The Volokh Conspiracy

[Hathaway's] argument that having sex with a dead deer does not violate the statute is a nonjurisdictional argument.

Just goes to prove that the law can take any subject and make it incredibly droll. Nonjurisdictional argument, indeed.

well, it's a cinch he made double sure he wasn't going to get any backtalk.

And, of course, adding Sadism to the Bestiality/Necrophilia mixture would just be beating a dead horse.

What is the age of consent for a dead deer in Wisconsin?

supersadomasochisticnecrobestiality
is when you get a hard-on making lassie a fatality!

I thought that all a "no contest" plea did was admit to the facts of the case, and nothing more. That is, you're admitting to the facts laid out in the charging document. So, in this case, that would be admitting that he did have sex with the dead dear. But I thought the plea still left open the question of whether the law itself was violated (that is, whether the acts admitted to actually violated the law).

You have it completely backwards. The whole point of pleading "no contest" is to handle the case where the defendant denies the facts of the case but realizes that no defense is possible.

And, of course, adding Sadism to the Bestiality/Necrophilia mixture would just be beating a dead horse.

Beating off a dead horse, you mean.

nolo pleas are the same as guilty pleas...except the facts cant be used against you in civil trial.

you have no right to plead nolo...and the judge must accept that neither a not guilty or guilty plea would be appropriate.

Ok, it looks like we have conflicting views regarding what can be done with the facts of the case. The "special feature" of the "no contest" is, as already stated by George Weiss, that the facts admitted to in the criminal case cannot be used in any subsequent civil case. But that doesn't address the issue of admitting the facts in the original criminal case.

I'm wondering if this may differ depending on the state. Here's part of what the Ohio Statutes say about "no contest" pleas:

A plea to a misdemeanor offense of "no contest" or words of similar import shall constitute a stipulation that the judge or magistrate may make a finding of guilty or not guilty from the explanation of the circumstances of the offense. If a finding of guilty is made, the judge or magistrate shall impose the sentence or continue the case for sentencing accordingly. A plea of "no contest" or words of similar import shall not be construed as an admission of any fact at issue in the criminal charge in any subsequent civil or criminal action or proceeding.

That does not appear to agree what happened in the dead deer case.

One word--"eeewwwww."

(Or should that be "ewe" in this case?)

I've run into this problem before -- OK, not exactly this problem. It didn't involve a deer, living or dead. But it did involve a guilty plea to conduct that was not a crime. In this case the defendant pleaded guilty to possessing a precursor element with the intent to manufacture methamphetamine on or about a date when it was not criminal to possess that precursor element alone (You had to possess two precursor elements together with the intent to manufacture). The law changed after the date of the charged incident, and he was indicted under the new law that made it criminal to possess just the one precursor chemical. Just one small ex post facto problem, huh? But he plead guilty, so what could be done?

I was clerking for the appellate court and ran up against case law that said charging someone with something that wasn't an offense wasn't jurisdictional. Could have knocked me over with a feather -- here I am, a brand new lawyer, and the law couldn't or wouldn't fix this mistake?!

My judge was willing to fix it, though, regardless, and we reversed the conviction -- and managed not to get reversed on appeal. I guess the higher court, too, thought it was unjust.

And this was in Texas, not known for liberal judges . . . .

I really wish this case could be appealed to the Supreme Court and heard on the same day as the 5th Circuit 'dildo' decision! Getting in to see the oral arguments would be a prize greater than Super Bowl tickets.

Just FYI,
Rules regarding no contest pleas are state by state. In my jurisdiction they can be used against you in civil cases, in almost all circumstances. (What's the difference between no contest and guilty you ask? Not a whole hell of a lot). And you don't need the judge's permission to plead no contest. You can plead as a matter of right. BTW, I have heard that in Ohio pleading no contest automatically preserves all appellate issues. Not so here...Here is AK for anyone interested.

mls wrote:

I've run into this problem before -- OK, not exactly this problem. It didn't involve a deer, living or dead. But it did involve a guilty plea to conduct that was not a crime.

A similar situation has been in the news quite a bit lately -- the saga of Sen. Larry Craig of Idaho. I very much doubt that what Craig did was a crime; it certainly does not seem to violate the particular statute under which he was charged. Moreover, the statute strikes me as both unconstitutionally vague and violative (at least as applied in this case) of Lawrence v. Texas. Craig raised some of these arguments long after he had pled guilty. So far, the courts have held him to his plea bargain.

A twist in Craig's case is that he pled to disrderly conduct, rather than to the original charge of lewd conduct. The statute under which he pled probably doesn't have the same defects, so attacking the plea would be harder than attacking a plea to lewd conduct.

But even then, there would be enormous hurdles to overcome. Here in California a defendant who pleads guilty cannot challenge the constitutionality of the statute (or the sufficiency of the evidence, which is what one must argue when claiming that the alleged acts don't fit the definition of the crime) on appeal unless he gets a certificate of probable cause from the trial judge before the deadline for filing a notice of appeal has passed. Judges are not required to issue such certificates, and even when they do the process takes time. Without such a certificate an appeal like Craig's (or mls's) would be doomed. I don't know whether Minnesota (where Craig was charged) has a similar rule, but my guess is that it does.

I think I have this figured out, at least sufficiently to satisfy me. Here in Ohio, the Ohio Rules of Criminal Procedure say

The plea of no contest is not an admission of defendant's guilt, but is an admission of the truth of the facts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.

However, another provision says

The plea of no contest does not preclude a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress evidence.

Wisconsin seems to have no similar provision. Thus, the Wisconsin court was able to say

We conclude that by pleading no contest Hathaway
waived his argument on the motion to dismiss.

In Ohio, he would have still been able to challenge the conviction based on the motion to dismiss.

Somehow I knew this post involved Wisconsin from the title alone...

In WI, btw, a no-contest plea is functionally the same as a guilty plea except there is no admission of civil liability. When you make a no-contest plea, you are actually found guilty by the judge.

Yet another tragic victim of our puritan police state's effort to punish victimless "crimes." Support the National Organization for the Reform of Necrophilia Laws http://www.nornl.org.

Smallholder,

Since the dead deer case happened almost immediately after he was released from prison on the dead horse case, I wouldn't say he learned his lesson.

"When you make a no-contest plea, you are actually found guilty by the judge."

Not so in Florida at least. A "friend of mine" plead no contest to a charge of under-age drinking, and the outcome was "adjudication witheld." He learnt his lesson though, and was no serial re-offender (admittedly, he turned 21 soon after...)

ChuckC

The civil standard for the Deer's estate would be the prepondeerance of the evidence.

I'm always afraid of what news I'll read from the state home to Ed Gein and Jeffrey Dahmer. But this is just a drop in the buck-et.

The real danger here: If this case becomes precedent, by the slippery slope argument Portnoy would be liable for necro-bestiality for what he did to that slice of liver.

I think the more interesting question would be if the state, under Lawrence v. Texas, can constitutionally ban sex with corpses or dead animals. Assuming, I suppose, that the corpse, when it was alive, gave consent to be treated in such a manner once dead. Otherwise, one could argue that the state had a rational interest in protecting respect for the dead.

I assume he learned the lesson of not shooting other people's animals and instead settled for roadkill, which violated no property rights.

I don't know what Wisconsin law is, but don't most states define wild animals as belonging to the state? Hunters get to hunt them under the conditions of a hunting license (except for some categories of animals that are unlicensed, like rats), but I think they animals technically belong to the state until legally hunted.

Well, Mr. Cramer, I would say that under Lawrence, a state could still ban non-consensual necrophilia on the grounds that people don't want people having sex with them when they're dead, any more than they like being raped. What, under Lawrence, I tend to think would be unconstitutional, if you really take Lawrence to its logical conclusions, would be a statute that banned consensual necrophilia. Consensual necrophilia sounds absurd, but suppose a necrophiliac couple gave each other permission to have intercourse with their corpses in the event of either's death. Could the state ban that? Under Lawrence, I don't seem how. It seems like a pure regulation of morality/victimless crimes. I think Lawrence is ridiculous, just to be clear; that's what I was attempting to point out.