INTRODUCTION
Necrophilia, or necrophilism, basically means intercourse with a corpse. The word originated by merging two words – necros, which means corpse or deceased, and philia, which is a kind of love or affection. The term was coined by Belgian physician Joseph Guislain in around 1950 in his lecture series, Leçons Orales Sur Les Phrénopathies.[1]In a contemporary sense, it may mean anything from mere affection from seeing a corpse to having arousal from touching a corpse and even having intercourse with a corpse. It is not always people who have sexual pleasure, but some necrophiliacs also like the view, smell, or touch of a dead body.[2]It is defined as a paraphilia by psychiatric bodies and is considered more as a fetish rather than a mental illness or disorder.[3]
It is found that only 15% of the total cases of reported necrophiliac behaviour involve people who have the desire to conduct intercourse with a corpse. More often, it involves people who are either afraid or incapable of being in relationships with living individuals. They often have the inherent fear of being rejected. Since the person is insecure with a living individual, such people often try to get all the pleasures from a dead body, knowing that the corpse cannot say no to them. The people accused in such cases are, more often than not, men who work in jobs like morticians, mortuary workers, transport service providers, cemetery workers, or related jobs.
WHY IS NECROPHILIA NOT A MENTAL DISORDER?
The legal test of insanity tells us that a person must have known the physical nature of the act or activity he does and the fact that it is legally or morally wrong.[4] Thus, a person can be clinically diagnosed as unhealthy or unfit from the mind, but if he knows that he is digging a body or attempting to murder a person to conduct sexual intercourse with it and he knows the fact that doing this is illegal, then he cannot be considered as a mentally insane person by law.[5]
WHY CAN A PERSON NOT BE HELD LIABLE UNDER NECROPHILIA IN INDIA?
In India, there is no dedicated law as such on Necrophilia, though if the Supreme Court of India were to slightly modify the interpretation of specific statutes, then we could safeguard the rights of dead bodies. The Indian Constitution guarantees the right to life, just treatment, and dignity; these rights apply to both the living and the deceased.[6] Further, the courts in India have held that the dead must be respected in the same way that the person would be treated before their death.[7][8]Necrophilia is very loosely defined in the Indian Penal Code, which states that anyone who ‘commits any trespass in any place of worship or on any place of sepulchre, 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.[9]’The provision tries to cover crimes against the dead by stating that a place ‘offers any indignity to any human corpse.’ However, since the Section primarily addresses trespassing of burial places or places of worship where bodies are kept, it becomes very difficult to include a place like a mortuary in this Section, leaving a significant gap over a topic that is not covered by the law. Apart from this, Section 375 or 377 cannot be used in this argument because they protect a ‘man, woman or animal.’ A dead body, most certainly, was a person, but when it is dead, it becomes a quasi-subject of law[10], this makes it tough for a court to prove someone guilty if in case they conduct sexual intercourse with a body after killing it.
In the landmark Nithari Murder Case in the village of Nithari, the skulls and bones of several missing children who belonged to migrant labourers were found. Delhi police detained a cook and assistant, Surendra Kohli, on suspicion of killing a 19-year-old female. After that, there was a thorough inquiry that the media dubbed the “Noida serial murder investigation.” Kohli allegedly confessed to raping, killing, and having sex with the corpses of women and children to ease his guilt. A complaint was then filed against Kohli by several IPC provisions, including those about rape, murder, kidnapping, and criminal conspiracy. Even though he pledged guilty to the crimes, it became tough for the court to punish him on the grounds of rape because he confessed that he conducted the activities after he killed the girl. Thus, in the end, his death sentence was lessened to life imprisonment because the court could not prove that having sexual intercourse with a dead body would constitute rape.[11]
HOW CAN THE EXISTING NOMENCLATURE BE INTERPRETED TO HOLD A PERSON LIABLE UNDER NECROPHILIA IN INDIA?
When we consider the legal status of a dead body about the sanctity that many families would perceive a corpse as holding—the individual may be dead, but they remain a loved one—we find that necrophilia is frequently all the more likely to be held accountable. Many people find it particularly unsettling since a dead body becomes a form of “property” for the next-of-kin in the perspective of the law in many necrophilia situations. In this sense, necrophilia turns into vandalism rather than a sexual assault on an individual.[12]
The law in India can be inspired by the law in other countries, especially the ones that have recently had dedicated laws on necrophilia. A two-year prison penalty is imposed under the Crimes Act 1961 of New Zealand for anybody who ‘improperly or indecently interferes with or offers any indignity to any dead human body or human remains, whether buried or not.’ The act of ‘committing a sexual act with a corpse’ is specifically addressed in Section 14 of South African law, although in the UK, this is covered under Section 70 of the Sexual Offences Act 2003.[13]
Necrophilia study exposes a complicated and unsettling phenomenon that subverts moral and legal norms in many societies. Although necrophilia entails intimate or sexual relations with a corpse, there are cultural and legal variations in the definition and application of this crime. Necrophilia is still a contentious and taboo topic since it raises serious moral and ethical concerns about the sanctity of human life and death in addition to involving the violation of a deceased person’s dignity. Examining this occurrence requires taking into account the effect on the deceased’s family and loved ones, who could experience additional anguish and pain as a result of their loved one’s body being violated.
The difficulty from a legal standpoint is the way that necrophilia is defined and dealt with in different legal systems. While some nations, like India, have explicit laws making necrophilia a crime, other nations have developed clear legal structures to deal with the issue. This absence leaves legal gaps that could hinder the prosecution of necrophiliacs in their entirety, especially when the deceased has been murdered. The victims and their families may not receive justice if legal definitions are unclear. International comparisons show that nations like South Africa, the United Kingdom, and New Zealand have made great strides toward clearly defining and criminalizing necrophilia in their legal codes.
CONCLUSION
A nuanced legal and ethical approach is required due to the delicate and complex nature of necrophilia. Legal systems around the world can strive towards more comprehensive and unambiguous regulations to preserve the dignity of the departed and guarantee justice for their loved ones by recognizing the extremely unsettling aspects of the occurrence and considering other nations’ legal systems. It is essential to keep reviewing and updating legal definitions and punishments as society views change and necrophilia research advances to make sure the legal system is still capable of handling these difficult cases.
Author(s) Name: Ronit Ojha (Indian Institute of Management Rohtak)
Reference(s):
[1] Anil Aggarwal. Necrophilia: Forensic and Medico-legal Aspects. (2010)
[2]Kari Northey. What is Necrophilia?- Just give me 2 minutes. [YouTube] (March 24, 2020) Retrieved from <https://www.youtube.com/watch?v=RXTCwoFw9ww&t=35s>
[3] Robin Goodwin, Duncan Cramer. Inappropriate relationships: the unconventional, the disapproved & the forbidden. (2002)
[4] Indian Penal Code Section 84
[5] Priyanka Dasgupta. Clinically ‘mad’ can be legally ‘sane’. [The Times of India] (July 20, 2015) Retrieved from <https://timesofindia.indiatimes.com/city/kolkata/Clinically-mad-can-be-legally-sane/articleshow/48139343.cms>
[6] The Constitution of India Article 21
[7] Parmanand Katara v. Union of India 1989 AIR 2039
[8] Ramji Singh and Mujeeb Bhai v. State of U.P. &Ors. PIL NO. 38985 of 2004
[9]Indian Penal Code Section 297
[10] Jo Adetunji. Why we are so fascinated by people who want to have sex with dead bodies? [THE CONVERSATION] (July 3, 2014) Retrieved from <https://theconversation.com/why-we-are-so-fascinated-by-people-who-want-to-have-sex-with-dead-bodies-28622>
[11] Surendra Kohli v. State through Central Bureau of Investigation
[12] Jo Adetunji. Why we are so fascinated by people who want to have sex with dead bodies? [THE CONVERSATION] (July 3, 2014) Retrieved from <https://theconversation.com/why-we-are-so-fascinated-by-people-who-want-to-have-sex-with-dead-bodies-28622>
[13] Nitin B. Violating the dead: Is it time India had a law dealing with Necrophilia? [The NEWS Minute] (November 2, 2015) <https://www.thenewsminute.com/news/violating-dead-it-time-india-had-law-dealing-necrophilia-35631>
