State v. Alexander Caleb Grunke / State v. Dustin Blake Radke, 2008 WI 82, reversing 2007 WI App 198
For Grunke: Suzanne Edwards
For Radke: Jefren E. Olsen, SPD, Madison Appellate
Issue: Whether § 940.225 criminalizes sexual contact or sexual intercourse with a victim already dead at the time of the sexual activity when the accused did not cause the death of the victim.
Holding:
¶1 … The issue presented is whether § 940.225 criminalizes sexual contact or sexual intercourse with a victim already dead at the time of the sexual activity when the accused did not cause the death of the victim. We conclude that it does. …
…
¶25 There is no statutory ambiguity or incompatibility between, on the one hand, a victim being incapable of consent because the victim is dead and, on the other hand, subsection (3)’s requirement that sexual intercourse occur “without the consent” of the victim. In order to achieve a conviction for third-degree sexual assault under Wis. Stat. § 940.225(3), 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.¶26 The defendants’ ambiguity argument with respect to the consent element of the statute suggests that they believe an element of a crime is rendered superfluous merely because it is simple to prove. They are mistaken. An element of a crime is not rendered superfluous because that element might be relatively easy to prove under the facts of a particular case. Rather, an element of a statute is superfluous when it is redundant of some other portion of the statute. See, e.g., State v. Dibble, 2002 WI App 219, ¶15, 257 Wis. 2d 274, 650 N.W.2d 908 (concluding that “reckless” and “utter disregard” are two distinct elements); State v. Dauer, 174 Wis. 2d 418, 431-32, 497 N.W.2d 766 (Ct. App. 1993) (concluding that “verbal, written or printed” threats are not redundant in regard to the crime of extortion). Similarly, no redundancy is created by the “without consent” element of subsection (3).
Lack of consent is an element of necrophilia? Apparently so:
¶27 Moreover, the presence of subsection (7), which states that Wis. Stat. § 940.225 applies whether the victim is dead or alive, does not render the “without consent” element of subsection (3) superfluous. This is so because the statute also recognizes certain circumstances in which consent is “not an issue,” thereby exempting the State from having to prove the lack of consent element in limited circumstances and without removing lack of consent as an element from other provisions. § 940.225(4). The absence of the circumstance of a dead victim from the list of circumstances in which consent is “not an issue” does not cause the lack of consent to become a superfluous element of the crime; rather, the absence merely leaves the element of consent intact. Subsection (7) reinforces that the State must prove that the sexual contact or sexual intercourse occurred without the victim’s consent even though the victim is dead; by the plain meaning of its terms, subsection (7)’s application is not so limited as the defendants contend.
As to which the dissent sagely observes, “I don’t think a corpse can give consent,” ¶48. However, necrophilia supports neither first- nor second-degree sexual assault, ¶30.
