Wisconsin law bans sex with dead bodies, the state Supreme Court ruled Wednesday in reinstating charges against three men accused of digging up a corpse to have sex with it.
The court waded into the grisly case after lower court judges ruled nothing in state law banned necrophilia. Those decisions prompted public outrage in Wisconsin and on the Internet, where one blogger wrote: "Doing the dirty with the dead OK in Wisconsin."
Not anymore, the court ruled in a 5-2 decision.
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.
The decision brings Wisconsin's law in line with more than 20 other states who prohibit necrophilia or the abuse of a corpse, according to the National Conference of State Legislatures. California joined that group in 2004 after prosecutors said they couldn't bring charges in some cases without an official ban.
The law in Wisconsin had been murky, and two dissenting justices insisted Wednesday that lawmakers did not mean to ban necrophilia but to allow assault charges when someone was raped and then killed.
The ruling reinstates attempted sexual assault charges against twin brothers Nicholas and Alexander Grunke and Dustin Radke, all 22. They face up to 10 years in prison if convicted.
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.
The men were discovered by a police officer responding to reports of a suspicious vehicle in the cemetery and charged with attempted sexual assault and theft.
A judge dismissed the assault charges, saying Wisconsin law does not criminalize necrophilia. An appeals court upheld that decision, ruling state law was ambiguous on that point but the most reasonable explanation was that it did not.
Those decisions were wrong, Roggensack wrote, because the law clearly says assault victims can be dead or alive.
Attorney General J.B. Van Hollen, whose office represented prosecutors in the appeal, praised the decision.
"Words matter and the Legislature chose its words carefully to extend the sexual assault law to those heinous circumstances where a dead person is sexually assaulted, whether or not the defendant killed the victim," he said. "Necrophilia is criminal in Wisconsin."
In a dissent, Justice Ann Walsh Bradley called the conduct heinous and said it should be banned for public policy reasons. But she said lawmakers did not do that when they wrote the law in question in 1986.
She said the law was meant to allow prosecutors to bring sexual assault charges in rape-murder cases when they could not prove whether the victim was alive at the time of the rape. That's the same conclusion reached by the lower court judges, who she noted were "reasonably well-informed."
Jefren Olsen, a public defender who represented Radke, said he agreed with Bradley's dissent and the majority opinion was "dead wrong."
"Obviously, the facts are rather notorious and not the easiest to deal with," he said. "I assume that had some impact."
Suzanne Edwards, a lawyer representing Nicholas Grunke, said she was disappointed in the decision. The men will be arraigned on the charges and have a chance to plead not guilty, she said, emphasizing the prosecutors' contentions were only allegations right now.