Aggravated Rape of a Dead Victim: The Crime of Randolph Wayne Brobeck

Suppose a male criminal shot a female victim in the head, killing her. Suppose further the male immediately sexually penetrated the female. Does such conduct constitute the crime of aggravated rape as codified at Tenn. Code Ann. §39-13-502? That was the issue in State v. Brobeck, 751 S.W.2d 828 (Tenn. 1988).

After midnight on Sunday, September 2, 1984, Shirley Fair was alone in her Mosheim home in Greene County. Her husband Larry was working on a construction job out of state. Randolph (“Randy”) Wayne Brobeck broke into the house. He shot Mrs. Fair in the left forehead with a .22 caliber pistol. Then, after she was arguably brain dead, he penetrated her vagina and ejaculated.

The aggravated rape statutes then and now are virtually identical. Forensic pathologist Dr. Cleland Blake opined that Mrs. Fair was legally dead when penetrated. Justice Fones and his Tennessee Supreme Court colleagues held it didn’t matter.

“We are … unable to embrace the motion that the fortuitous circumstance, for the rapist, that death may have preceded penetration by an instant, negates commission of the crime of aggravated rape and reduces it to a relatively minor offense associated with erotic attraction to dead bodies. Reading the ‘live only’ requirement into the statute encourages rapists to kill their victims, in our opinion.”

Randy Brobeck was sentenced to life imprisonment for murder and forty years for aggravated rape, to run concurrently. He is currently housed in the prison at Mountain City.


Don PAine DONALD F. PAINE died Nov. 18, 2013. He was a past president of the Tennessee Bar Association and at the time of his death was of counsel to the Knoxville firm of Paine, Tarwater, and Bickers LLP. He was member emeritus to the Tennessee Bar Journal Editorial Board. He wrote his columns months in advance, and as a result, “Paine on Procedure” will continue through mid-2014.