November 16, 2006

Is a burrito a sandwich? Is a dead animal an animal?

One thing I like about law is the way it can become important and serious to answer what would otherwise be a pointless, stupid question. Earlier this week, everyone was talking about whether a burrito is a sandwich. (It mattered because there was a contract barring a second sandwich place at a shopping center.) Today, the question is whether a dead animal is an animal. It matters because a man who had sex with a dead deer is charged with the crime of having sex with an animal:
“I’m a little surprised this issue hasn’t been tackled before in another case,” [Judge Michael] Lucci said.

The Webster’s dictionary defines “animal” as “any of a kingdom of living beings,” [the man's lawyer] said.

If you include carcasses in that definition, he said, “you really go down a slippery slope with absurd results.”

[The lawyer] argued: When does a turkey cease to be an animal? When it is dead?

When it is wrapped in plastic packaging in the freezer? When it is served, fully cooked?...

“The common and ordinary meaning of a word can be found in how people actually use the word,” [the district attorney] wrote in his response to the motion.

When a person’s pet dog dies, he told Lucci, the person still refers to the dog as his or her dog, not a carcass.

“It stays a dog for some time,” [the D.A.] said....

“It did not lose its essence as a deer, an animal, when it died,” he said.
That's getting pretty metaphysical... more metaphysical than the burrito's essence of sandwich!

Note: Here in Wisconsin, a court dismissed a criminal case when it found there was no written law making it a crime to have sex with a dead human being. The prosecutor -- faced with behavior that is far more serious than some idiot having sex with a dead deer -- didn't try to argue it was a rape case. [CORRECTION: The prosecutor did try to argue that the case fit the sexual assault statute, which has specific language relating to a deceased victim: "This section applies whether a victim is dead or alive at the time of the sexual contact or sexual intercourse." The judge rejected this argument, it seems, because, as the defendant's attorney contended, the legislature included that language to prevent a murderer from escaping a rape charge by saying the death preceded the sexual act. The statute's use of the word "victim," rather than "corpse" supports this interpretation. The prosecutor's argument in the deer case, about how the deer remains a deer for some space of time after its death, seems similar to the idea the defense used in that earlier case. So what is the statutory language in the deer case? The crime charged is §944.17(2)(c), which is "an act of sexual gratification involving his or her sex organ and the sex organ, mouth or anus of an animal." This would exclude the "Portnoy's Complaint" sort of behavior -- masturbating with a slab of raw liver -- but it also makes it rather clear that the concern is not for the animal's welfare but about the perversion of the person engaging in the behavior of "gratifying" himself.]

Added observation: The expression "slippery slope" is grossing me out here. I'm thinking of the raw liver in "Portnoy's Complaint." (There's a search-inside-the-book function at the link, so go ahead and relive the excitement.)

UPDATE: The dead deer lover's conviction is upheld.

42 comments:

Chris said...

Aristotle, De Anima 2.1: "[W]hen seeing is removed the eye is no longer an eye, except in name--it is no more a real eye than the eye of a statue or of a painted figure."

Derve said...

(There's a search-inside-the-book function at the link, so go ahead and relive the excitement.)

Or just read Roth's more fulfilling,
Goodbye, Columbus ?

CB said...

Maybe I'm just being obtuse, but it seems to me that asking whether a dead animal is an animal is like asking whether a blue car is a car.

chris, remember Aristotle also wrote that women have fewer teeth than men.

Dave said...

"One thing I like about law is the way it can become important and serious to answer what would otherwise be a pointless, stupid question. "

Well, the obvious riposte is: "One thing I dislike about the law is its propensity to make portentous the trivial."

Freeman Hunt said...

Bleh! What is wrong with people? Was there not a point during that act when the man stopped and thought, "Wow. I am actually having sex with a dead deer. What is wrong with me? Maybe I should call someone."

As disgusting as I think his act was, I don't think an animal carcass can properly be equated with a live animal. And I agree with his lawyer's reasoning. How long would a dead deer on the side of the road stay a deer? Until it started decomposing? Until it was just bones? Until it was entirely decomposed and totally unrecognizable as having been an animal?

I also think that the DA's reasoning is faulty. You may call your dead dog a dog, but it isn't. You could beat a dead dog, and people would call it crazy, but no one would call it animal cruelty because a carcass isn't an animal.

Anonymous said...

As to the first question, whether a burrito is a sandwhich, the Wisconsin Dept of Revenue has an answer, at least when it comes to imposing a sales tax:

"Sandwich" includes, but is not limited to, burritos, tacos, enchiladas, chimichangas, pita sandwiches, gyros, and pocket sandwichs.

The reference to chimichangas always cracks me up.

Now you know.

Nasty, Brutish & Short said...

The Judge is surprised this issue hasn't been tackled before in another case?

There are still some matters of first impression, Judge!

Gahrie said...

The judge in the Mass. case ruled that a burrito is not a sandwich.

The Drill SGT said...

Ignoring both the definitional issues (and by doing so I guess I'm revealing that I think like Ginsburg rather than Scalia) and skipping right to outcomes:

1. I think of Panera as a bakery that sells soup and sandwiches. I like variety and don't think that a Mexican restaurant or even Mexican fast food as directly comparable. I vote for variety.

2. as to having sex with a dead animal carcass. I just want the guy off the street, prosecuted, or medicated. that boy needs help...

Anonymous said...

Let's save time, and integrate all the questions into one:

Is a taco bell burrito a dead animal that someone had sex with?

It sure tastes like it.

Kirk Parker said...

Whew! At least the deer case didn't happen in Washington State...

Pogo said...

1) Please tell me that Fin & Feather isn't full of pictures of man-on-carcass love. Yeesh.

2) Now I know what chalk drawing to do when I next visit the UW Madison campus.
Raise Dead Meat Love Awareness!

Tom in LA said...

Maybe the deer was horny.

Ann Althouse said...

Maybe the question should be the intent of the legislature and the outcome should depend on whether the concern was protecting animals or whether it was with the perverse sexual interest in animals. But I don't think that should be the question, simply because it's a criminal case and the statute needs to be clear about what is covered.

Chris said...

Like nasty-brutish, I love the judge's comment: "I’m a little surprised this issue hasn’t been tackled before in another case." Hard to imagine that it hasn't gotten resolved before now, since necrobestiality is so common!

Apparently, though, it produces 5100 Google hits.

Tibore said...

"Is a taco bell burrito a dead animal that someone had sex with?

It sure tastes like it."


1. Ewwwwwwwww!

2. That's why I avoid Taco Bell. Although I had not previously considered abuse of a lascivious nature as being one of the possible degradations the food there could suffer. Now, I have a new fear to ponder.

3. Ewwwwwwwww!

Mack said...

Doesn't that create kind of a disastrous policy, though, at least from the deer's perspective?

Now everybody who wants to have sex with an animal will know that they just have to kill it first, and then it's ok.

This could almost make a good plot for a Scooter Libby book. A tragedy, of course...

knoxgirl said...

If there's one thing the internets have done, it's to broaden all of our awareness of bizarr-o and repulsive fetishes. Add "dead deer" to the list of things we'll never quite think of in the same way again!

How long before somebody chalks this on a sidewalk in Swarthmore? (someone had to ask...)

reader_iam said...

As I started to read this post via feed, in summary form, I had this hideous creeping feeling: "Dear Lord, please tell me she's not heading toward the liver in Portnoy. Please oh please."

Like a person seeing ambulance lights in the distance who could change routes but instead is irresistibly drawn to the scene, I clicked over.

Ewwwwwww!!!!!!!

Oh boy. Portnoy.

I was that oddest breed of children--one who, when faced with a plate of liver and brussels sprouts, would think as instructed of the Starving Children Of The World and chow down without complaint. This went on for years, until I filched my dad's copy of Portnoy from his top bureau drawer (where all the most "thrilling" (ahem) "modern" books appeared to live. I had to have been 9 or 10 because we hadn't moved to Delaware yet.

WELL! From that day forth, I pointblank refused to eat beef liver, which caused an earthquake in my home, where it was served at least weekly and the fight over food was reserved to my historically picky younger brother, who never bought the starving kid argument for a single second in any context.

The worst thing--and the thing that got me into so much trouble, the first couple of times I refused--is that I simply COULD NOT "explain [myself] young lady." (This was a common question at home, btw, and I usually tried to oblige, however ineffectually.) I mean, what 9- or 10-year-kid possibly could have, back in those days (this would have been late '70 or early '71)? Discuss whacking off (which phrase I'm quite sure I didn't know) in any form, much less into liver? With my parents???

Perhaps things have changed now, and it wouldn't be any big deal. But man, Portnoy's Complain sure as hell had a huge impact on me, as one of those Books I Read Too Soon.

It's a testament to childhood experiences that I can toss out of my mind, with ease, the image of sex with a dead deer. But I fear I'll have that damned liver on my brain for the rest of the day. Sheesh: Thanks for sharing, Ann!

; )

(Completely unrelated and OT: Any chance you're thinking of a new podcast one of these days? I'm all caught up and waiting for more.)

misterfed said...

I love the prosecutor's argument, which almost seems like a parody of a law-and-order argument:

"Interpreting the statute to exclude dead animals would also exclude freshly killed animals, Boughner said. That, he said, could lead to people who commit such acts with animals to kill them."

NeeSmart said...

tasteless

res_ipsa_loquitur said...

Remember, there's a famous Supreme Court case where the court ruled that a tomato is a vegetable, even though it's scientifically a fruit. I believe the court reasoned that the tomato functions as a vegetable, so effectively, it is one.

When is a deer not a deer? When the court feels like it isn't.

res_ipsa_loquitur said...

Case was Nix v Hedden, 149 U.S. 304 (1893).

Ernst Blofeld said...

Althouse, your stop on the internet for necrophilia and beastiality!

(the two words above will probably draw a lot of google hits in the years to come.)

Ann Althouse said...

There's a Supreme Court case that says a black man is a white man.

Ann Althouse said...

Ernst: The thousands of posts I've done could be quantitatively analyzed to produce a shocking portrait of me! Corpses have been a major theme, from the first week of the blog! I have a Bloggingheads episode called something "and dead bodies." And it's all just been: what interested me... magnified by Google Alerts.

Anonymous said...

OK, another descrepancy between what is legal, and what is sick. It may be LEGAL to have, um, relations, with a a dead animal, but it is certainly SICKER to do so.

Trey

CB said...

And don't forget the SCOTUS case that says that nude dancing is speech.

The Princess Bride quote is appropriate: "I don't think that word means what you think it means." (from memory--not sure if that's exactly right)

reader_iam said...

The thousands of posts I've done could be quantitatively analyzed to produce a shocking portrait of me!

Best done while playing in the background the podcast where you absolutely lose it over the boiling oil story.

I still laugh--seriously, I am actually LOL right now--remembering that interlude, and the podcast which was its context. (Those who listened to it will realize that my comment here isn't nearly as OT one might otherwise think.)

res_ipsa_loquitur said...

Vizzini: Inconceivable!

Inigo Montoya: You keep using that word. I do not think it means, what you think it means.

Paul Zrimsek said...

I can see why other people were reminded of Portnoy's Complaint, but the story that came first to my mind was Thomas Mann's famous Venison Death.

Ann Althouse said...

Reader: Funny, just yesterday I was trying to remember what was that thing that cracked me up and I figured out it was on a podcast, found which one, and had to listen to it to hear what it was. Men forced to reach into boiling oil... that is not supposed to be funny! Note that what cracked me up is something a commenter -- the Right Rabbi Juddah -- wrote.

Mike said...

How are we ever going to figure out if a 1 hour old dead animal is an animal when we can’t even agree on whether an 8-month old fetus is a person?

Personally, I don't have any problems with these questions (Yes and Yes).

reader_iam said...

I know it wasn't the boiling oil part that cracked you up (or me, either--I was laughing at your laughing: you know, like catching yawns from other people, and then you can't stop). But I couldn't remember the guy's name and, I confess, was too lazy to look it up given the nature of my comment.

I certainly wasn't trying to imply that you're a sicko! Just amused--in both senses of that word--by your general train of thought today, and your blogging (and podcasting) aesthetic generally.

Robert R. said...

Just when you think you've read everything.

I've got two reactions to this.

1. The defendant is just thick.

2. The public defender is pretty sharp. I'm impressed that he even came up with that argument. That's certainly competency in action.

I suspect that the Judge will find some way for the charge to stick. And I doubt any appeals court will want to touch the case if the Judge rules against the defense.

JorgXMcKie said...

About twenty years ago I was sitting around with a bunch of pizza delivery guys (sickos one and all) toward the end of the night and we were trying to figure out what was the sickest fetish we could think of. Someone came up with pyronecrobestiality, but then we got into an argument on whether that meant having sex with burning dead animals or setting yourself on fire and then having sex with a dead animal.

ziemer said...

you should probably delete the note to your post. i know the prosecutor in the necrophilia case, and he did argue that it was governed by the sexual assault statute, which expressly provides, "this statute applies whether the victim is alive or dead."

ziemer said...

here's a link to an old article about the case.

http://www.wislawjournal.com/archive/2006/0927/necrophilia.html

the prosecutor argued the statute is plain and unambiguous and does include necrophilia.

ziemer said...

hey, i'm serious. i want the slanderous note deleted.

by the way, on oct. 31, the prosecutor appealed the dismissal. does that sound like he is not contesting this decision?

Ann Althouse said...

Ziemer: I've added a correction. That detail was not in the press reports I remembered seeing. In any case, the prosecutor didn't stretch the idea of rape to cover corpses, he had a statue that specifically covered dead "victims." By the way, leaving repeated comments in an old post isn't the best way to make sure I see something. Email is better.

ziemer said...

thank you.

Simon Kenton said...

Mack -

I understand the defendant in the dead-deer case had previously been convicted of shooting a 27-year-old horse in order to have sex with it.

Let's steer this guy off the streets and into a Thomas Harris novel, where he belongs.