Debasing the Deceased: Examining Necrophilia from Judicial Lens

“People have different attractions. Mine just happens to be corpses.”

                                                                                                           — Hayden[1]

ABSTRACT

Necrophilia, paraphilia is a sexual attraction to the departed souls. It is deviating from the normal sexual behaviour accepted by the society.  The journey of Necrophilia has evolved differently in the past many centuries, it being equated from a religious practise to ‘Modern Vampirism’. Spiritually, it was termed as one of the sins in the Bible. However, after certain period, this issue was seen through the lens of a mental disorder and abnormality. Gradually, this took an ugly turn, when it is started to be considered as a crime where the perpetrator is defiling the dead, especially the women. The researchers tend to throw light upon, how the current legislation, i.e. Indian Penal Code, 1860 and the Bharatiya Nyaya Sanhita Bill, 2023 whose aim is to provide Nyaya to victims is not covering Necrophilia as a criminal offence. It is of paramount importance that the people who are no more in this world deserve to be treated with dignity and honour enshrined under Article 21 of the Indian Constitution. It is a pertinent issue that needs to be analysed and resolved.

Keywords: Consent, Crime, Disorder, Necrophilia and Women.

INTRODUCTION

Necrophilia is a bewitchery to corpses often coupled with paraphilia and sadism.[2] It is usually a connotation to a psychological disorder. The same can be linked to Egyptian mythology, where it is claimed that God is used the severed genitalia of Osiris to become pregnant. Necrophilia was first perceived as being as uncommon and serious as rape and paedophilia. However, it is worsened as this disorder should be termed as an offence owing to gross misuse of taking the defence of insanity rather than having knowledge or intention to commit the offence. One such instance is the Karnataka High Court in a controversial Judgement of Rangaraju Vajapeyi v State of Karnataka[3] on 30^th May 2023, reversed the judgment of Sessions court by acquitting a man from the offence of Necrophilia, i.e. by killing and subsequently raping the dead body of 21-year-old women. This case is not the first time the Court held the act of Necrophilia (in Greek nekros is a corpse; philia is love), cannot be considered Rape under Section 376 of the Indian Penal Code, 1860.[4] To constitute Rape, it should be against the consent of the women, since a dead body is not considered a person and cannot protest, the provision of rape is not attracted. The current penal legislation, The Indian Penal Code, of 1860 does not divulge nor criminalise Necrophilia. However, under Section 297, it remotely mentions ‘trespassing on burial grounds[5]. Also, the term ‘Dead Body’ is not unambiguously defined within the Code when we have a rationale for Man, Women and Person. The term ‘Dead Body’ should be gender-neutral with the inclusion of animals. When a Company or an Association is designated as a legal person, non-mentioning and defining the departed soul remains a grey area.Such loopholes not only bring the Judiciary into a challenging situation but also the society as a whole to combat this offence.

Article 21 of the Indian Constitution propounds the doctrine of the right to life and personal liberty. The departed souls too have the same respect and dignity as that of a living person. The criminals have gone one step ahead of raping the dead to evade the arrest and further legal consequences. Section 377 of the said Code is ineffective in criminalizing Necrophilia as an act that should be committed ‘Voluntarily’ under this Section, which the departed souls can’t give. Hence, this provision too remains ineffective presently. Necrophilia is an act against the order of nature and it’s an unnatural offence, hence, it is need of the hour to amend Section 377 of the Indian Penal Code, 1860[6], i.e., Unnatural Offence and should be made a full-fledged offence rather a psychological disorder via an amendment under Section 377 or an unhackneyed provision is added within the Indian Penal Code, 1860 which will prevent the criminals from evading punishment. The Code currently deals with crimes by or against humans who are alive. As per Article 142 of the Indian Constitution[7], the Hon’ble Supreme Court needs to take cognizance of this pertinent issue before the Parliament initiates. Defiling the dead is a much more serious offence as it is being made punishable in countries like the United Kingdom under Section 70, i.e. Sexual Penetration of a Corpse under Sexual Offences Act, 2003[8] and in South Africa, i.e. Section 14 of Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007[9]. In the famous David Fuller case in the U.K., he was convicted for secretly abusing more than 100 dead bodies of women and girls in the mortuary while working as an electrician.[10] The U.S.A. doesn’t have a law to criminalise Necrophilia, however, it has left to the respective states to action on same. The Karnataka High Court issued certain directives, i.e. Sterilization of the Mortuary, Removal of Physical and Infrastructural obstacles and instilling sensitivity while handling the deceased with care and dignity which is to be complied with by the Hon’ble Supreme Court of India in times to come.  The time is not tomorrow but it’s now to act expeditiously on this grey area by curbing the menace and rise of Necrophilia.

  RECOMMENDATIONS

There are some of the issues which should be scrutinized:

1. Section 297 of the Indian Penal Code, 1860 provides a penalty for ‘trespassing on burial places, etc’. However, this punishment of the section is restricted to trespassing and indignity of a corpse. However, non-mentioning and penalizing sexual intercourse with a corpse remains a grey area. When we can have the provision of rape for raping a woman who is alive and whose consent is not there, then it is the need of an hour that we also have a provision incorporated in the current code for departed souls as well.

• The definition of ‘Person’ needs to be crystal clear and elaborated under the Indian Penal Code, 1860. As per Salmond, the rights and duties of a person cease when he is no more. On the other hand, the corpse too has a right of decent burial and dignity even after death as provided under Article 21 of the Indian Constitution, and also stated in Ramji Singh and Mujeeb Bhai v. State of U.P & Others.[11] Now, there is a conundrum which has been created between these aspects which is yet to be resolved.

• Section 376 of the Indian Penal Code, 1860 provides punishment for Rape. Here, the victim is not giving consent to sexual intercourse. Now, in Necrophilia the corpse itself cannot give consent. Hence, Section 376 fails to apply here as it is only applicable to women who are alive. In one of the important incidents, 03 men gang-raped a dead woman by taking out her body from a grave. Under this, the men were charged with Section 297 of the IPC, 1860.[12]

CONCLUSION

It is important to view Necrophilia from the lens of criminal offence rather than a psychological disorder as the perpetrators are misusing the law while committing the crime and evading the arrest due to a lack of explicit provision within the IPC, 1860. In the times to come it needs to be recognised legally so that the world becomes a safer place for women. The investigation of necrophilia as a potential victimless crime results in a sophisticated and comprehensive knowledge of a deeply troubling subject, conclusion. The classification of necrophilia is complicated by the absence of a living victim, raising difficult ethical, legal, and psychological issues. The practise raises ethical questions concerning consent, autonomy, and the dignity of the dead, and it challenges societal norms and values. Legal definitions and punishments for necrophilia vary widely between jurisdictions, leading to uncertainty and inconsistency that calls for careful reform. Examining the psychological components demonstrates the need for a greater comprehension of the reasons and potential risk factors that lead people to commit such crimes. The analysis also emphasises how crucial it is to take cultural and religious sensitivities into account while addressing this issue in various civilizations. Necrophilia is also termed a victimless crime as the person against whom it is committed is no more in this world. We need to settle the complexities of this unsettling phenomenon while preserving the dignity of the dead and respecting shifting social morals.

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[1] Daniel Oberhaus, The Little Death: Living and Loving as a Necrophiliac, VICE (Oct. 14, 2023 11:57 PM) https://www.vice.com/en/article/yvxem5/the-little-death-living-and-loving-as-a-necrophiliac-511.

[2] P. Chatterjee, Necrophilia: A Complex Intersection of Crime and Psychological Disorder, 45 Journal of Indian Academy of Forensic Medicine (2023).

[3] (2023) S.C.C. Online Kar 23.

[4] The Indian Penal Code, 1860, No. 45 of 1860, (India) § 376.

[5] The Indian Penal Code, 1860, No. 45 of 1860, (India) § 297.

[6] The Indian Penal Code, 1860, No. 45 of 1860, (India) § 377.

[7] INDIA CONST, art 142.

[8] Sexual Penetration of a Corpse under Sexual offences Act, 2003, §70.

[9] Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, § 14.

[10] Holly Bancroft, David Fuller: Necrophiliac murderer sentenced for further sexual abuse of mortuary bodies, INDEPENDENT, (Oct. 14, 2023, 11: 33 PM) https://www.independent.co.uk/news/uk/crime/david-fuller-necrophiliac-murder-sexual-abuse-morgue-b2240411.html.

[11] 2009 SCC Online AII 310.

[12] India.com News Desk, Shocking! Three Gang Rape Woman after Digging Body from Grave in Uttar Pradesh, INDIA.COM (Oct. 14, 2023, 11:00 PM), https://www.india.com/news/india/shocking-three-gang-rape-woman-after-digging-body-from-grave-in-uttar-pradesh-655705/.