Runner will revive necrophilia legislation

Assemblywoman Sharon Runner, R-Lancaster, said she will introduce new
legislation next year to increase the penalties for having sex with a
corpse, including making the crime officially a sex offense. The bill would
also revive some of the issues brought up in AB 2261, a bill by
Assemblywoman Barbara Matthews, D-Tracy, which died in the Assembly
Appropriations Committee in May.

Runner said that she fully expects this bill to fail as well, but she wants
to keep the issue in the spotlight–and counter the argument that necrophilia
is a “victimless” crime.

“The victim is the poor family that has to live with that,” Runner said.
Runner is the legislator who managed to make the rare-but-unspeakable crime
illegal in the first place. Her bill, AB 1493, was signed into law by Gov.
Arnold Schwarzenegger in 2004–and has resulted in a single conviction since
it’s been on the books. Prior to that, anyone who “knowingly mutilates or
disinters, wantonly disturbs, or willfully removes any human remains” was
guilty of only a misdemeanor; there was no specific statute that addressed
sexual contact with the dead. Runner said she only got that bill through
because there was an incident around that time at a funeral home in the
district of then Senate President Pro Tem John Burton.

However, in order to get the bill passed, Runner had to take several
amendments. The penalties, 16 months to three years in the final version,
were lower than she wanted. The crime ended up as a “wobbler”–a misdemeanor
or a felony, depending on the situation.

Matthews’ bill sought to make necrophilia a felony, to make it technically
rape, and increase the penalties to death or life without parole. After
negotiating with Assemblyman Mark Leno, D-San Francisco, then the head of
the Assembly Public Safety Committee, the penalties were reduced to match
rape–three to eight years–without the violation technically being a rape.
Leno noted that rape is based on the question of consent–which a corpse
can’t give. He also said that he had issues with making it the equivalent of
murder, despite the “horrific” nature of the crime.

“Murder is unique, and should have unique punishments,” Leno said.

Indeed, the crime raises many questions, according to a widely-cited 1997
Whittier Law Review article by Tyler Ochoa and Christine Jones, “Defiling
the Dead: Necrophilia and the Law.” How broadly do you define the “victim”?

Furthermore, anyone engaged in the practice is probably committing one or
more other serious crimes in the process, from trespassing to murder.
Finally, there is the state of mind of the offender.

“These people are clearly mentally disturbed,” said Ochoa, a law professor
at Santa Clara University. “Necrophilia is a recognized disorder in the
Diagnostic and Statistical Manual of Mental Disorders.”

While about 30 different states have laws against necrophilia, these
confounding issues have prevented the country from coming up with universal
set of punishments. He added that the article has brought him more attention
than anything else he’s ever done: “I wish I had as much notoriety for my
work in copyright law.”

But such subtleties are beside the point to Runner and Matthews. Both say
they headed reluctantly down the unpleasant path of necrophilia legislation
due to shocking crimes that took place in their districts. In Matthews’
case, it was a 1988 murder and rape in Modesto. The coroner said he could
not determine the order in which the crimes took place.

“So, of course, the chump who did it said he did it afterward,” Matthews
said.

The chump, Scott Avery Fizzell, wasn’t captured for nine years. Now he’s
serving 31 years to life, but Matthews said he could be paroled after as
little as 17 years. The victim’s mother, Jacque MacDonald, became a public
champion of changing the law so Fizzell would have faced death. In 2000,
then-Assemblyman Dennis Cardoza, now a member of Congress, carried
legislation inspired by the same case designed to make necrophilia and
“special circumstance” that would make murder defendants eligible for the
death penalty. That bill died in Assembly Public Safety.

Matthews said she has spoken with MacDonald several times over the years and
encouraged her to keep up the fight.

“I’m not there anymore,” said Matthews, who termed out this year. “But
nothing ever dies. They just fight it over and over.”