This article is written by Khan Saba, pursuing Certificate Course in Real Estate Laws from LawSikho. The article has been edited by Prashant Baviskar (Associate, LawSikho) and Indrasish Majumder (Intern at LawSikho).
This article has been published by Shoronya Banerjee.
Table of Contents
Introduction
Despite the fact that the Indian Constitution is the world’s largest written constitution, it is silent on certain rights, rights that were unimaginable when the constitution was drafted. These rights are centered on the topic of whether or not a person has rights after death. Is a person recognized by the state after they have died? The answer to the latter is yes because enforcing a person’s will after his death is a clear illustration of the state’s recognition of a dead person; however, Indian laws and statutes cover the rights of a dead person in a very ambiguous manner. Necrophilia, for example, is a result of this.
The term ‘Necrophilia’ is derived from ‘nekro’ (dead body) and ‘philia’ (attracted to / love) and is defined as a paraphilia whereby the perpetrator gets sexual pleasure while having sex with the dead. A necrophiliac is a person who voluntarily indulges in such acts which are generally motivated by sexual desires.
A study by Jonathan P. does a good job of delivering 122 cases of necrophiliac behaviors or fantasies (88 from the literature and 34 unpublished cases). Necrophilia is divided into three categories: necrophilia homicide, “regular” necrophilia, and necrophilic fantasy. Necrophilia is not necessarily associated with insanity, mental impairment, or sadism. Possession of an unresisting and unrejecting companion is usually the most typical reason for engaging in necrophilia. Necrophiles frequently pick jobs that require them to interact with corpses. Despite having occupational access to corpses, some necrophiles committed homicide. This unusual disorder’s psychodynamic themes, defense mechanisms, and treatment are examined in this article.
Psychology behind necrophilia
Why do some people commit necrophilic acts? What is the psychology behind necrophilia? In this article, we are going to be looking into research that has focused on the motivations behind necrophilia in an easy-to-understand manner! By understanding why certain people commit necrophilia, we can learn a lot about human nature, as well.
There is a famous study on necrophiliacs, which gathered information on a sample of necrophiliacs including things such as their motivations, mental health, IQ, and other things. As you can imagine, it’s pretty hard to recruit a group of necrophiliacs since they aren’t exactly going to be upfront about it. So there isn’t too much data we can look at in this regard, but this study does a good job of informing us of the motive behind these acts. The researchers were able to get information on the motives of 34 necrophiliacs out of the 91 in the sample. 23 of the 34 stated that they wanted to be able to possess a romantic partner that was unresisting. This suggests to us that a load of traumatic romantic and social experiences is a key contributor here.
Fears of emotional abandonment were there for 7 of the 34 participants. There was a desire to reunite with a romantic partner. In other words, these people did not want to accept the death of their romantic partners. They didn’t want to believe they could leave them. The authors spoke about some possible events that could lead a person to the path of necrophilia.
Let’s use a made-up character, Tom, as an example. Tom developed poor self-esteem and lack of confidence in himself, which was further worsened after getting rejected by his romantic partner of 4 years, Samantha. For as long as he could remember his family was very emotionally avoidant and his desire for acceptance and love in his family was often affected by the violent fists of his father or the verbal abuse of his mother who often told him she never loved him and hated the fact that she ever gave birth to him. As time passed he was also hurt by numerous friends and he was unable to trust many people, as a result. Tom had been on a few dates after his relationship with Samantha ended, but each one ended horribly. As his fear of rejection by women and people, in general, continued to heighten, he began to desire more and more, a sexual object that could never reject him. At first, he resorted to his fantasies about women, but gradually he started to fantasize about having sex with a corpse. He had an increasing desire to act out these fantasies, and his job as a morgue attendant meant that he had occupational access to corpses. One day he finally acted on these impulses.
Nowadays, although not as extreme as the necrophiliac, we can see similar incidents in our society. Many people have experienced traumatic events. In one study using a representative national sample of around 3,000 people, the DSM-5 criteria were used to see how much trauma the average person experienced. It was estimated that 90% of the participants had been exposed to traumas such as sexual assault, physical assault, warfare, or accidents, and exposure to multiple traumas was the norm rather than the exception. These findings aren’t anything new. They have been replicated over and over again. True, it’s unlikely that a person will ever be insecure to the level of a necrophiliac, but it’s still important to understand the dynamic of all of your current relationships, and how the trauma you’ve experienced might be affecting your behavior.
Classification of necrophilia
Jonathan P. Rosman and Phillip J. Resnick defined two kinds of Necrophilia in 1989. The first is known as “genuine necrophilia,” which involves a strong sexual attraction to corpses. The second is “pseudo-necrophilia,” which is characterized by a temporary sexual attraction to corpses rather than a permanent erotic predilection for them.
Anil Aggrawal authored a study called “A new classification of necrophilia” in 2008. He mentioned in the article that there are at least ten different varieties of necrophiliacs. The following is a short description of the 3 different varieties of necrophiles:
1. Homicidal necrophiles
These necrophiles are the most dangerous of all the necrophiles. Homicidal necrophiles kill living individuals in order to have sexual relations with them. Because the sexual activity is undertaken on the fresh bodies of the deceased, such incidents are frequently referred to as “warm necrophilia.”
Sadism and passion are included in homicidal necrophilia. The case of American serial killer Jeffrey Dahmer is a well-known example. He was aroused by the fragments of his victims’ bodies that he preserved. He was also thought to have been aroused by the carcasses of dead animals.
2. Regular necrophiles
Even if they have the opportunity of having sexual intercourse with the living, this type of necrophile prefers intercourse with the dead. Even if they had the option, they do not enjoy having sex with living people.
This includes people who steal dead bodies from mortuaries and cemeteries. This does not include a graveyard attendant who had sex with the dead because a dead body was readily available to him. He would also fall into this category if he preferred to have sex with the dead even while he had the opportunity to have intercourse with the living. Intercourse with the living is available for regular necrophiles, but it does not change their preference.
3. Romantic necrophiliacs
These necrophiles have minor necrophilic inclinations and are unable to accept the fact that a loved one has passed away. They usually mummify the bodies of their loved ones and continue to have sexual relations with them. This inclination is usually temporary, but it can potentially last for years or even decades. Most necrophiles suffer from various mental illnesses and require psychiatric treatment.
Indian laws pertaining to necrophilia
Although Indian law is very unclear about a crime like necrophilia, they do not jeopardise the human rights of a person after their death. Article 21 of the Indian Constitution not only recognises the right to live with dignity and respect but also includes the right to die with dignity. The Supreme Court in Parmanand Katara v. Union of India, recognised that Article 21 provides for the right to life, fair treatment, and dignity, and these rights not only extend to living people but it also implies to the dead. In the case of Ashray Adhikar Ahiyan v. Union Of India, the High Court ruled that the dignity of the dead must be respected and that the deceased homeless people are entitled to a proper cremation according to their religious customs. In the case of Ramji Singh and Mujeeb Bhai v. State of U.P. & Ors., the Allahabad High Court stated that Article 21 rights also include the right to treat the corpse with the respect that he or she deserves throughout life and to protect the dignity of the deceased person. The court also said that the post-mortem should be avoided unless absolutely necessary.
According to Section 297 of IPC, “whoever enters the religious place, or sepulture with the intention and knowledge of hurting religious feelings and sacraments of any person, commits the offense of ‘trespass to burial grounds’ and is liable to be punished with imprisonment for a term which may extend to one year, or with fine, or with both.” As a result, the most important requirement for a person to be accused of necrophilia is trespassing on burial grounds, which does not suffice to penalize necrophilia in and of itself. This clause is insufficient to address necrophiliac behavior for a variety of reasons.
First and foremost, corpses and cadavers can be found in a variety of locations other than cemeteries, such as morgues, crime scenes, and so on. Secondly, even if they are detected partaking in any such act, individuals such as morgue keepers, morgue guards, or guards of the burial grounds cannot be held accountable because they did not commit a trespass.
Finally, even if the prosecution proves beyond a reasonable doubt that a person defiled a corpse by trespassing into the burial ground, he will be sentenced to one year in prison, a fine, or both.
Section 377 of the Indian Penal Code, on the other hand, states that “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal” may include necrophilia under its ambit. The Supreme Court stated in the case of Childline India Foundation v. Allan John Waters that there must be an act of carnal intercourse and that such act must be against the natural order to establish a criminal under Section 377. An act that is against the natural order must be extremely rare and cannot result in procreation. Although necrophilia appears to be against nature’s order, the term “voluntarily” makes it difficult to place it in this section.
This section only applies to voluntary acts of sexual intercourse that are contrary to nature’s order. Because the dead cannot give or refuse consent, determining whether necrophilia is voluntary or not becomes impossible. If the act is performed without consent, it is considered rape, and thus falls outside the scope of Section 377, which deals with unnatural offenses. Because of the ongoing disagreement over the term “voluntarily,” necrophilia is not covered under this section, thus the right to dignity of departed citizens remains unprotected.
Rising cases of necrophilia in India
Necrophilia is not provided the recognition it deserves in India. The Indian legal system lacks key legal safeguards and contains ambiguous laws, resulting in major loopholes for crimes such as necrophilia. Due to such potential loopholes, the judiciary, constrained by the law, is forced to acquit the accused. In the last decade, India has seen an increase in incidences of necrophilia, not only in places like mortuaries but also in cases where people are digging up buried bodies and even murdering others for raping their bodies.
The Nithari case (2006) is one of India’s most well-known examples of necrophilia, in which the accused and his servant were arrested after it was discovered that 19 girls had gone missing after visiting the accused’s home. Several pornographic CDs and naked images of various women and children were discovered in his home during the inquiry, and the accused and his servant were charged with murder, rape, kidnapping, sexual assault against children, and cannibalism. The servant admitted to the crimes and indicated that the accused was responsible for the deaths of 16 individuals. He used to murder his victims in his living room before dragging their bodies upstairs to a bathroom and attempting to rape them and then chop them into small pieces to cook them and throw the rest into the drainage behind his bungalow.
In 2018, a 20-year-old laborer from Gurugram admitted to raping the corpse of numerous of his victims in order to satiate his lust for sex and maximize his catch. In another case in Uttar Pradesh, it was discovered that a deaf and mute guy attempted to rape the woman, but when she fought, he strangled her to death and raped her corpse.
In May 2020, police in Assam detained a 50-year-old man for allegedly having sexual relations with the deceased body of a 14-year-old girl. Skarkur Lucas, a cemetery attendant from Ghana, admitted on a live streaming news channel in 2015 that he had many times sex with the dead bodies of girls in the mortuary because he didn’t have a girlfriend. In the majority of these cases, the offenders are charged with murder, rape, sexual assault, and cannibalism, depending on the circumstances, but not with necrophilia because the statutes are so broad. Because of the ambiguity of the laws, the state is unable to draft appropriate charges, and this nebulous crime goes unpunished.
International stakes on necrophilia
We will not be able to build perfect legislation unless and until we are willing to accept the views of worldwide communities. The same is true with Indian laws, which are updated on a regular basis to address gaps in the existing legislation. When it comes to brutal crimes like necrophilia, a comparable modification is required, and international rules have paved the way in some ways.
Although there is no federal legislation against necrophilia in the United States, certain federal states have passed laws prohibiting it. In terms of New Zealand law, Section 50 of The Crimes Act, 1961, provides for a two-year sentence for anyone who violates the dignity of a corpse, whether buried or unburied.
The act of defiling the deceased is also prohibited under Canadian law. “Whosoever 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” according to Section 182 of The Criminal Code of Canada, 1985.
Although the Indian and Canadian provisions appear to be similar in phrasing, the Canadian provision is broader and covers everybody, whereas the Indian law only covers those who have trespassed on the burial grounds. In addition, Canadian law specifies a five-fold higher penalty than Indian law.
Conclusion
The heinous act of necrophilia is not only a crime against society, but it is also a crime against humanity. Denying the basic right to a respectful burial as well as a crime against the deceased’s feelings. Despite this, the legislation is stagnant and out of date in this area. However, the country appears to be in desperate need of better legislation.
The length of imprisonment stated in Section 297 against such a crime should be raised to establish a deterrent effect among individuals because the change would be difficult to achieve without laws that harshly penalize such illegal activities.
In addition, the Indian laws in this area appear confusing, necessitating revisions as well as increased penalties. It is past time for Sections 297 and 377 to be amended, or for a separate punitive provision to be added to portray a clear legal stance in this regard with severe penalties
The word ‘trespass’ should be removed from Section 297’s scope to ensure that no one, not even the guards of the cemetery, is exempted from its purview. Second, in addition to man, woman, and animal, the word ‘corpse’ might be incorporated in Section 377, which would undoubtedly attract Section 377 in the case of necrophilia.
References
- Boureghda, S. S., Retz, W., Philipp-Wiegmann, F., & Rösler, M. (2011). A case report of necrophilia–a psychopathological view. Journal of forensic and legal medicine, 18(6), 280–284.
- Aggrawal A. (2009). A new classification of necrophilia. Journal of forensic and legal medicine, 16(6), 316–320.
- Necrophilia: An Understanding: June 2019 The International Journal of Indian Psychology 7(2):607-616 DOI:10.25215/0702.073
- Rosman, J. P., & Resnick, P. J. (1989). Sexual attraction to corpses: a psychiatric review of necrophilia. The Bulletin of the American Academy of Psychiatry and the Law, 17(2), 153–163.
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
