[Parental Discretion Advised]
Necrophilia is the description of performing a sexual act upon the corpse of dead human remains. Needless to say, this sort of behavior has been frowned upon in most societies throughout the ages.
It might be hard to believe, but there was actually no law against necrophilia in California until relatively recently. A case in 2003 prompted the state legislature there to change things. A transportation worker for a morgue in that state ended up sexually assaulting the corpse of a 4-year-old girl who had died of the flu. His act was caught on security cameras in the building.
Authorities began looking at the penal code, only to discover that there was no law against necrophilia on the books in California. Prosecutors eventually ended up charging him with “felony mutilation of human remains” instead. He received a one-year jail sentence, minus time served.
A bill was introduced in the California legislature that year to specifically make necrophilia a crime, but it ended up stalling in committee. Another high-profile necrophilia case in the state the following year convinced the legislature to pass a bill outlawing the practice. It was signed into law in 2004.
Section 7052 of California’s Health and Safety Code now reads: “Every person who willfully…commits an act of sexual penetration on, or has sexual contact with, any remains known to be human…is guilty of a felony.”
The maximum sentence for violating this law is up to 3 years in prison, but there are current efforts by the legislature to eventually increase the penalties for necrophilia in California.
Wide variety of punishments
In the other states that have specific laws against necrophilia, the punishment can vary quite dramatically. In Nevada, for instance, the maximum punishment can actually be up to life in prison with the possibility of parole, plus a fine of up to $20,000. In Minnesota, however, the punishment for the same act has a maximum sentence of up to 1 year in prison and a $3,000 fine.
Few crimes have such a wide spectrum of punishments between states as necrophilia. Perhaps this is due the tension between the different values that society weighs when judging crime. On the one hand, necrophilia deeply offends a core set of sacred values that many in society hold, defiling an innate respect for the dead. Certainly the crime would be psychologically jarring to the living relatives of the deceased. On the other hand, some might argue that since there is no actual harm done to a living person, it ought not to be considered as serious crime as others such as rape, assault and robbery, etc. The end result is that some states may look upon necrophilia as a serious felony that ranks among the most heinous of moral crimes, while others may treat it as a mere misdemeanor worthy of a stern warning, but little actual punishment in terms of incarceration.
States may interpret their laws broadly in order to prevent acts of necrophilia.
Many states still don’t have laws on the books specifically banning necrophilia. However, their law enforcement often suggests that this is a result of legislative oversight rather than a conscious suggestion that it is to be tolerated. More often than not, states that don’t have laws against necrophilia will tend to interpret other criminal laws on their books broadly enough to prohibit sexual interplay with corpses.
One case in point took place in Wisconsin which did not have a law against necrophilia in 2006 when a case challenged their courts.
Two twin brothers and a friend of theirs had traveled to a local cemetery to dig up the body of a 20-year-old girl who had recently died in a motorcycle accident. One of men had seen a photo of the girl that was printed with her obituary in the local paper. He asked the others to help dig up the body so he could have sex with it.
The three men went to the cemetery with shovels, a crowbar, and a box of condoms, which they had purchased that evening on their way to the cemetery. They used shovels to reach the coffin in her grave site, but eventually abandoned their plan and were caught by authorities.
All of them were arrested on suspicion of digging up the corpse of a woman in order to have sex with it. Having no laws on the books against necrophilia per se, Wisconsin prosecutors charged them with attempted third-degree sexual assault.
The lower courts threw out the charges against them, noting that Wisconsin state law didn’t criminalize necrophilia, and they felt that labeling their actions as an attempted “sexual assault” was too much of a stress. The result was that Prosecutors were stuck with charging them with the far less serious crime of “attempted theft of the corpse”.
The controversy made it up to the Wisconsin Supreme Court in the 2008 case of State of Wisconsin v. Grunke.
In a 5 to 2 decision the Wisconsin Supreme Court Justices ruled that the original charges of attempted sexual assault should be reinstated against the defendants. They declared that people can still be charged with sexual assault, even when their victims are dead.
The majority reasoned that Wisconsin law stated that “[w]hoever has sexual intercourse with a person without the consent of that person is guilty of a felony.” In this case, the woman in question did not “consent” to any sexual acts – therefore the law against sexual assault applies here. The court wrote, “The State must still prove the element ‘without consent’ beyond a reasonable doubt; that endeavor is subject to a simple proof when the victim is a corpse.”
[Prosecutors had argued that to interpret the law otherwise would prevent them from bringing sexual assault charges in cases where a rapist manages to kill his victim before sexually assaulting her.]
Two judges on the panel wrote a dissenting opinion which stated in part:
“The majority reaches a desired result through an undesirable analysis. I acknowledge that this is heinous conduct and good public policy would indicate that this conduct should be criminalized….[I]t is always suspicious to me when an opinion asserts that the meaning [of the law] is plain and then proceeds to spend a multitude of pages explaining it….It is not at all ‘plain’ how to apply the concept of consent to cases involving corpses….Under the majority’s ‘plain’ meaning interpretation, prosecutors must now prove beyond a reasonable doubt that the corpse did not consent to intercourse. This makes no sense to me and I cannot imagine that it is what the legislature intended.”
Despite the reasoning of the dissenting justices, the majority prevailed. The charges of attempted sexual assault against the defendants were reinstated. The Wisconsin v. Grunke case provides a good illustration of a state being able to find ways to punish behavior that society considers to be abhorrent, even if there is no specific law on the book that directly relates to the set of facts at hand.
So even if you live in a state that has no explicit laws against necrophilia, think twice before you decide to engage in such acts (and please consider seeing a psychiatrist, in addition to a good criminal attorney).
[Note from HandelontheLaw.com: This article is to be used as an educational guide only and should not be interpreted as a legal consultation. Readers of this article are advised to seek an attorney if a legal consultation is needed. Laws may vary by state and are subject to change, thus the accuracy of this information can not be guaranteed. Readers act on this information solely at their own risk. Neither HandelontheLaw.com, or any of its affiliates, shall have any liability stemming from this article.]