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NECROPHILIA: A LEGAL VACUUM AND A NEED FOR A LEGISLATION AUTHORED
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NECROPHILIA: A LEGAL VACUUM AND A
NEED FOR A LEGISLATION
AUTHORED BY - HITESH
NARISETTY
BBA.LLB (Hons) 4th year,
CO-AUTHOR - VALLIMIREDDY
ABHINAV DEEP DORA
Assistant Professor
CO-AUTHOR 2 - ROMIL ARYAN
Assistant Professor
VIGNAN INSTITUTE OF LAW,
VADLAMUDI, ANDHRA PRADESH. INDIA.
ABSTRACT
Necrophilia, derived from
the Greek words "nekros" (dead body) and "philia"
(attraction or love), signifying an obsession with and erotic interest in
corpses. It traces necrophilia from ancient civilizations like the Moches of
Peru and historical maritime practices to contemporary cases such as Jeffrey
Dahmer and the Nithari killings in India. The study classifies necrophiliacs
into ten categories based on the severity of their behavior, from role players
to exclusive necrophiles.
The legal landscape is
scrutinized, revealing significant gaps in Indian law, where sections of the
IPC and BNS indirectly address indignity towards corpses but fail to explicitly
criminalize necrophilia. Comparisons with laws in the UK, New Zealand, and
South Africa show a more direct approach to prosecuting such acts. Ethical considerations emphasize the profound
violation of the deceased's dignity, calling for urgent legal reforms,
increased public awareness, and interdisciplinary research. Psychological
insights suggest that necrophilia often stems from mental disorders and
traumatic experiences, necessitating comprehensive preventive and
rehabilitative measures.
By examining historical,
psychological, legal, and ethical dimensions, this paper provides a holistic
understanding of necrophilia. It advocates for specific legal provisions,
public education, and support for victims' families to uphold human dignity and
justice, addressing a deeply disturbing aspect of human behavior that continues
to challenge societal norms and legal systems.
Introduction
Necrophilia is a term
derived from the Greek words philios which means attraction to or love and nekros means dead body.
According to the dictionary of Merriam Webster, Necrophilia is an “obsession
with and usually erotic interest in or stimulation by corpses”.[1] The
term “Necrophile” means a person who
is sexually attracted to corpses and whereas “Necrophilia” means having sexual intercourse with corpses. This phenomenon has been evolving throughout
history, appearing in ancient mythologies, literature and modern media. It is reflecting humanity’s complicated
relationship with death and unacceptable customs.
History
Necrophilia is an ancient
practice. The Moches who were also known
as “Greek of Andes” ruled over some parts of Peru from 1st century
to 8th century. In the 1980s
archeologists found their paintings in pyramids which depicted the people
having sex with dead creatures and it was so habitual and frequent in their
paintings that the investigator believed that it was the ritual of their
civilization to have sex with dead.
In ancient times, when
dead bodies were transported by sea for final funeral rites or when someone
died on a ship, sailors were often accused of necrophilia. The long trips, loneliness and lack of
witnesses led sailors to commit acts of necrophilia with the dead bodies.
Forensic Psychologist Anil Aggrawal introduced
a ten-tier classification of necrophiliacs based on the increasing severity of
the disorder.
|
Class
|
Tentative Name
|
Characteristics
|
|
I
|
Role players
|
Do not want to have sex
with a dead person. Enjoy sex with a living person pretending to be dead
|
|
II
|
Romantic necrophiles
|
Bereaved people, who
would mummify a part of the body of their recently departed loved ones, and
keep it with them in order to get a psychosexual stimulation. Would not show
a similar interest in any other dead body, i.e., body of a person with whom
they were not romantically involved in life
|
|
III
|
Necrophilic fantasizers
|
Fantasize intercourse
with the dead. May visit cemeteries and funeral parlors and may masturbate in
the presence of the dead
|
|
IV
|
Tactile necrophiles
|
Interest in dead bodies
increases to the level of touching them. Like to stroke erotic parts of a
dead body, such as breasts. May manipulate sexual organs of the dead in order
to get an orgasm
|
|
V
|
Fetishistic necrophiles
|
Cut up parts of a dead
body – say a breast – mummify it, and keep it in their possession to use it
as a fetish for their necrophilic activities. Differ from class II
necrophiles in the sense that they (class V) do it with the bodies of
strangers with whom they held no romantic relationship in life. Thus, they do
not do it merely to fill a psychosexual vacuum left by the death of their
loved ones
|
|
VI
|
Necromutilomaniacs
|
Interest in dead bodies
is more than merely touching them. Necrophilic pleasure comes from mutilating
a dead body
|
|
VII
|
Opportunistic necrophiles
|
Actual sexual activity
with the dead starts from this class. Normally these necrophiles would be
content to have sexual intercourse with the living, but if an opportunity
arose, would not refrain from having sexual intercourse with the dead.
Necrophilic mortuary attendants belong to this class
|
|
VIII
|
Regular necrophiles
|
The so-called ‘‘classic”
necrophiles. They do not enjoy sexual intercourse with the living and prefer
dead bodies for intercourse. They can however have sex with both living and
dead persons. In this sense they differ from class X necrophiles, who can have
sex only with dead persons
|
|
IX
|
Homicidal necrophiles
|
This penultimate
category is the most dangerous of all, in the sense that they would kill a
person in order to have intercourse with him or her. They are however capable
of having sexual intercourse with the living, but the need for sexual
intercourse with the dead is so great that they must kill human beings in
order to have sexual intercourse with their dead bodies
|
|
X
|
Exclusive necrophiles
|
Sexual intercourse is
possible only with the dead, with the complete exclusion of living partners
|
The father of history, Herodotus in his book named ‘The Histories’ explained that Egyptians
had a culture of leaving a woman’s body to rot for 3-4 days before preservation
in order to prevent sex with the corpse.[2]
Many serious cases of necrophilia came from the modern
period. The following are some of the
scary cases from modern history.
- In 1827, a Frenchman named Leger mutilated the
genitals of a young girl and drank her blood after necrophilia. One of the most famous necrophiles was
Sergeant Francois Bertrand, a sergeant in the French army, who during the
years 1847-1849 dug up corpses to have sex with them. It was Bertrand’s
case that prompted the Belgian Psychiatrist Joseph Guislain to come up
with the term necrophilia.[3]
- In the early 19th century, the
Catholic Church discussed “What kind of sin it is to have carnal
connection with a female corpse” and came to the conclusion that it should
neither be considered whoring nor bestiality but pollution with attendance
to whoring.
- India’s most famous case and the two most
notable necrophiles of present time have been Surendra koli and Moninder
Singh Pandher, who had committed several acts of necrophilia on dead
bodies of young children and women living in their neighbourhood. Their necrophiliac acts came to public
attention in Dec 2006 during Noida Serial murder investigations. This case is famous as the Nithari case.
“People have different
attractions, mine just happens to be corpses” a
statement given by Hayden.[4]
LAWS
IN INDIA
There is no specific provision in IPC or BNS or in other
special legislation that specifically deals with the offence of
Necrophilia. But however, few provisions
of IPC or BNS are often connected when any act of such nature is
committed.
- Section 301 of BNS (sec. 297 of IPC):
Section 297 of the IPC[5], now
Section 301 of the BNS[6],
stipulates that any individual who, with the intent to wound or insult the
religion of a person, trespasses into a place of worship, a location set up for
funeral rites, or a repository for remains, and treats a corpse with indignity
or causes a nuisance to those assembled for funeral rites, shall be punished
with imprisonment up to one year, a fine, or both. This section is the closest
in criminal law to addressing the indignity towards dead bodies, but its
interpretation is vague, as it does not clearly define "indignity."
This term encompasses various actions such as throwing the body outside a
graveyard, undressing, mutilating, or having intercourse with the dead, all of
which are treated with the same punishment, which may not be adequate for every
case. Moreover, the section's geographical limitations restrict its
applicability to places of worship and sepulture, making it inapplicable to
desecrations performed outside these areas. This ambiguity and limitation raise
questions about whether the section effectively covers cases of necrophilia and
if its penalties are sufficient for such acts.
- Section 63 of BNS (sec. 375 of IPC):
Section 375 of the IPC[7], now
Section 63 of the BNS[8], defines
rape as sexual intercourse with a woman against her will or in any manner
deemed unlawful under this section. The term “woman” is defined under Section
10 of the IPC, now Section 2(35) of the BNS, as a female human being of any
age, clearly indicating that rape under this section applies only to living
women, not their dead bodies. Consequently, Sections 375 and 376 of the IPC,
now Section 64 of the BNS, do not apply to cases of necrophilia. In the case of
Rangaraju Vajapeyi vs. The State of Karnataka[9],
the High Court upheld the murder conviction but overturned the lower court's
rape conviction, noting a significant loophole in Indian law. The court found
that necrophilia is not covered under Sections 375 and 377 of the IPC, and
there are no criminal law provisions to punish sexual intercourse with a dead
body. While Section 297 of the IPC protects the dignity of the dead, it does
not specifically address necrophilia. The High Court emphasized the urgent need
to reform criminal law to specifically address the crime of necrophilia.
- Section 377 of IPC:
Section 377 of the IPC[10], which
criminalized carnal intercourse against the order of nature with any man,
woman, or animal, was repealed following the landmark Supreme Court judgement
in Navtej Singh Johar vs. Union of India[11].
The Court held that Section 377 was unconstitutional as it violated fundamental
rights, including equality before the law, non-discrimination, freedom of
expression, and the right to privacy. This decision marked a significant
victory for LGBTQ+ rights in India, enhancing their acceptance and inclusion in
society. Subsequently, the Transgender Persons (Protection of Rights) Act,
2019, was passed, which included the repeal of Section 377, aligning India with
other nations recognizing LGBTQ+ rights. The proposed new criminal code,
Bharatiya Nyaya Sanhita (BNS), does not criminalize consensual same-sex
relationships, reflecting the Supreme Court’s judgement. However, the repeal of
Section 377 has faced criticism for leaving a gap in addressing certain crimes,
such as necrophilia and sexual offences against animals. The Supreme Court had
noted the complexities in applying Section 377 to necrophilia due to the term
"voluntarily," and the new criminal code lacks provisions addressing
such deviant behaviours, leading to public backlash for potentially weakening
the criminal justice system.
LEGAL
RIGHTS OF DECEASED PERSON
Article 21 of the Indian Constitution guarantees the
fundamental right to life and personal liberty.
This right doesn't just apply to people who are alive; it also extends
to them even after they have died.
In the case of Ramji Singh and Mujeeb Bhai vs. State of
U.P. and Ors[12]The
Allahabad High Court reaffirmed that Article 21 includes the right to treat
deceased individuals with the same dignity and respect they had during their
lives. The court criticized unnecessary post-mortem examinations, stating that
such practices could violate the dignity of the deceased.
- Section 315 of BNS states that dishonest
misappropriation of property possessed by a deceased person at the time of his death is an offence.
- Section 356 of BNS deals with defamation,
stipulating that any false and derogatory statement published against a
dead person constitutes criminal defamation and is punishable.
- Section 351 of BNS states that intimidating an
individual with threats of wounding the image or reputation of a dead
person who is dear to him is a criminal offence.
The above-mentioned laws protect a deceased person's
dignity but don't cover necrophilia. This shows that while the Indian
legislature acknowledges and tries to protect the rights of the dead, it fails
to address new crimes like necrophilia, highlighting the need for legal
reforms.
LAWS
IN OTHER COUNTRIES
- UK[13]
Section 70 of the Sexual Offences Act, 2003
criminalizes the act of sexual penetration with a corpse, prescribing a
punishment of up to two years imprisonment. However, there have been no
recorded prosecutions for this offense so far.
- New Zealand[14]
Under Section 150 of the Crimes Act 1961, improperly
or indecently interfering with or offering any indignity to any dead human body
or human remains is an offense punishable by imprisonment for a term not
exceeding two years?.
- South Africa[15]
Section 14 of the Criminal Law (Sexual Offences and
Related Matters) in South Africa states that a person who unlawfully and
intentionally commits a sexual act with a human corpse is guilty of the offense
of committing a sexual act with a corpse. The Act, however, does not specify
the exact punishment for this offense within this section. The specific
penalties for this offense would typically be determined by the courts based on
the general sentencing guidelines for similar offenses.
INCIDENTS
- The Nithari Case[16]
Facts:
- The case relates to the infamous Nithari
killings where multiple children and women were reported missing from
Nithari village, NOIDA. The investigation led to the discovery of body
parts in the drain near the house of Moninder Singh Pandher (D-5, Sector-31,
Noida) and in the enclosed gallery behind the house.
- The primary incident involves the disappearance
of a young girl named A on 5.10.2006. Accused Surendra Koli confessed to
killing A and disposing of her body parts in the drain and enclosed
gallery. Additional recoveries of
skulls and bones were made based on Koli's confession.
- Surendra Koli was arrested on 29.12.2006. He made a confession on 13.1.2007 to the
CBI, leading to the recovery of the victim's body parts. Koli's confession was recorded under
Section 164 Cr.P.C. on 1.3.2007.
Issues:
- Was the confession of Surendra Koli sufficient
to implicate Moninder Singh Pandher in the killings?
- Was the case classified as the rarest of rare
cases meriting the death penalty?
Judgment:
- Surendra Koli was convicted under Sections 302,
364, 376 r/w 511, and 201 IPC.
Moninder Singh Pandher was also convicted in two cases under
similar sections.
- Both accused were sentenced to death. Koli was sentenced to additional
imprisonment for other charges (life imprisonment under Section 364 IPC,
10 years rigorous imprisonment under Section 376 r/w 511 IPC, and seven
years rigorous imprisonment under Section 201 IPC).
- The trial court's judgment was forwarded to the
High Court for confirmation of the death sentence. The High Court heard the reference
proceedings and appeals together, delivering a common judgment.
- The court analysed the validity of the
confession, the scientific tests conducted, and the recovery of
incriminating materials. It upheld
the findings of the trial court, confirming the death sentences for both
Koli and Pandher.
The High Court confirmed the death sentences of Surendra
Koli and Moninder Singh Pandher, concluding that the prosecution established
their guilt beyond reasonable doubt in the gruesome Nithari killings. The court
found the case to fall within the category of rarest of rare cases, meriting
the extreme punishment of death.
- The Palghar Case[17]
During the COVID-19 lockdown in 2020, a horrifying
incident occurred in Palghar, Maharashtra. A shopkeeper named Shiva Choudhary
got into a heated argument with a 32-year-old female customer over the price of
goods in his shop. In the midst of the argument, Choudhary killed the woman by
slitting her throat. After murdering her, he went on to rape her lifeless body
and then disposed of it about half a kilometre away from his shop.
When questioned by the authorities, Choudhary confessed to
the crime, admitting both the murder and the subsequent rape. He explained that
his actions were driven by a sense of compulsion, as he had been separated from
his wife for more than a year. Following his confession, Choudhary was
immediately arrested. To determine if there were any underlying mental health
issues that contributed to his actions, he was examined by a medical
professional.
- The Jalandhar Case[18]
In December 2023, a disturbing case of necrophilia was
reported in Jalandhar. An e-rickshaw driver in his early thirties was arrested
for the murder of a 22-year-old nurse. The accused admitted to killing the
nurse by pressing her neck against the seat of his e-rickshaw. After murdering
her, he raped her lifeless body and returned to the crime scene three hours
later to repeat the act. He also confessed to preying on two other women before
this incident, claiming he committed the crimes while drunk.
- The KarimGanj Hospital
Case[19]
A horrifying incident of necrophilia occurred in Assam in
April 2024. A young girl tragically died by suicide, and her body was taken to
a hospital morgue for a post-mortem. Shockingly, it was later discovered that
the girl's corpse had been raped by a hospital worker, a sweeper named Manju
Rabi Das. The police are currently investigating this disturbing crime.
CONCLUSION
Necrophilia is a deeply disturbing and complex phenomenon
that has existed throughout history. The psychological aspects of necrophilia
suggest that it stems from a combination of mental disorders, traumatic
experiences, and extreme power dynamics. Modern cases, such as those of Jeffrey
Dahmer and the Nithari killings, highlight the need for a better understanding
of this phenomenon and more robust legal frameworks to address it.
In India, the current legal provisions are inadequate to
deal with necrophilia effectively. Specific laws need to be enacted to
criminalize necrophilia, ensuring that the dignity of the deceased is upheld
and justice is served. Ethical considerations further emphasize the need to
respect the deceased and prevent such heinous acts. As societies evolve, it is crucial to address
such dark aspects of human behavior through comprehensive legal and
psychological approaches. By doing so, we can ensure that justice is served and
the dignity of the deceased is protected.
In conclusion, necrophilia is not only a criminal act but
also a severe violation of ethical and moral principles. Addressing this issue
requires a multifaceted approach, including legal reforms, psychological
support, and public awareness. By taking these steps, we can work towards a
society that respects the dignity of all individuals, both living and deceased,
and ensures justice for the victims of such heinous acts. The journey towards eradicating necrophilia is
challenging but necessary. It involves acknowledging the existence of this dark
aspect of human behavior, understanding its roots, and taking concrete steps to
prevent it. By doing so, we honor the memory of those who have been victimized
and reaffirm our commitment to upholding human dignity and justice.
[1] MERRIAMWEBSTER, https://www.merriam-webster.com/dictionary/necrophilia, (last visited Aug. 1, 2024).
[2] WORLDHISTROY, https://www.worldhistory.org/article/89/herodotus-on-burial-in-egypt/, (last visited Aug. 2, 2024).
[3]SPRINGER, https://link.springer.com/chapter/10.1057/9781137030306_10, (last visited Aug. 2, 2024).
[6] MBA, https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf, (last visited Aug. 2, 2024).
[8] MBA, https://www.mha.gov.in/sites/default/files/250883_english_01042024.pdf, (last visited Aug. 10, 2024).
[13] LEGISLATION, https://www.legislation.gov.uk/ukpga/2003/42/section/70#commentary-c20916631, (last visited Aug. 15, 2024).
[14] LEGISLATION, https://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329287.html, (last visited Aug. 15, 2024).
[15] SAPS, https://www.saps.gov.za/resource_centre/acts/downloads/sexual_offences/sexual_offences_act32_2007_eng., (last visited Aug. 15, 2024).
[17]
TRIBUNEINDIA, https://www.tribuneindia.com/news/nation/palghar-stunned-by-necrophilia-a-man-raped-womans-corpse-108480, (last visited Aug. 21, 2024).
[18]TIMESOFINDIA, https://timesofindia.indiatimes.com/city/chandigarh/erickshaw-driver-arrested-for-murder-and-necrophilia-in-jalandhar/articleshow/107040593.cms, (last visited Aug. 20, 2024).
[19] FINANCIALEXPRESS, https://www.financialexpress.com/india-news/assam-shocker-hospital-staff-rapes-minor-girls-corpse-in-karimganjarrested/3451176/lite/#amp_tf=From%20%251%24s&aoh=17210544319265&referrer=https%3A%2F%2Fwww.google.com,
(last visited Aug. 25, 2024).
Article Information
NECROPHILIA: A LEGAL VACUUM AND A NEED FOR A LEGISLATION AUTHORED
Authors: HITESH NARISETTY, VALLIMIREDDY ABHINAV DEEP DORA, ROMIL ARYAN
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/12/23
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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- License CC 4.0
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