Articles

The Curious Case of Necrophilia in India: Why Defiling the Dead Should Be A Penal Offence

-By Shivam Kunal* and Ishita Sapre**

Necrophilia is a word that denotes the sexual desire, attraction, stimulation or sexual act of a person towards a corpse; this bizarre term finds little to no recognition in the book of laws of most countries. While some countries do not recognize necrophilia as an offence, India penalizes it under ‘trespass to burial grounds’ South Africa and the United Kingdom are the only two countries that have incorporated punishment specifically for necrophilia. Brazil has a law that makes it illegal to abuse a corpse which is similar to the law persisting in Sweden, New Zealand makes it illegal to engage in “misconduct with human remains”. In the USA, there is no federal law that penalizes the same, but each state has their legislation – in Washington necrophilia is a Felony, Nevada also penalizes the offence under a felony. However, in Texas, it is only a misdemeanour. There are no laws governing sex with a corpse in New Mexico, Nebraska, Vermont, Kansas, Kentucky, Louisiana, and North Carolina.    

Necrophilia finds no mention in the laws of many countries, and it remains an unattended question as to why the sexual demeanour of a dead person is not protected under criminal laws. The term necrophilia has a Greek origin, necro means related to the corpse, and the term philia means an abnormal love towards something, and collectively, both of these words form the term “Necrophilia” It can be termed as one of the most uncanny and queer forms of sensuality inside a human. The term was first coined by the Belgian psychiatrist Joseph Guislain. It is a bizarre psychological disorder.

Section 297 of the Indian Penal Code, 1860 (IPC), makes a vague attempt at incorporating the defiling of a dead body within its statutory confinements. There lie numerous limitations with the said provision. Firstly, only those persons can be treated as liable for acts prohibited under Sub-section (1) who have trespassed into the burial grounds. A morgue keeper, an employee in the morgue, guards of the morgue or guards of the burial grounds and keeper of the burial grounds or any other person who is present at either place under their official capacity cannot be held liable even if they are caught indulged in any of the acts prohibited under Sub-section (1) since they have not trespassed into either of the places. The provision falls flat at the very first requirement. Secondly, the punishment attached is imprisonment up to a year or fine or both. The punishment is insufficient, to say the least, and must be increased to an imprisonment of not less than seven years. The act of defiling a human corpse is not only a crime against the society that destroys the basic right of dignified burial, but it is also a crime against the sentiments of the family of the deceased. 

There exists no penal provision in India which criminalizes the “particular act of necrophilia” if no trespass has been committed. The subject of sex is still a taboo in the country and, an offence as bizarre as necrophilia is a farcical reality that lies beyond the imaginative capacity of majority. It is imperative to highlight that occurrence of necrophilia is associated with a corpse and, the corpse can be of a person who met his demise earlier, or it can be of the person who was killed for this ghastly act. In India, there have been reports where necrophilia was committed in the furtherance of murder, this disturbing, perverse sensuality lies deep in the minds of necrophiliacs, and it is a greater threat to the society than what is believed by the drafters of the statute.  In one of the cases, a 20-year-old man confessed to having killed and raped his victims.  In West Bengal, a serial killer was caught and claimed to have been killing women to satisfy his sexual needs. In another case in U.P where a deaf and mute man was charged under murder and rape, the police commented,

“The accused is a pervert and attempted to rape the woman initially and, when she resisted, he strangled her to death and raped her body”.

The most shocking case of necrophilia came to light in the year 2006, where an influential businessman and his cook was under the radar after police discovered as many as 19 skeletons and dead bodies nearby their house. In the said case, on suspicion of the murder of a nineteen-year-old girl, who was one among the several girls that went missing from the Nithari village, after she had gone to the house of accused, this arose suspicion on the duo and out of suspicion, the police searched the house of the accused and recovered numerous pornographic CDs and pictures of naked children and women. 

Necrophilia has been a motivator for many offenders to commit the crime of murder if they fail to find a dead body, the extent of the barbarism of such perpetrators is limitless, and it shall be treated as such in the books of law. This punishment, not extending one year, in any prudent human’s view, is very less for such unnatural offences of offering an indignity to any human corpse in the form of sexual intercourse.  

Section 377 of the Indian Penal Code makes unnatural offences a penal liability. Any person who involuntarily engages in carnal intercourse against the order of nature with a man, woman or animal shall be punished with imprisonment for life or up to ten years or fine or both. Having sex with a dead body is against the order of nature, but a primary requirement of this provision is to instate that the intercourse was performed “involuntarily.” A dead body could not consent to an act, and thus the first element is absent in the persistent matter. Another element says that intercourse must be done with either a man, woman, or animal. However, a dead body is called a dead “body” because it is not a “people” anymore. They are most certainly human, but once a person dies, he/she becomes quasi- subjects before the law. A dead body’s legal status further complicates the entire concept of necrophilia. While the corpse may not hold a legal or real value despite being a “property”, it still holds unimaginable emotional value for the families of the deceased. Hence, section 377 cannot be invoked in these offences and it needs to be dealt with separately and comprehensively. Only two countries I.e. South Africa and New Zealand have expressly made the commission of necrophilia a criminal act.

The United States of America does not have any federal law relating to necrophilia; it is left on the individual states to formulate the laws in this regard. Section 150 of the New Zealand Crimes Act 1961 imposes a punishment of a term not exceeding two years upon any person who, “improperly or indecently interferes with or offers any indignity to any dead human body or human remains, whether buried or not”. Sub section (b) expressly includes any act that tends to offer am indignity to dead body or human remains. The act of sexual intercourse with a corpse can be inferred and incorporated within the language of the Act. The country of South Africa has also made necrophilia a criminal offence. Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 prohibits the commission of a sexual act with a corpse.1 Until codified, the act was a common-law offence. In the United Kingdom, section 70 of the Sexual Offences Act 2003 criminalizes sexual penetration of a corpse, carrying a maximum sentence of two years’ imprisonment. Before 2003, necrophilia was not illegal; however, exposing a naked corpse in public was classed as a public nuisance.

Conclusion

It has been already highlighted that even in all the countries where necrophilia is identified expressly as a penal offense, the maximum punishment is imprisonment for up to 2 years. The insufficiency in punishment is largely neglected. In India, neither the term finds any mention in the statute, nor does it constitute independent criminal liability. After the emergence of cases of necrophilia, a separate penal provision needs to be inserted to deal with the same or amendments can be made to the existing provisions. For instance, the definition under Section 377 is limited to man, woman and animal an amendment can be made to the provision to expressly include ‘corpse’ within the ambit of Section 377. Moreover, the embargo placed upon section 297 IPC by “trespass” shall be removed with the inclusion of an explanation that states- ‘Any person who under his/her duty in the morgue or the burial ground, engages in an act prohibited under (1) shall be liable to be punished.’

The author* and the co-author** are 3rd year students at Institute of Law Nirma University, Ahmedabad (Gujarat).

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