Wisconsin must be a tough place to get a date.  From the Chicago Tribune,

Armed with shovels, a crowbar and a box of condoms, the men went to a cemetery in Cassville in southwestern Wisconsin in 2006 to remove the body of a 20-year-old woman killed the week before in a motorcycle crash, police said.

One of them had seen an obituary photo of the pretty nursing assistant and asked the others for help digging up her corpse so he could have sexual intercourse with it, prosecutors said. They used the shovels to reach her grave but were unable to pry the concrete vault open and fled after a car drove into the cemetery.

So there are sick people in the world.  Some really sick.  It’s beyond the ability of normal people to comprehend what could have possibly motivated these fine fellows to do this.  Some may attribute it to generational issues, but this one is off the charts.

The defendants were charged with attempted sexual assault.  The charges were dismissed.  It appeared that there was no law in Wisconsin that made it a crime to attempt to have sex with a corpse.  Wisconsin was necrophilia heaven, if such a thing could exist. 

There can be no reasonable person who does not believe that necrophilia is a horrible, disgusting, despicable act, a crime against nature.  But to be a crime against man requires a law.

The problem is that Wisconsin had no law prohibiting sexual acts with dead people.  This proved too embarrassing to the Supreme Court of Wisconsin, compelling them in a 5-2 decision to hold that this was a crime because the dead woman was incapable of consenting to the sexual act. 

Justice Patience Roggensack, writing a majority opinion with three other justices, said state law bans sexual intercourse with anyone who does not give consent whether a victim is dead or alive at the time. Dead bodies obviously can’t give consent, she said.

“A reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person,” she wrote.

This is a prime example of truly bad, result-oriented reasoning.  Notwithstanding the salacious nature of the case (which is precisely the sort of case that gives birth to bad law), the decision is instructive for what courts should never do.

On its surface, the Supreme Court’s rationale is absurd.  If “a reasonably well-informed person” would read the statute as prohibiting sex with a corpse, then the trial level judge who dismissed the charge, and the judges on the intermediate level appeals court that sustained the dismissal, are by definition unreasonable and/or poorly-informed people.  Did the Wisconsin Supreme Court intend to say that?  That’s a bunch of black robes to be hung up, since they should no longer qualify to sit in judgment, not to mention hold a law license, if they are neither reasonable nor well-informed.

If a whole passel of judges don’t understand a statute to prohibit this conduct, how can the court hold the defendants to such an understanding?  This is basic due process; a statute must provide notice of the prohibited conduct. 

But there is a deeper failing in this decision.  While the Wisconsin Supreme Court focused on the question of whether a corpse can give consent (both an absurdity by definition and facile solution when faced with a hard choice), they failed to consider the far broader ramifications of the definition of a “person”. 

If the word “person” is to include corpses, it opens a wide world of criminal conduct that no one intends.  Consider the criminal liability of the anthropologist in Wisconsin, messing around with people’s bones.  A “person” can be the victim of a homicide.  A corpse cannot, at least before this decisions.  What now?

There should certainly be a crime of desecrating a corpse and necrophilia.  But that is something for a legislature to do, not a court by disconnecting language from meaning.  A corpse is not a person.  A person is alive.  A corpse is not.  To borrow from the court, no reasonably well-informed person could disagree with this proposition.

None of this escaped the notice of dissenting Judge Ann Walsh Bradley, who adds, perhaps with a touch of sarcasm, that it’s always dubious when a court holds something “plain” and then requires a multitude of pages to explain how “plain” it is. 

It’s understandable that the judges of the Wisconsin Supreme Court should want to appease the citizens and find a way to hold Grunke and his pals accountable.  It offends sensibilities to do otherwise.  But that’s what the law demands at times, and the Supreme Court could have just as well put the ball in the legislature’s court to enact a law that made the conduct criminal.  Instead, it sacrificed reason and law to achieve the desired result.

This was one sick case to begin with.  Now, it’s a sick case that shows everyone how bad decisions are made.  This is a bad one all around.