it affected people," he said.
Nicholas' attorney, Suzanne Edwards of Dodgeville, said she is able to focus on her client's rights and not the horrific nature of the allegations.
"I'm not making a moral assessment when I defend my clients. I don't judge them by the allegations. You can't be a defense attorney and do that. My role is to make sure the state is following the law and I plan to defend my client against these unproven allegations," Edwards said.
The decision returns the case to Grant County Circuit Court. Assistant District Attorney Anthony Pozorski Sr., who was assigned the case, wasn't available for immediate comment.
State Sen. Dale Schultz, R-Richland Center, said he will withdraw legislation he introduced last year to criminalize necrophilia as Wednesday's decision made it unnecessary.
