Thursday, November 30, 2006

Deer Judge: You Boned It. (Part 1)

The Judge's ruling in the dead deer sex case came out last week and I've been too busy to write about it.

In fairness to Judge Lucci, as a response to the brief filed, the ruling's not that bad. The motion was a quick one and the argument had to do the the Websters definition of animal specifying a living being. The ruling was equally hastily thought out and was essentially:

1) we shouldn't be bound by a dictionary definition, we need to use a "common and ordinary meaning of the word based on common usage and understanding" which I define as (essentially) "it's an animal so long as there is a recognizable animal "sex organ, mouth or anus""

and
2) since the pertinent chapter of the Wisconsin statutes criminalizes sexual activity "outside the institution of marriage" and what Brian Hathaway did was sexual activity outside marriage, what he did must therefore have been intended by the legislature to be covered by the statue.


But a Judge has a duty to the Law, not just to react to counsel's arguments. If both counsel are wrong and are arguing the wrong law, the Judge should know (or find) and follow the law, even if the parties don't cite it.
Since this appears to be an issue of first impression, it's curious that the Judge failed to do that. (Then again, maybe it's because it's an issue of first impression that he ostriched it. - But that leads to another question: if you don't know the law, won't research the law, and won't rule on the law, why are you making the big bucks?)

So what should the Judge have done? (and maybe counsel, too)
1. Hmm. Interesting issue - The statute is silent and there aren't any on-point cases. maybe I should look for similar statutes and see how they are treated. Maybe I'll look to see how the statutes treat sex with humans and sex with dead humans?

A. With a little bit of searching, one would find Wis. Stat. 940.225 (at page 8) , which punishes sexual assault. With a little bit more searching, one would find paragraph 7, which specifies "This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse" AHA! The legislature noted an ambiguity and cleared it up, yet did not do so for another sex offense, bestiality, at 944.17 (at page 1)

B. Going a little further afield, Theft of property "taken from the person of another or from a corpse" is a felony. Wis. Stat. 939.20(3)(e) (at page 7) (emphasis mine) Once again, the legislature seems to know the difference between a live person and a dead person and legislates accordingly.

C. So we see that the Wisconsin legislature understands that they need to specify whether they meant a statute to apply to the dead, not only with regard to general criminal offenses, but specifically with regard to sex offenses. If the legislature knows how to, and does, write laws that specifically include the dead, that means that when the legislature does not include the dead, they aren't meant to be included. If the Legislature wants to, they can change the law, and they probably will. Then and only then will having sex with a dead animal be illegal in Wisconsin.

Preview of part 2:

2. Hmm, maybe there is another, more studied area of law that addresses the legal implications of life and death? Perhaps a question having to do with when a fetus becomes a person/victim of an offense under the law? Perhaps there's been more written on that issue? Maybe even an ongoing national and states-wide debate on those issues? Well, actually, in Wisconsin that's a bad idea. The caselaw is an absolute mess of contradictory, Monty Python worthy nonsensical, results oriented junk.

Jack

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