Here’s a story I was going to leave alone. But after hearing a talk radio show carry on about it, I decided to chime in. From the Chicago Tribune:
Laura Tennessen case leads Wisconsin to outlaw necrophilia
Now first, let me be very clear that I do not, nor have I ever, endorsed necrophilia. Although, when I saw a picture of the perps I can certainly see why they resorted to it as a dead woman would be the only woman they could get near.
As I said, I heard a bunch of carrying on at a local talk radio show. The gist of the issue for the announcer was that the two dissenting judges were complete idiots for thinking that having sex with a dead person was ok. The problem is, that’s not what the dissenting judges were saying.
The two dissenting judges argued that the law as written did not apply to necrophilia. if you read the statute, Wis. Stat. Ann. § 940.225. Sexual assault, you’ll note that throughout the statute it refers to “person” in a context that assumes the crimes occurred with a person who was alive at some point of the act. Not until the end of the statute do you see this:
(7) DEATH OF VICTIM. This section applies whether a victim is
dead or alive at the time of the sexual contact or sexual intercourse.
The dissenting judges argued that the statue was intended to allow prosecution of a crime where the victim died during the crime or it was impossible to determine when during the crime, the individual died.
The problem that I have with the ruling is two fold. First, the language of the bill is at best, ambiguous. In a 2002 ruling, the Wisconsin Supreme Court talked about ambigous language and how it should interpret law if it exists in a statute:
In contrast, if the language of the statute is ambiguous, the court must resort to judicial construction. Id. at ¶15 (citing Kelley Co. v. Marquardt, 172 Wis. 2d 234, 247-48, 493 N.W.2d 68 (1992)). A statute is ambiguous if it is capable of being understood by a reasonable person in either of two senses. Reyes v. Greatway Ins. Co., 227 Wis. 2d 357, 365, 597 N.W.2d 687 (1999). A statute is not rendered ambiguous, however, merely because two parties disagree as to its meaning. Forest County v. Goode, 219 Wis. 2d 654, 663, 579 N.W.2d 715 (1998). If the statute is ambiguous, we then look to extrinsic factors, including legislative history, and the statute’s scope, context and subject matter, to determine the intent of the legislature. Landis, 2001 WI 86, ¶15.
In fact, even in the current opinion, the Court recognizes there are times where they should look past the plain language of the bill:
While extrinsic sources are usually not consulted if the statutory language bears a plain meaning, we nevertheless may consult extrinsic sources “to confirm or verify a plainmeaning
interpretation
While they did look back at the Legislative notes on the original bill, they focused on what they wanted to see rather than what the “plan meaning” of the Legislative notes were.
Secondly, the same 2002 ruling dealt with what the definition of what a “person” was and the Supreme Court addressed that issue with detail in that decision.
The majority opinion in this case did not address what a “person” is i.e. is a “person” a live person? if not, did the Wisconsin Supreme Court just open the door for a fetus to be a “person?”
In the end, the majority opinion was derisive of those who didn’t see the “plain meaning” of the language:
A reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person
Does that mean that the two dissenting judges are imbeciles?
If the statute was so clear that a “reasonably well-informed person would understand the statute,” why did two lower courts hold otherwise and why did the Wisconsin Legislature spend time on a bill to specifically make necrophilia a crime? Are they all idiots?
I end up agreeing with the dissenting opinion on how the majority reached its conclusion:
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.
In short, it appears that the majority knew what they wanted the outcome to be and interepreted the case to conform with that conclusion rather than interpret the law and turn it back to the legislature for clarification, if necessary.
OK, I’ll admit, I’m not laying awake at night worrying about the next necrophilia case in Wisconsin. However, this is a situation where Conservatives need to be consistent. misuse of a court’s authority, even if the end result is one that you agree with, is a lot like lying; if you get away with it the first time, on a small issue, it’s easier to do it the next time with a bigger issue and the time after that with an even larger issue. If left unchecked this could eventually lead to a court writing Constitutional provisions out of whole cloth!
What? That’s already happened?
