Necrophilia & Lockean Libertarianism:

The Curmudgeonly Clerk notes a recent case of necrophilia where the perpetrator was arrested for the crime of rape. The Clerk correctly points out that this crime is not rape or attempted rape and shouldn’t be prosecuted under this legal theory.

Social conservatives argue, post-Lawrence v .Texas, we are surely headed for a sexual free for all where the law, following this case's logic, must grant a “right” to all sorts of other sexual behaviors. Some social cons might even argue that Lawrence could lead to a “right” to necrophilia.

But if we ground our law according to the libertarian paradigm (and Lawrence certainly is consistent with libertarianism), then we need not fear this. This is how I think libertarianism ought to deal with necrophilia:

When it comes to conduct the state should proscribe, libertarianism centers around notions of “consent” and “harm” of “persons” and their “property." And it is clear that “rape” is unacceptable because it violates notions of “consent” and thus clearly “harms” the victim. It is equally clear that homosexual sex does not.

Although necrophilia is condemned by notions of traditional morality, libertarians do not hold this as a sufficient basis for criminalizing sexual behavior and after Lawrence, social conservatives (lamenting the decision) have argued that such notions of traditional morality are no longer a constitutionally acceptable basis for such legislation.

What about the "ick" factor? Most people find necrophilia “icky” (I don’t think there can be an ickier thing on the planet—this is the ickiest. And there is a difference between ickyness and harm. While this may be icky, there are many things—rape, for instance—that are far more harmful). But the “ick” factor, in my opinion, isn’t sufficient either to justify legal proscription of any behavior.

So what about harm? Is necrophilia “harmful” to a victim? Some might argue that if “harm” is our standard, this isn’t very. The corpse is, after all, dead. And the Clerk’s post more or less argues that necrophilia is not the equivalent of rape, that we cannot compare the “harm” done to a corpse with that of what occurs to a rape victim.

However, although the Clerk is dead on right regarding this comparison, harm still is being done by the act of necrophilia. Let us not forget some first Lockean libertarian principles. Each individual “owns” him or herself. And this ownership follows us to the grave. That is, we have the legal right to dictate how our property, including our corpses, may be disposed of. 99+% of folks would not “consent” to someone having sex with their corpses after they die. (Most folks won’t even donate their organs.) And let me go on record now stating that when I die, I don’t want anyone messing with my corpse in that way. Thus, if no permission by the person is ever granted during that person's life to have “relations” with the dead body, then even though necrophilia is not rape, it IS a violation of the property rights that the decedent (or his or her estate, obligated to follow the decedent's wishes) has in the corpse.

And what if someone wants to “donate” his or her corpse to necrophiles (just like some folks might donate their bodies to science, to be experimented on by medical students)? Then there is no violation and I don’t see any reason for the law to be involved.