Abuse of a corpse: A brief history and re-theorization of necrophilia laws in the USA
2008; Taylor & Francis; Volume: 13; Issue: 2 Linguagem: Inglês
10.1080/13576270801954518
ISSN1469-9885
Autores Tópico(s)Criminal Justice and Corrections Analysis
ResumoAbstract In September 2006, Wisconsin police discovered Nicholas Grunke, Alexander Grunke, and Dustin Radtke digging into the grave of a recently deceased woman. Upon questioning by police, Alexander Grunke explained that the three men wanted to exhume the body for sexual intercourse. In the Wisconsin state court system, the three men were charged with attempted third-degree sexual assault and attempted theft. None of the men could be charged with attempted necrophilia, since the state of Wisconsin has no law making necrophilia illegal. What the Wisconsin case exposed was the following gap in US jurisprudence: many states have no law prohibiting necrophilia. This article on US necrophilia laws argues that human corpses and the laws that govern the use of dead bodies are uniquely positioned to cause precisely these legal discrepancies since the dead body is a quasi-subject before the law. This examination also presents an argument about one of the fundamental reasons that this gap in US law exists. Specifically, it is argued that the ambiguous juridical standing of the human corpse in necrophilia cases compounds the sexual monstrousness of the necrophiliac and of necrophilic acts. This article is the first part of a much larger study on the dead body and the law. Keywords: necrophiliacorpsesexualitydeviancydeathlaw Notes [1] From the Grant County Sheriff's Department criminal complaint filed on September 5, 2006, in the State of Wisconsin vs. Alexander Caleb Grunke, Nicholas Owen Grunke, Dustin Blake Radtke. DA Case No.: 2006GT001256. Available on the Smoking Gun website at www. thesmokinggun.com [2] Statement of Dustin Radtke during a tape-recorded interview with Grant County Sergeant Detective James E. Kopp. [3] For video of the case's court proceedings see: Reading of the Criminal Complaint at http://video.google.com/videoplay?docid=1935403243530201584 September 15, 2007, Preliminary Court Hearing (where the sexual assault charges are dropped) at http://video.google.com/videoplay?docid=-4548876004565391259 [4] See Wisconsin statute 940.225(7) Death of victim. Available at http://www.legis.state.wi.us [5] See Wisconsin Statute 939.50 Classification of felonies. Available at http://www.legis.state.wi.us [6] Judge Curry's decision to remove the attempted sexual assault charges was appealed by the State of Wisconsin and in July 2007 the Wisconsin Court of Appeals for the Fourth District affirmed Judge Curry's decision that the current law does not cover sexual acts with dead bodies. The written decision by the Wisconsin Court of Appeals contains the following explanation: "While sexual intercourse with a corpse unquestionably presents a case of sexual immorality, the relevant question is whether sexual intercourse with a corpse, unrelated to the individual's death, is an activity the legislature intended to proscribe in a statute geared toward protecting bodily security" (p. 7). The Court of Appeals found that the State of Wisconsin Legislature did not state that necrophilia was part of the original statute. To read the entire Court of Appeals decision see http://www.wicourts.gov/ca/opinion/DisplayDocument.html? content=html&seqNo=29824 The State of Wisconsin appealed the July 2007 decision to the Wisconsin State Supreme Court. On November 5, 2007, the Wisconsin State Supreme Court agreed to review the case. No date has yet been set for the oral arguments. [7] Taken from the September 6, 2006, Press Release: "Schultz to Sponsor Bill Punishing Heinous Act of Sex with Corpse." See Senator Schultz's official website for more information: http://www.legis.wi.gov/senate/sen17/news Senator Schultz has co-sponsored legislation that would make sex acts with a human corpse illegal. The proposed legislation, Senate Bill 247, reads as follows: "SEXUAL ASSAULT OF A CORPSE. Whoever has sexual contact or sexual intercourse with a corpse is guilty of a Class G felony. For the purpose of this subsection, a 'corpse' is the body of a human being who, at the time of the sexual intercourse or sexual contact, had been declared dead by a physician, coroner, or medical examiner." To read the legislative history for this bill see http://www.legis.state.wi.us/2007/data/SB247hst.html [8] Ironically, the state of Wisconsin does have a law that encompasses necrophilia but it only involves representations of necrophilia. Wisconsin statute 944.21 Obscene material or performance states: "The legislature intends that the authority to prosecute violations of this section shall be used primarily to combat the obscenity industry and shall never be used for harassment or censorship purposes against materials or performances having serious artistic, literary, political, educational or scientific value. The legislature further intends that the enforcement of this section shall be consistent with the first amendment to the US constitution, article I, section 3, of the Wisconsin constitution and the compelling state interest in protecting the free flow of ideas." See http://www.legis.state.wi.us. As result of this law, any obscene material that contains "sexual conduct" includes: 944.21(2)(e) "Sexual conduct" means the commission of any of the following: sexual intercourse, sodomy, bestiality, necrophilia, human excretion, masturbation, sadism, masochism, fellatio, cunnilingus or lewd exhibition of human genitals." See http://www.legis.state.wi.us Had Nicholas Grunke, Alexander Grunke, and Dustin Radtke created a representation of necrophilia (a photo, a video, a painting, etc.) and then publicly displayed it they could have been charged with an obscenity crime. The punishment for this initial offense would have required them to forfeit the representation to State of Wisconsin authorities. In the event they would have used Laura Tennessen's corpse in the representation then an obscenity charge of representing necrophilia might have been possible. [7] A constant question that comes up is how many documented cases of necrophilia have actually occurred either globally or in the USA. The research into this question is quite thin and one of the only recent studies to examine necrophilia cases was done in 1989. Jonathan P. Rosman and Phillip J. Resnick published their study, "Sexual Attraction to Corpses: A Psychiatric Review of Necrophilia" in The Bulletin of the American Academy of Psychiatry and the Law. The study examines 122 cases of necrophilia, either reported and/or confirmed from all over the world. A. A. Brill also comments on the frequency of necrophilia cases in a 1941 article, appropriately entitled "Necrophilia." Brill states: "I said in starting that necrophilic acts were known as a sporadic occurrence from the beginning of history. From my own investigation I dare say they happen more frequently than is known. That we hear so little about them is due to the abhorrent nature of the perversion. People dislike to report them. In discussing this problem recently with Inspector John J. O'Connell of the New York City Police Academy, he told me of two cases that came to his knowledge within the last few months, but which were never reported. Now and then, the situation is of such a nature that it cannot be kept from the public" (Brill, Citation1941, pp. 69–70). [10] Foucault, 2003. [11] Hawaii Statute 711–1108 Abuse of a corpse. Available at http://www.capitol.hawaii.gov [12] Massachusetts, 2006. [13] Mississippi, 2006. [14] This is common wording for many of the Abuse of a Corpse laws and is not taken from any one specific law. [15] See http://www.ohio.gov [16] The use of the abuse of a corpse law, with its broad and ambiguous language, can turn in many directions. A recent use of the Ohio law, in a non-sex related case, came in October 2001. The case centered on Cincinnati, Ohio photographer Thomas Condon, who was charged with multiple counts of gross abuse of a corpse after he took pictures of bodies in an Ohio county morgue. Condon had permission from local authorities to take the photographs but did not have the families' permissions. Most of the photographs were close-up shots of bodily appendages (a hand, a leg, etc.) and not easily identifiable body parts, such as a face. He also placed objects, such as a doll, in the hand of one body. Condon intended to digitally alter the photographs before putting them on display in a planned gallery exhibition, making sure that any identifiable marks (tattoos, obvious scars, etc.) on the bodies were removed. Cincinnati police arrested Condon after he dropped the film off for developing and the employees of the photo developer handed the photos over to the authorities. Condon was sentenced to 2½ years in the state penitentiary and served a year before being released. For more information on the Thomas Condon case see the following at http://citybeat.com/2002-04-18/cover.shtml and a segment on the National Public Radio Program Radio 360 at http://www.studio360.org/yore/show112004.html [17] Krafft-Ebing, 1933. [18] Many thanks to Mary Roach, who in her book Stiff: The curious lives of human cadavers (2003) briefly mentioned both the Minnesota and Nevada laws (p. 43). [19] See http://www.state.mn.us [20] See http://www.leg.state.nv.us [21] Ochoa & Newman Jones, Citation1997, p. 565. [22] See http://www.state.id.us [23] For more information see UK Office of Public Sector Information at http://www.opsi.gov.uk [24] Full a complete listing of the Explanatory Notes see www.opsi.gov.uk/acts/en2003/ukpgaen_20030042_en.pdf [25] A 2007 murder trial in the UK involved a case of necrophilia. In December 2007, Craig Bidgway was convicted for the murder of his wife Danielle Birda and the attempted murder of their son William. Bidgway confessed during a police interview to murdering his wife and to then having sex with Danielle Birda's dead body. His taped confession was played for a jury during the trial in the Cardiff Crown Court. On the tapes, Bidgway explained that, "She was dead and I made love to her … I wanted to show her how much I loved her." Interestingly enough, only The Sun and the Daily Telegraph reported the sexual offense committed by Bidgway. Most other UK publications only discussed the murder and attempted murder. It does not appear that prosecutors used the Sexual Offences Act for this case. For articles discussing the necrophilic aspects of the crime see http://thesun.co.uk/sol/homepage/news/article558982.ece and http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2007/12/05/nstrangle105.xml [26] See the following articles listed in the References: Brill (1941), Brownlie (Citation1963), Ehrlich et al. (Citation2000), Klaf & Brown (Citation1958), Price (Citation1963), and Rosman & Resnick (Citation1989). [27] Ochoa & Newman Jones, 1997. [28] Ochoa & Newman Jones, Citation1997, pp. 543–566. [29] Gilligan & Stueve, 1995. [30] Foucault, 2003. [31] The most recent and complete set of mortality statistics for the USA come from 2004. During that year, 2,397,615 individuals were reported dead. That means roughly 6,568 dead bodies were present on any given day across the USA in 2004. These numbers can be found at the National Center for Health Stastistics at http://www.cdc.gov/nchs/fastats/deaths.htm
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