ABSTRACT
Necrophilia is defined as being sexually attracted to dead bodies. Also known as necrophilism, necrolagnia, necrocoitus, necrochlesis, it includes sexual acts involving corpes.
Deplorably very few countries to date have criminalised the act of ‘necrophilia’. In India, the judiciary has often addressed the question of rights of the deceased. § 297 and 377 of IPC partially covers the grievous acts of necrophilia. What becomes crucial here is enactment of specific law to govern the menace of this vile act. At the same time, it is also important to take into consideration its psychological viewpoint. It is equally important to take note of both of these in order to safeguard the rights and dignity of the deceased.
Keywords: necrophilia, rights of the dead, sexual attraction, right to life, insanity
RESEARCH METHODOLOGY
This paper adopts a descriptive approach, utilising secondary sources for a comprehensive analysis of ‘necrophilia’ and the related legal frameworks. The research draws from a variety of secondary information sources, including newspapers, academic journals, and reputable websites. These sources provide a comprehensive foundation for examining the complexities of necrophilia and the corresponding legislative responses.
REVIEW OF LITERATURE
- “Necrophilia and Different Perspectives of the Offense” by Priyanshi Vashishtha and Kartikey Pandey: This work provides a comprehensive exploration of various perspectives on necrophilia, shedding light on its multifaceted nature. Through meticulous research, the authors elucidate the legal intricacies surrounding necrophilic acts, emphasising the shortcomings of existing legislation in effectively addressing this offence. Their analysis underscores the imperative for new laws that not only criminalise necrophilia but also incorporate provisions for prevention, intervention, and rehabilitation.
- “Necrophilia – A Depraved Act of Human Monstrosity” by Anjali Raj: The author’s incisive contribution dives into the depths of human immorality that underlies necrophilic activities, emphasising the critical necessity for legal intervention to combat this horrible behaviour. Using empirical evidence and theoretical frameworks, Raj emphasises the inadequacy of current legal frameworks in facing the terrible nature of necrophilia. Her findings serve as a powerful call to action for legislative improvements that prioritise justice and dignity for the deceased.
- Art 21 of the IC, often hailed as the cornerstone of individual rights, guarantees ‘the right to life and personal liberty’. While traditionally interpreted in the context of the living, legal scholars argue that this provision extends protection to the deceased as well. In the absence of specific legislation addressing necrophilia, Article 21 serves as a compelling legal framework for safeguarding the dignity and integrity of human remains. Its invocation underscores the inherent right of every individual, even in death, to be free from violation and desecration.
INTRODUCTION
The phrase ‘Dead men tell no tales’ has always been a staple of pop culture dialogues. Today, it has moved out of fantasy to become a horrifying justification for far too many corpses. The cornerstone of any robust judicial system is its ability to navigate through the complex issues of contemporary society. Lamentably, India is yet to address the challenge of Necrophilia. Derived from the Greek words necros, meaning corpse and philia meaning love; Necrophilia can be defined as sexual intercourse with corpses or sexual attraction to a dead body. A necrophilic person is someone who is involved in behaviour which is largely motivated by sexual urges. It’s a repugnant, vile, and repulsive act against a body that has barely any legal recognition worldwide. Very limited nations including Canada, UK, Germany, New Zealand and SA penalize necrophilia. Though there’s no federal legislation in the US, each of its states has its own laws dealing with this offense. Regrettably, despite steadily increasing cases of necrophilia in India, there are no specific laws dealing with it. A recent judgment in Rangaraju vs State of Karnataka Case, highlights the need of specific laws for necrophilia. In the concerned case, the victim, a woman aged 21 years, while returning home after her class, was dragged into a bush and the accused cut her throat. Further it was proved, that the accused also committed rape on her dead body. Based on the documentation, the accused was sentenced for murder and rape of the woman by the session’s court. The case was subsequently appealed to a division bench, which maintained the murder conviction but found faults in the single judge’s decision on rape. The judges debated whether raping a corpse would be covered under §376 of the IPC, and the answer was, regretfully negative. The bench reviewed laws that mentioned necrophilia but found that none of them expressly addressed the offence and hence could not be enforced.
Prominent cases of necrophilia in India includes the infamous Nithari Hatyakand of 2006, one of the most gruesome and horrifying crimes of the year. In this case, the two defendants were found to have committed murder and sex with more than a dozen kids. During the trials, it was discovered that they chopped and consumed the cooked body pieces. Likewise, in June 2019, a serial killer was apprehended in West Bengal after killing seven women and having sex with their remains. In general, depending on the circumstances of the case, the accused is prosecuted with murder, assault, or rape but not with necrophilia because there is no law to address this crime. These cases also demonstrate that necrophilia is a pervasive problem in India that must be addressed as quickly and effectively as possible in order to provide justice and dignity to the deceased and their families.
UNCOVERING LEGAL LOOPHOLES
Art 21, of the IC states that “No person shall be deprived of his life or personal liberty except according to procedure established by law”. Art. 21 has been interpreted in various ways for both the dead and the living. In the case of Parmanand Katara v. UOI, the court stated that art. 21 applies to both living and dead people. According to the court in Amrutha v. The Commissioner, even the deceased have the right to privacy and dignity because they have immortal existence.. § 297 of the IPC, the only relevant law in this field, concerns itself to the intrusion of burial grounds, which means, to be convicted under this section for necrophilia, a person must have intruded into the cemetery and defiled the corpse with an intend to dishonour the deceased. Consequently, those who engage in necrophilia without trespassing are not covered by Indian Legislations.
IPC § 377, states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”. In order to apply this provision in cases of necrophilia, three conditions must be met, (i) Voluntary Participation, (ii) Opposing nature’s order and (iii) with any men, woman or animal. Out of these three; necrophilia fulfils only one requirement. The intercourse is against nature’s order. According to the Victorian principle, ‘any sexual act that does not lead to procreation is considered as against nature or unnatural’.
However, Section 377 does not explicitly encompass dead bodies because the terms ‘man’ and ‘woman’ within this section are defined in relation to their measurable biological aspect, notably their age. Given that this attribute pertains solely to living entities, this provision cannot be implicated in cases involving the desecration of deceased individuals. Also determining whether the conduct was voluntary also becomes problematic. Therefore, India must revise its laws regarding corpses and enact stricter rules to prevent these appalling incidents.
Globally, the legal recognition of necrophilia as a crime remains sparse with only a handful of countries explicitly criminalising such acts. Notably, Australia has taken legislative measures to address necrophilia through the Criminal Code Act of 1995 (Section 236), which unequivocally criminalises engaging in sexual intercourse with the deceased. Offenders found guilty under this provision may face a maximum sentence of 10 years’ imprisonment, reflecting the gravity with which the Australian legal system views such abhorrent behaviour.
Similarly, in Germany, necrophilia is expressly prohibited under §168 of the criminal code, which condemns the desecration of the dead. Offenders in Germany face up to three years in prison for breaking this provision, demonstrating the country’s commitment to protecting the dignity and sanctity of human remains.
Conversely, the United Kingdom’s legal stance on necrophilia presents a notable contrast. While the country lacks specific legislation targeting necrophilic acts, Section 70 of the Coroners and Justice Act 2009 addresses the issue indirectly by criminalising the possession of indecent images of corpses. This omission of explicit necrophilia legislation in the UK raises questions about the adequacy of legal protections for the deceased and highlights potential gaps in the legal framework.
In conclusion, the varied legal approaches to necrophilia across Australia, Germany, and the United Kingdom underscore the complexities and challenges inherent in addressing such acts within the confines of the law. While some countries have taken decisive steps to criminalise necrophilia and uphold the dignity of the deceased, others may need to reevaluate their legal frameworks to ensure comprehensive protection against such egregious offences.
COMPLEXITY OF INSANITY: THE PSYCHO – LEGAL VIEWPOINT
Necrophilia, as according to the DSM – 5 of mental disorder,“is a mental disorder wherein the individual is aroused and attracted to fantasies or actual sexual contact with a dead body, and falls under the sub classification of paraphilia.” Necrophillic propensity can be easily concealed and seen only when the misdeed is already executed. Even after the act is committed, assessing whether the offence has occurred is difficult, and in some situations, two post-mortems are required (which is rare in India). What makes it more strenuous is that necrophilia is not only improperly defined in our laws, but it is also classified in various ways.
Since necrophilia has more than 10 classifications, it is harder to distinguish and convict the perpetrator, except when he is caught red – handed which is a rarest of rare scenario. This leads to the absolute necessity of framing specific laws to facilitate the identification of the crime.
Next, the question arises around the sanity and insanity of a necrophiliac . Insanity is a valid defence in the court of law. § eighty four of IPC states – “Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law”.
However, in the case of necrophilia, the person behaves normally prior to and following the act. What should be observed is the extent of the insanity plea.
When necrophile John Christie was tried in the United Kingdom in 1953, his attorney utilised the insanity defence, aiming to prove his insanity by demonstrating that the culprit murdered more victims than acknowledged. The court invalidated the claim of defence. The defendant’s reasoning had flaws because he failed to consider the legal definition of insanity. The defence of insanity requires the absence of intent.
It also begs the question of whether a necrophile is simply someone who gets stimulated by touch of the dead, or if they kill to fulfil their desire. In such circumstances, the sentence should be enhanced beyond one year in India.
The longest punishments for necrophilia are given in some states of the United States, For instance, Georgia penalises necrophilia as a felony with a punishment of up to 15 years in prison, while Massachusetts imposes a penalty of up to 20 years.
In Canada, necrophilia is punishable under § 182 of the Criminal Code, which stipulates imprisonment for a term not exceeding five years for offering any indignity to a dead body, whether buried or not. Therefore, it is critical to conduct an extensive psychological assessment of necrophilia and various circumstances associated with it. This will not only speed up the trial process, but also make it easier to identify and punish criminals for such crimes.
IDENTITY, INTEGRITY AND THE QUESTION OF CONSENT
Ethics refers to the study of philosophy of morality — what is morally acceptable and unacceptable. The public’s denial of necrophiliac behaviours as a socio-cultural taboo is frequently due to ethical concerns.
The primary ethical concern about necrophilia is whether it is right or wrong. There is disagreement over whether necrophilia is morally right or wrong. Many scholars argued that as soon as an individual dies, his personal identity is lost, therefore, a misdeed conducted on a dead body cannot be considered violation of rights of an individual.
However, this standpoint was proved wrong after the decision of the hon’ble SC, in the landmark judgement of Parmanand Katara v. UOI . In this case, the court recognized that the right to life and fair dignity under Sec 21, applies to both living and deceased people. As a result, the dead corpse has a legal and social identity, and, except some rights (for practical reasons), is entitled to fundamental rights.
As a result, necrophilia is not only ethically incorrect but also morally wrong because it trashes the person of the dead individual and the sentiments of those related to him. Necrophilia can be extremely traumatic for the deceased’s families and loved ones. It can lead to intense emotional distress and social stigma. Regarding the issue of consent, some argue that necrophilia does not violate the consent of the deceased. However, there are two primary counterarguments. Firstly, the deceased individual did not provide consent for sexual intercourse with the perpetrator. Secondly, legal procedures typically require presumed consent before subjecting a dead body to any investigative process, underscoring the importance of consent even posthumously. Furthermore, the law includes a provision for ‘expressed volunteerism’, which requires the approval or consent of family members, direct relatives, or (in some cases) guardians in order to carry out the law’s inquiry procedures. Hence, necrophilia violates the consent of the dead.
SUGGESTIONS
The continuous rise in necrophilia cases in India underscores the urgent need for implementing specific laws to address this grievous act. The recent court judgement in ‘Rangaraju v. St. of Karnataka’ has highlighted the necessity for new standards. These recommendations include the installation of CCTV cameras in morgues and private hospitals across the state, enhancing the efficiency and security of clinical logs and information storage, and instituting a system for regular cleaning and staff sensitization to ensure the dignity of the deceased is maintained.
Moreover, it has been suggested that §377 of IPC should be amended to explicitly include human, animal, and deceased bodies within its scope, thereby upholding the honour of the deceased. Additionally, the introduction of new, specific laws to criminalize necrophilia needs to be proposed. These laws would make the act unlawful, with a term of up to ten years in prison and a fine, thereby addressing the legal loopholes and ensuring a more robust legal framework to deter such heinous acts. Additionally, it is important to recognize that necrophilia is classified as a mental disorder. Therefore, the extent to which the defense of insanity is invoked in court should align with the psychological understanding of this condition. Courts must ensure that the application of the insanity defense is consistent with contemporary psychological and psychiatric viewpoints, acknowledging the complex interplay between mental health disorders and criminal behavior.
By integrating mental health expertise into the legal process, the justice system can better address the nuances of cases involving necrophilia. This approach not only aids in fair adjudication but also emphasizes the necessity of appropriate psychological evaluation and treatment for offenders, potentially mitigating future occurrences of such acts. This dual focus on legal reform and mental health underscores a comprehensive strategy for addressing the rise in necrophilia cases while maintaining respect for both the law and psychological sciences.
CONCLUSION
As once said by Lois McMaster, “The dead cannot cry out for justice, it is the duty of the living to do so for them.” This duty requires the establishment of specific laws to safeguard the deceased. After extensive research, it is clear that the laws on necrophilia in India and globally are inadequate, especially given the rising number of cases. Current legal provisions often fail to explicitly address necrophilia, leaving significant loopholes. There is an urgent need for specific, robust legislation to effectively address and deter this act. Additionally, recognizing necrophilia as a mental disorder, it is crucial to align legal defenses with psychological perspectives to ensure appropriate evaluation and treatment for offenders. Addressing these legal and psychological gaps is essential for safeguarding human dignity and curbing the incidence of necrophilia. However, the most pressing requirement is to sensitize and educate the public so that they can detect, report, and be safe from such offenses. The world’s longest constitution cannot remain mute on grave crimes such as necrophilia. Therefore, it is an urgent necessity for legislators to take cognizance of this heinous crime and deliver justice to the dead.
Author – ARUNIMA SINGH
College: Dr. Ram Manohar Lohia National Law University, Lucknow