The Volokh Conspiracy

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Criminal Law

Is It "Abuse of Corpse" to Have Sex on Mattress That Partly Covers Your Ex-Girlfriend's Dead Body?

One might have hoped this question would never have come up .... [UPDATE: Commenter QuantumBoxCat adds, "Worst threesome ever."]


From Wednesday's opinion in State v. Howard, by Judge Robyn Aoyagi:

In March 2019, N died of an accidental drug overdose in the bedroom of her apartment. At the time of her death, N was dating defendant, and he was living in the apartment. Another woman, S, was also staying there temporarily. Defendant became sexually involved with S before N's death.

One morning, defendant discovered that N had died. Her body was on the bedroom floor between the bed and the wall. There is no contention that defendant played any role in N's death or that he moved her body.

Defendant concealed N's body, however, to delay the discovery of her death. He piled a large quantity of clothing on top of and around the body and placed four empty storage totes upside down on top of the clothing. He then rotated the bed's queensized mattress 90 degrees relative to the box spring, so that one end was lying atop the storage totes and somewhat raised.

When N's family was unable to reach her for two days, a group of relatives and friends came to the apartment to confront defendant as to N's whereabouts. That led to the police searching the apartment and finding N's body. The police had to move the mattress, the storage totes, and the clothing to find N's body.

During a police interview, defendant admitted that he found N dead and concealed her body. He also admitted to having sex with S on the bed after N's death. Defendant was charged with two counts of second-degree abuse of corpse, ORS 166.085 ….

Unfortunately, "Defendant was convicted of violating ORS 166.085(1)(a) in a trial in which everyone—the parties, the trial court, and the jury—misunderstood what the state needed to prove for defendant to be found guilty." Because of this, and presumably because of how the case was litigated on appeal, the court doesn't decide whether defendant's actions actually violated the law. ("It is debatable whether, correctly construed, ORS 166.085(1)(a) actually prohibits such conduct, i.e., whether concealing a corpse with such items is a form of physical mistreatment that meets the statutory definition of 'abuse' in ORS 166.075(2)." "It is possible that ORS 166.085(1)(a), correctly construed, did not actually prohibit defendant's conduct.") If you're curious, here are the relevant statutory provisions, as quoted by the court:

Regarding first-degree abuse of corpse, ORS 166.087 provides:
"(1) A person commits the crime of abuse of corpse in the first degree if the person:
"(a) Engages in sexual activity with a corpse or involving a corpse; or
"(b) Dismembers, mutilates, cuts or strikes a corpse.
"(2) Abuse of corpse in the first degree is a Class B felony."

Regarding second-degree abuse of corpse, ORS 166.085 provides:
"(1) A person commits the crime of abuse of corpse in the second degree if, except as otherwise authorized by law, the person intentionally:
"(a) Abuses a corpse; or
"(b) Disinters, removes or carries away a corpse.
"(2) Abuse of corpse in the second degree is a Class C felony.
"(3) As used in this section and ORS 166.087, 'abuse of corpse' includes treatment of a corpse by any person in a manner not recognized by generally accepted standards of the community or treatment by a professional person in a manner not generally accepted as suitable practice by other members of the profession, as may be defined by rules applicable to the profession." …

[T]he verb "abuse" in ORS 166.085(1)(a) is actually defined in a separate but related statute, ORS 166.075, that creates the crime of abuse of venerated objects. ORS 166.075(2) provides:
"As used in this section and ORS 166.085, 'abuse' means to deface, damage, defile or otherwise physically mistreat in a manner likely to outrage public sensibilities."