“Necrophilia- a Medico-Legal analysis, Substantiated by Case Laws and Indian Penal Code”
Abstract:-
Necrophilia is the phenomenon of having sexual intercourse with deceased individuals. It is a highly unethical and socially prohibited behaviour. This term finds its roots in the Greek language, combining "philios," signifying attraction or love, with "nekros," which pertains to a deceased body. Despite it being looked down upon, there have been instances of necrophilia taking place in India. Despite this, there has been no explicit legal framework to protect the dignity of the deceased from the bane of necrophilia. Thus, there forms a need to interpret existing laws to see whether necrophilia can indirectly be established through the Indian Penal Code In light of this, Sections 375 and 377 of the Indian Penal Code offer a way to provide some amount of protection to the corpses by way of punishment. Section 375 deals with the Law on Rape and its constituents. The crux of 375 that will help to prove necrophilia lies in the fact that Rape is committed without the consent of the individual concerned. This fact also applies to necrophilia as a dead person obviously cannot provide consent. Section 377 on the other hand deals with another aspect. It prohibits all forms of “carnal intercourse against the order of nature”, previously this provision had been used to prohibit all forms of homosexual activity, but it was later been decriminalized in 2017 by a Supreme Court Judgment.
Despite this, this Section is relevant to necrophilia as it can also be said to fall under intercourse that goes against the order of nature. Recently, in Karnataka, the High Court heard a matter where an individual had sexual intercourse with a woman after murdering her. The high court was of the view that since Section 377 does explicitly mention “dead body”, the crime cannot be said to fall under the given provision.
Keywords: medicolegal, Necrophilia, paraphilia, Section 377, Section 375, Karnataka High Court Judgment. Introduction to Necrophilia:-
Necrophilia (Nekros, corpse; Philia- love)
“It is when someone finds sexual pleasure in having sex with deceased individuals.”. The perpetrators are called Necrophiles; it is a psychological disorder and a serious crime. Also known as Necrophilism, Necrolagnia, Necrocoitus, Necrochlesis and Atophilia. It can be observed independently or in connection with several other paraphilias, such as sadism, cannibalism, vampirism (the act of consuming blood from a person or animal), necrophagia (consuming the flesh of the deceased), necro paedophilia (sexual attraction to the corpses of children), and necrozoophilia (sexual attraction to the corpses of animals or the act of killing animals, also known as necro bestiality). A. Necrophiliac homicide—murder to obtain a corpse for sexual purposes.
B. Regular necrophilia—when someone engages in sexual activity with a person who has already passed away for their pleasure.
C. Necrophiliac fantasy—fantasizing about sexual activity with a corpse, without carrying out any Necrophiliac acts.
Among all the Homicidal Necrophiliacs are considered the most dangerous as they kill victims because of the need to have sex with a dead body and several serial killers, like Jeffery Dahmer and Dennis Nilsen, were involved in this behaviour.
History of Necrophilia:-
Necrophilia is a word that comes from Greek, combining "philios" (which means attraction or love) and "nekros" (which means a dead body). It means being sexually attracted to a deceased person's body. Surprisingly, this concept has been around for centuries and can be found in Greek mythology, ancient cultures, the Greco-Roman period, the Middle Ages, and even in more recent times. Mortuary attendants and funeral home workers have been known to be caught sexually assaulting corpses, and some individuals have dug up graves to obtain a dead body to have sexual intercourse. Also, some serial murderers take sexual advantage of dead victims.
Necrophilia: Medico-Legal Analysis (Article 377):-
Voluntary sexual intercourse against the order of nature with any man woman or animal is an unnatural sexual offence according to the Indian Penal Code of section 377. It can be any form of sexual intercourse which does not have a potential for procreation which had been considered an offence. The offence is usually committed on a newly buried corpse or a body awaiting burial. According to section 377 IPC, unnatural sexual offences are punishable with imprisonment for life or up to 10 years and with a fine. This offence is serious, and if someone is charged with it, they cannot get bail, and it cannot be settled through negotiation or compromise. Penetration is sufficient to the carnal intercourse necessary to the offence described in the section. The first part of the section concentrates on voluntary which means that the intercourse must be voluntary. The proving of the intercourse to be voluntary or not would be the biggest problem, in furtherance to declare necrophilia as an offence. The American Psychological Association has classified and stated 11 various types of Necrophilia:- TYPE 1: Genuine Necrophilies
TYPE 2: Pseudo necrophiles
TYPE 3: Violent Necrophilies
TYPE 4: Fantasy Necrophilies
TYPE 5: Sadistic Necrophilies
TYPE 6: Romantic Necrophilies
TYPE 7: Regular Necrophilies
TYPE 8: True Necrophilies
TYPE 9: Opportunistic Necrophilies
TYPE 10: Platonic Necrophilies
TYPE 11: Fetishist Necrophilies
Legal analysis: a Crime committed, but not considered. (Article375, Article376 and Article297):-
There are no laws certainly binding the action of necrophilia and verifying the after consequences of the action (Necrophilia). The Karnataka High Court on the necrophilia in case offer a woman belonging to Tumkur district clearly stated that necrophilia is not considered an offense as the dead body or the corpse can never be given the status of a person or a living human being. The High Court stated that this event did not fulfil the basic conditions of section 375 Of the Indian Penal Code (IPC). This is because for a rape to take place firstly the action or the sexual intercourse should involve a human being on which the action (Necrophilia) is taking place. Hence, the person who is dead cannot be given the status of a living human being.
This section 376 of the Indian Penal Code (IPC) Clearly states that if a person commits a rape of a woman incapable of giving consent, they shall be punished with rigorous imprisonment for a term which shall not be less than 10 years but which may extend to imprisonment for life which shall be mean imprisonment for the remainder of that person’s natural life and shall also be liable to fine. But the dead body cannot give any form of consent through any kind of actions behaviour or Statement. Hence, Necrophilia is not bound to be an offense inters this section of the Indian penal code.
Section 297 of the Indian penal code considers it an offence when any person trespasses to the place of burial, doing an action which offers any indignity to the corpse will be a punishment of either one year in jail, a fine, or both may be imposed.
Historical & Current Situation on Necrophilia:-
Necrophilia is something that has happened in history too. For instance, the Greek author Herodotus (c.484–425 BC), who lived a long time ago, mentioned in his Histories that in Ancient Egypt, they didn't preserve the bodies of very beautiful women right after they died. They waited for a few days to prevent situations where embalmers were found having sexual contact with the bodies of recently deceased women.
In some countries, necrophilia may not be considered a crime, but in India, it is treated as punishable under ‘trespass to burial grounds’. Only South Africa and the United Kingdom have laws that specifically punish people who engage in necrophilia, which means having sexual relations with dead bodies.
India’s stand for ‘Necrophilia’:-
Since the last decade, India has seen a significant increase in necrophilia cases, but there are currently no specific laws that address these crimes. In the current situation In India, one of the Karnataka high court cases declared that Necrophilia is not illegal in India because the Indian penal code, does not explicitly mention necrophilia and punishment for engaging in "Necrophilia activities". In this case, a 22-year-old man Rangaraju, alias Vajpayi, allegedly murdered a 21-year-old woman in June 2015 by slitting her throat when she was returning from her computer classes. The accused had reportedly raped the body of the victim after murdering her. In this case, the Karnataka high court passed a Judgement on 30th May 2023 with the division bench of Justice B Veerappa and Venkatesh Naik T held that though section 377 of the IPC defines unnatural offences, it doesn't mention "dead body" Therefore, committing rape on a dead body cannot be punished under this law. Additionally, the court viewed that the essence of guilt of rape consists of the outrage of the person and feelings of a victim of the rape. A dead body can't feel anger or any emotions. Having sex with a dead body is called necrophilia.
Conclusion:- In conclusion, the analysis of necrophilia from a legal perspective, as examined through Sections 375 and 377 of the Indian Penal Code (IPC), reveals the intricate balance between societal norms, individual rights, and the broader concept of justice. The legislative framework, as demonstrated by Section 375, focuses on the violation of consent and bodily autonomy, which are central to any understanding of sexual offences. Whereas, section 377 focuses on prohibiting unnatural forms of sexual intercourse, including necrophilia.
However, the current legal framework remains largely silent on the specific criminalization of necrophilia, raising questions about whether it adequately addresses the ethical, moral, and psychological implications associated with such acts. The absence of explicit provisions dedicated to necrophilia underscores the need for a comprehensive review of the IPC which is more than a century-old legislation, to ensure that it evolves with the changing dynamics of society and addresses previously unaddressed issues.
In essence, the exploration of the phenomena of necrophilia in the medico-legal context as per sections 375 and 377 of the IPC provides valuable insight into the realm of interpretation of statutes to meet the needs of today’s society. Furthermore, it also acts as a wake-up call to the government to take action and bring in sufficient legislation to deal with the bane of necrophilia and eradicate it once and for all.