WI- Justices restore sex charges in grave-digging case

7-11-2008 Wisconsin:

Wisconsin Supreme Court overturns lower court, saying the implied intent of statutes forbid sex with a corpse

MADISON, Wis. -- Three Iowa County men who authorities say 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.

Curry dismissed the sexual- assault charge against Nicholas and Alexander Grunke and Dustin Blake Radke, ruling that the statute didn't apply to sex with a corpse. An appeals court upheld Curry's finding that the statute in the case is ambiguous. The court said the statute could be interpreted to make necrophilia unlawful or it could apply only to an assault where the victim is alive at the beginning but dead afterward.

On Wednesday, the state Supreme Court's majority rejected the defendants' argument that conviction requires that the victim withhold consent to a sex act, impossible in this case, as the victim was 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 said 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.

Nicholas Grunke's 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 Tony Pozorski Sr. prosecuted the case and was unavailable for comment. As of late Wednesday afternoon, no court date had been scheduled for the case to resume.

Wisconsin Attorney General J.B. Van Hollen praised the decision.

"Sexual contact without consent is sexual assault, whether the victim is dead or alive," Van Hollen said in a written statement. "That's what the statute says, that's what we argued, and that's what today's decision reinforces. 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. Necrophilia is criminal in Wisconsin."

State Sen. Dale Schultz, said he will withdraw legislation he introduced last year to criminalize necrophilia, as Wednesday's decision made it unnecessary.

According to court documents:

After reading an obituary and seeing the photo of Laura Tennessen recently interred after a fatal motorcycle accident, Nicholas and Alexander Grunke and Radke, 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 the Grunkes and Radke were later charged with damage to cemetery property, and parties to the crimes of criminal damage and attempted third-degree sexual assault.

The family of Tennessen declined to comment on Wednesday's ruling. ..News Source.. by KEVIN MURPHY