“She killed herself because she was a victim of sexual abuse. But even in death, her body was not spared. Her soul must be, somewhere, crying out in pain. We live in a society that turns a deaf ear to women who are abused everyday, can we then, hear the cries of the women who are dead? I have never feared death, but today my biggest fear is dying; my body after my death.”[i]
The term necrophilia was coined by Belgian Alienist, Joseph Guislain, who first used it in a lecture in the year 1950. Also called ‘Thanatophilia’ or ‘Necrolagnia’, necrophilia is an ailment of sexual attraction to corpses. It is pathological fascination with human dead bodies, which often takes the form of a desire to engage with them in sexual intercourse or sexual activities. It is a punishable offence with imprisonment or fine or both according to the laws of the respective nations. Although, this heinous misdemeanour is prohibited by the laws of many countries, Indian laws are very much silent, or say, unclear in this regard in spite of barbarism that is associated with necrophilia, as, it must be noted that ‘sex with corpses’ is not explicitly stated in the Indian Penal Code, however the person convicted with the above offence can be charged under section 297 and 377 of the Code. The present paper deal with necrophilia and laws related to it in some major developed countries in contrast with the weak, unclear and ambiguous Indian law in this regard.
The word “Nekros” or “Necr” is a Greek term that means or relates to corpse or dead, the word “Philia” (is also Greek) means love or attraction, and together, both of these words form the term “Necrophilia” that is defined as a sick abnormal fascination with death and the dead; it is a psychosexual disorder which is categorized under the group of disorders of paraphilias, a subtype of psychosexual disorder, that involves unusual or bizarre fantasies or acts that are necessary for fulfillment of sexual excitement.[ii] This sexual attraction for or sexual intercourse with dead bodies or obsession with erotic interest in or stimulation by corpses[iii] is also known as necromania or necrophilism. Different authors and researchers classify necrophilia in different categories. In 1989, Jonathan Rosman and Philip Resnick classified necrophilia into three types based on the acts of the necrophiles (persons practicing necrophilia) on the corpses, as: Homicidal Necrophilia- the necrophile under this category murders a person to obtain the corpse for sexual gratification; Regular Necrophilia- in this the necrophile uses already dead bodies for sexual pleasure; Necrophilic Fantasy- these necrophiles just fantasize about the sexual activity with corpses without carrying out any necrophilic acts.[iv]
However, with time the society changes and there are changes in the situations, the types in which people derived sexual pleasures out of dead bodies increased in the years after Rosman and Resnick categorized it into three, therefore, in 2009, Dr. Aggarwal, a professor of forensic medicines at Maulana Azad Medical College, New Delhi, classified the three categories further into ten, in the Journal of Forensic and Legal Medicine[v] giving names to each necrophile, viz[vi]:
The Role Players- those necrophiles who do not want to have sex with the dead body but enjoy sex with the person pretending to be dead; Romantic Necrophiles- these necrophiles are the normal saddened people who cannot bear the separation with their sex partners and hence they mummify their bodies of and continue to relate sexually; Fantasizer Necrophiles- these necrophiles do not engage in actual intercourse, they are content only with the fantasy of having intercourse with the dead; Tactile Necrophiles- these necrophiles are similar to those of the fanatsizers however, these people need to touch the dead body in order to get an orgasm; Fetishtic Necrophiles- these necrophiles also do not engage in actual intercourse but whenever they come across any dead body, and get the change, they cut off a part of the body for fetishtic activities; Necromutilomaniacs- these necrophiles are a step ahead of the fetishtic necrophiles as these people also do not engage in any sexual activity however, they derive erotic pleasure from mutilating the dead bodies and in some cases they even eat certain parts of the dead body; Opportunistic Necrophiles- these necrophiles are generally content with the intercourse with living but when they get a chance, they, don’t let it go, engage into sexual activities with the dead bodies; Regular Necrophiles- these are, as the name suggests, the regular necrophiles who, do not enjoy the sexual intercourse with the living people even when the choice is available and seek for a dead body for sexual intercourse, since they find it more pleasurable; Homicidal Necrophiles- these necrophiles are, the most dangerous ones, capable of having intercourse with the living but their urge to have intercourse with the dead bodies is so high that they kill people in order to satisfy their urges; Exclusive Necrophiles- these necrophiles are a step ahead to the regular necrophiles (who have sex with both the people alive and the dead), what makes these different is that these necrophiles cannot have sex with people alive and find it fascinating only when they have intercourse with the dead bodies.
Necrophilia is gender neutral, it goes beyond gender positioning and individual sexual curiosity;[vii] albeit, there have been cases of females having sexual intercourse with the male dead bodies and vice versa, it has been observed that generally and mainly only men engage into such activities.[viii]
LAWS RELATED TO NECROPHILIA IN INDIA; ARE THERE ANY?
There are many nations that do not have specific laws against necrophilia and India is one such nation. In actuality, at one time a curious necrophilic custom prevailed in India. If a female who was engaged died before marriage, her fiancé had to deflower her before she could be cremated.[ix] In the recent past, there have been several allegations, in our country, by the relatives of dead women that the bodies of their kin were defiled in the night by mortuary attendants, but none have been proved.[x] Even if these allegations get proved there is no law in India to punish such offenders. The only law related to corpses in India is section 297 of Indian Penal Code[xi] that relates to trespass on burial grounds. For a person to be punished under this section he/she should have trespassed into the burial ground with an intention to offer indignity[xii] to the corpses, this indignity may include having sexual intercourse with it, i.e. commit necrophilia. Hence, for the person to be punished for necrophilia under this section, the pre condition is, the person must have trespassed the burial ground first and then had sexual intercourse with the corpse after digging it out of the grave, or otherwise. This keeps the people who commit necrophilia otherwise than trespassing into a burial ground out of the clutches of the Indian law. For instance- the morgue keepers, technically, if a morgue keeper engages into sexual intercourse with the dead body, he could not be punished for offering indignity to the corpse because he had not trespassed into a burial ground and there is no law to punish one who offers indignity to a corpse (has sexual intercourse with it) without trespassing into or outside the burial ground under our penal code. Also, even if such an incidence is proved, that the person has had sexual intercourse with the corpse after trespassing into the burial ground, the person so committing it would be punished with an imprisonment of not more than one year or fine or both. This punishment, not extending one year, in any prudent human’s view, is very less for such unnatural offences of offering indignity to any human corpse in the form of sexual intercourse. Perhaps, the drafters of the Code did not intend the act of necrophilia to be punished under this section, had they intended, they would have clearly mentioned it in the Code and the punishment also would have been more than what is there in the section 297 of the Code.
It is because of this void in our penal law due to which in Nithari case,[xiii] the two accused, Mohinder Singh a rich business and politically influential man and his cook Surendar Koli were not punished for necrophilia. In the present case, on the suspicion of murder of a nineteen year old girl, who was one among the several girls that went missing from the Nithari village, went missing 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. This was followed by massive investigation and submission of report before the court that gave clean chit to Pandher due to lack of proof and a case was registered against Koli who assented to kidnapping, raping, murdering and defiling the body of women and the girls after their death, under Ss. 302 (punishment for murder), 376 (punishment for rape), 201 (causing disappearance of evidence of offence, or giving false information to screen offender) and several other provisions of Indian Penal Code, since necrophilia is not a crime in India, no case could be registered against him for having sex with the dead.[xiv]
Another such case came into light in Mumbai where the sessions court sentenced the accused to life. According to the Indian Express newspaper, the accused had lured the girl victim to his flat where he beat her to death and then sodomised her. The accused confessed to having murdered the girl and sexually abusing her dead body.[xv] However, he was punished for raping and murdering the girl and not for the post death sexual intercourse, again, because necrophilia is not a crime in India and no case for such act could be registered against him.
There have been debates on whether section 377 of the Indian Penal Code could be invoked in such cases. The section provides for a punishment of imprisonment for life or upto ten years and fine to every person who voluntarily engages in carnal intercourse against the order of nature with any man, woman or animal. Since having sex with a corpse is not natural and hence falls under the category of unnatural offence, however one of the main ingredients of this section is the “voluntariness” and there is no way the consent could be taken from a corpse and if the consent is absent, the intercourse would also be involuntary, hence dissuading from the section. The second element is that the intercourse should be done with a man, woman or an animal; however, a dead body is called a dead “body” because it is not a “people” anymore. [xvi] They are most certainly human, but once a person dies he/she becomes quasi- subjects before the law. A dead body’s legal status often makes necrophilia all the more impossible to fathom when we think about it in relation with the sacredness that many families will view a corpse as holding- the person may be dead, but they remain a loved one. And, in the eyes of law, a dead body becomes a kind of “property” for the next of kin that makes necrophilia a vandalism and not a sexual attack against a person.[xvii]
Very recently, in last week of October, 2015 three men in Uttar Pradesh gang raped the corpse of a woman and left it twenty feet far from the grave, naked. They had dug up the grave of the women who had succumbed to death due to the excessive pain while giving birth to a child.[xviii] Now the question is under what provisions would such people be punished, whether under section 297 for trespassing into the burial ground and offering indignity to the corpse or under section 377 for unnatural sexual intercourse!
LAWS IN OTHER COUNTRIES VIS-A-VIS INDIA
When laws of other countries are concerned, since we follow the common law system, let us start with the United States of America. USA does not have any federal law relating to necrophilia; it is left on the individual states[xix] to formulate the laws in this regard. Approximately forty out of fifty US states have some or the other version of a law that defines illegal actions with human corpses. There are four states viz: Arizona, Georgia, Hawaii and Rhode Island that explicitly use the word necrophilia in their respective statutes and the remaining thirty-six states have an assortment of laws that point towards necrophilia,[xx] for which the punishments range between one year (in many states) to fifteen years (in Georgia) and twenty years (in Massachusetts). Also, the section 250.10 of the Model Penal Code[xxi] (Official Draft, 1962) provides that it is a misdemeanor to treat corpses in a way that outrages ordinary family sensibilities. Where there is no federal law regarding necrophilia in US, the Section 70 of the Sexual Offences Act, 2003 of the United Kingdom clearly makes it an offence for a person who intentionally sexually penetrates, knowingly or recklessly, any part of his body into any part of dead person. Punishment for such offence is imprisonment for a term not exceeding six months or fine or both.[xxii] And, even though there is a provision related to necrophilia, the UK court does not seem to have applied it (at least in one case) in a case where the accused had confessed in the police interview to murdering his wife and then having sex with her dead body, however he was convicted only for her murder.[xxiii]
The Criminal Code of Canada, 1985 makes necrophilia illegal without specifically using the word necrophilia, penetration or any sex oriented word. The section 182 under Part V of the statute states “whoever ….behaves indecently or improperly or offers any indignity to the dead body or its remains is guilty of the offence and is liable to the punishment of imprisonment for a term not exceeding five years”.[xxiv] The wording of this section, to some extent, is similar to that of section 297 of the Indian Penal Code that also uses the words “…offers any indignity to any human corpse…”, but the difference is that, a clear reading of the section 182 of Canadian law makes necrophilia fall under it and makes its commission an offence, but section 297 of the Indian Law, however, fails to make necrophilia an absolute offence since it makes it an offence only when there is a trespass into burial ground whereas the Canadian law makes such act an offence whether the dead body is buried or not i.e. whether the offender trespasses into the burial ground or not. Also, the punishment under section 182 of the Criminal Code of Canada is five years which is five times the punishment under section 297 of the Indian Penal Code.
Even French Penal Code does not mention the word necrophilia or like, however the simple inference on the plain reading of its Article 225-17[xxv] makes such act fall well within its purview and therefore a crime. The punishment of imprisonment under French law also is only for one year (maximum two years) however, the fine imposed for such acts is high (€15,000- €30,000) at least from the Indian standpoint that is silent on the amount of fine to be imposed.
On one hand, where there are countries that have weak or unclear laws relating to the necrophilia, there are nations like Louisiana, North Carolina, Oklahoma and Kansas on the other hand, that actually allow having sex with the recently departed ones[xxvi] i.e. the corpses, hence making necrophilia a legal act.
It appears that one of the reasons for burning bodies after death in some cultures (most notably Hindus) or burying them deeply or in solid granite and marble tombs was to prevent their violation by necrophiles.[xxvii] Necrophilia is, today, though a poorly understood phenomenon[xxviii] almost all the countries have laws against it; some countries have strong ones and some weak or unclear. India falls under the lowest strata of the latter category of the countries since its laws in this respect are weaker and more unclear than others’. This weakness and unclearness has given rise to a deliberate doubt on sections 297 and 377 of the present Indian Penal Code as to whether it makes necrophilia a criminal offence or not, keeping in view the increasing incidences of necrophilia, it is the high time, the legislature shall clarify the stand by taking an action to criminalise it either by amending the Indian Penal Code or by inserting a new section to it. Unless, of course, the legislature is not waiting for an incidence of the degree of Nirbhaya rape incidence to occur in this regard and brings the public on roads again to mourn, protest and demand for a set of strict laws against necrophilia.
“It is very often said and is one of the mostly used proverbs- “prevention is better than cure,” India has already missed the stage of preventing necrophilia that merits it not to let the chance of curing it slip from its hands, the results could be chaotic.”
[i] Lines from a short film titled “Burn My Body”, written by Aryan Krishnan Menon available at: https://www.you-tube.com/watch?v=f7s7DrcdhB0, Last seen on: 12/11/2015.
[ii] T. T. Ochoa and C. N. Jones, Defiling the dead: Necrophilia and the Law, 18 Whittier Law Review, 539, 540, (1996-97).
[iii] Meaning of necrophilia available at: https://www.merriam-webster.com/dictionary/necrophilia, and https://www.col-linsdictionary.com/dictionary/english/necrophilia, Last seen on: 12/12/2015.
[iv] J.P. Rosman and P.J. Resnick, Sexual Attraction to Corpses: A Psychiatric Review of Necrophilia, 17.2 the Bulletin of the American Academy of Psychiatry and the Law Bull Am Acad Psychiatry Law, 154 (1989) available at https://www.researchgate.net/publication/20487888_Sexual_attraction_to_corpses_a_psychiatric_review_of_nec-rophilia last seen on 13/12/2015.
[v] A. Aggarwal, a New Classification of Necrophilia, 16, Journal of Forensic and Legal Medicine, 316 (2009).
[vi] Supra note 5 at 317-319.
[vii] L.M. Downing, Desire and Immobility: Situating Necrophilia in Nineteenth- Century French literature (1999)
[viii] Supra note 4 at 156, Table No. 2, (also, the sexes of the corpses are parallel to the sexual orientation of the necrophiles. Of the total sample (N = 91), 85 percent (77) used corpses of the opposite sex, 10 percent (9) used same sex corpses. and 5 percent (5) used corpses of both sexes).
[ix] Masters REL, Lea AEE. Perverse Crimes in History: Evolving Concepts of Sadism, Lust-Murder, and Necrophilia—From Ancient to Modern Times. The Julian Press, New York, 1963. As cited in Dr. A. Aggarwal, Forensic and Medico-Legal Aspects, 6, CRC Press, New York, (2011).
[x] Dr. A. Aggarwal, Forensic and Medico-Legal Aspects of Sexual Crimes and Unusual Sexual Practices, 310, CRC Press, New York, 2008.
[xi] S. 297- Trespassing on Burial Places etc- Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion or any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sepulture, or any place set apart from the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
[xii] Ratanlal & Dhirajlal, the Indian Penal Code, 487 (Lexis-Nexis, 34th ed., 2014); Indignity to corpse is not defined anywhere in the code. It is generally synonymous to humiliation or disgrace. A conduct to be criminal in the sense of S. 297, Indian Penal Code should be spiteful to become humiliating or disgraceful.
[xiii] Mohinder Singh Pandher and Surendra Koli v. State of Uttar Pradesh 2009 Indlaw ALL 237; 2009 (8) ADJ 251.
[xiv] Supra note 10 at 306.
[xv] Youth Gets Life in Jail for Killing Teen, Sexually Abusing her Body, Journal of Courage, The Indian Express, Mumbai, available at: https://archive.indianexpress.com/news/youth-gets-life-in-jail-for-killing-teen-sexually-abusing-her-body/722762/ last seen on: 10/12/2010
[xvi] J. Troyer, why we are so fascinated by people who want to have sex with dead bodies, the conversation, 03/07/2014 available at: https://theconversation.com/why-we-are-so-fascinated-by-people-who-want-to-have-sex-with-dead-bodies-28622 last seen on: 15/12/2015
[xviii] B. Nitin, Violating the dead: Is it time Indian had a law dealing with necrophilia? The news minute, 02/11/2015 available at: https://www.thenewsminute.com/article/violating-dead-it-time-india-had-law-dealing-necrophilia-35631, last seen on: 17/12/2015.
[xix] Supra note 10 at 311.
[xx] J. Troyer, Abuse of a corpse: a brief history and re- theorisation of necrophilia laws in the USA, 13.2 Mortality, 134, (2008).
[xxi] S. 250.10 Abuse of Corpse- Except as authorized by law, a person who treats a corpse in a way that he knows would outrage ordinary family sensibilities commits a misdemeanor.
[xxii] S. 70 Sexual penetration of a corpse (1) A person commits an offence if- (a) he intentionally performs an act of penetration with a part of his body or anything else, (b) what is penetrated is a part of the body of a dead person, (c) he knows that, or is reckless as to whether, that is what is penetrated, and (d) the penetration is sexual.
(2) A person guilty of an offence under this section is liable- (a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both; (b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.
[xxiii] Supra note 20 at 143.
[xxiv] S. 182 Everyone who (a) neglects, without lawful excuse, to perform any duty that is imposed on him by law or that he undertakes with reference to the burial of a dead human body or human remains, or (b) improperly or indecently interferes with or offers any indignity to a dead human body or human remains, whether buried or not, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. [R.S., c.C-34, c.178.]
[xxv] Article 225-17 (Ordinance No. 2000-916 of 19 September 2000 Article 3 Official Journal of 22 September into force 1 January 2002) Any violation of the physical integrity of a corpse, by any means, is punished by one year’s imprisonment and a fine of €15,000. The violation or desecration of tombs, burials grounds or monuments erected to the memory of the dead, committed by any means, is punished by one year’s imprisonment and a fine of €15,000. The penalty is increased to two years’ imprisonment and to a fine of €30,000 where the offences defined under the previous paragraph were accompanied by a violation of the physical integrity of the corpse.
[xxvi] A. Weinstein, 4/16/14, Gawker, Here are the States Where Blowjobs Are Illegal but Necrophilia’s Cool, available at: https://gawker.com/here-are-the-states-where-blowjobs-are-illegal-but-necr-1563878569; T. Bigler, 4/16/2014, Necrophilia is legal in These States, available at: https://gawker.com/here-are-the-states-where-blowjobs-are-illegal-but-necr-1563878569 last seen on 10/12/15.
[xxvii] Supra note 9 at 6.
[xxviii] Supra note 4 at 161.