On Friday, Sept. 15, 2006, Nicholas, Alexander, and Dustin were brought before Grant County Circuit Court Judge George S. Curry on charges of attempted theft and attempted third-degree sexual assault. During the proceeding, Grant County Assistant District Attorney Anthony J. Pozorski, Sr., entered transcripts of Dustin's interview as evidence against the three men. Afterwards, the men's defense attorneys argued that the sexual assault charges had to be dismissed, because the law reads that the victim must be alive or that the death must occur as a result of a sexual assault.
Judge Curry ruled in the defense's favor, and the charges of attempted sexual assault were dropped. Instead, the judge recommended the three men be charged with criminal damage to property.
An appeals court later upheld Curry's ruling, however the State of Wisconsin appealed and on Mar. 5, 2007, Assistant Attorney General William Ganser argued that the assault statute should apply regardless of whether or not the victim was killed before or after the assault.
"That distinction [whether the person is dead] doesn't appear in the statute," Ganser said.
Suzanne Edwards, attorney for Nicholas Grunke, disagreed.
"This case involved a body not victimized by the defendant," Edwards said. "When a buried corpse is dug up and (a sexual act occurs), the statute doesn't apply."
The court took both attorneys' arguments under advisement but delayed making an immediate ruling. It was not until last Wednesday that the court finally decided to announce their verdict.
"A reasonably well-informed person would understand the statute to prohibit sexual intercourse with a dead person," read the majority opinion, which was authored by Justice Patience Roggensack and three other justices. "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."
Following the verdict, Wisconsin Attorney General J.B. Van Hollen issued a written statement, praising the Supreme Court's decision.
"Sexual contact without consent is sexual assault, whether the victim is dead or alive," Van Hollen said. "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."
As a result of Wednesday's ruling, the 2006 case will be sent back to Grant County Circuit Court. An official court date has not been set; however Nicholas Grunke, Alexander Grunke and Dustin Radke will most likely be arraigned sometime this week.
Only 20 other states currently have laws on the books that specifically outlaw sexual intercourse with a dead body.
Wisconsin Supreme Court Hears Arguments in Necrophilia Case
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