In the US, two males were accused of breaking into the morgue at Forest Lawn Memorial Park in Hollywood Hills on September 19, 1995, and having sex with two female corpses. Police declared the two guys were being detained on suspicion of burglary the next day. Police said that because it is lawful in California to have sex with a body, the two males were not prosecuted for having intercourse with a corpse. As a result, the individuals were held accountable for the alleged theft of computer chips from a personal computer within the morgue after breaking in. It seems entirely insufficient to prosecute those who commit necrophilia with burglary or any other incidental crime, regardless of the worth of the items taken from the morgue.
In Pakistan, a 40-year-old man has been arrested by Karachi Police on charges of desecrating graves and engaging in necrophilia in a startling episode that has caused disgust to spread throughout the city. Following a tip from neighbours who saw him in the act in Karachi’s Korangi graveyard, he was arrested on Friday, August 9, 2024. Salman Waheed, the accused, admitted to sexually abusing the corpses of four ladies, according to the police. The most recent instance included a 55-year-old woman’s burial, where she had been interred only the night before. Locals grabbed Waheed red-handed and thrashed him before turning him over to the police. Sections 297 (trespassing on burial places), 376 (punishment for rape), and 354 (attack or criminal force on a woman with intent to insult her modesty) of the Pakistan Penal Code are the grounds under which the police have filed a case against Waheed. The deceased woman’s son filed the case after learning of his mother’s cemetery being desecrated and her body being molested.
In India, the Chhattisgarh High Court (HC) has regressively recorded that although having sex with a deceased person’s body is one of the most heinous things that can be done, it is not covered by Section 376 of the now-repealed Indian Penal Code (IPC) or the Protection of Children from Sexual Offences (POCSO) Act, 2012. The High Court made the statement while maintaining the acquittal of Neelu Nagesh, a guy who was convicted of other crimes but had a case against him for raping a minor’s corpse (necrophilia). A bench headed by Chief Justice Ramesh Sinha and Justice Bibhu Dutta Guru observed: “Such provisions apply only when the victim is alive. There is no doubt that the offence committed by the accused—Neelkanth alias Neelu Nagesh raping a dead body is one of the most horrendous crimes one can think of.” The bench further insensitively stated: “But the fact of the matter is that as of date, the said accused cannot be convicted for the offence punishable under Sections 363, 376 (3) of the IPC, Section 6 of the POCSO Act, 2012 and Section 3(2)(v) of the Act of 1989 as the offence of rape was committed with a dead body. For convicting an offence under the sections above, the victim should be alive.” Such a backsliding decision from the trial court to the high court is, indeed, a judicial approbation of an act of necrophilia in the absence of an opaque definition of “rape” under IPC.
Necrophilia Conundrum
A morbid, pathological obsession with death and the dead, or more specifically, an erotic attraction to corpses, is known as necrophilia. As a psychosexual condition, necrophilia falls within the category of disorders that include paraphilias, a subtype of psychosexual disease that involves strange or weird fantasies or behaviours required for complete sexual arousal. The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (The Manual) lists eight distinct paraphilias, including sexual masochism (sexual arousal attained through being humiliated, bound, beaten, or otherwise made to suffer), exhibitionism (repeated acts of exposing the genitals to achieve sexual excitement), and paedophilia (the act or fantasy of engaging in sexual activity with prepubescent children). Apart from the eight recognised paraphilias, there is a category of “Not Otherwise Specified” paraphilias that includes necrophilia as well as conditions like urophilia (urine), coprophilia (faeces), zoophilia (animals), klismaphilia (enemas), and telephone scatology (obscene phone calls).
The Manual warns that sexual ideas, behaviours, or items used as stimulants for sexual enjoyment in people without paraphilia should be differentiated from paraphilias. Only when fantasies, actions, or items cause clinically substantial suffering or impairment—like legal issues or disruption of social relationships—are they considered paraphilic.
Justice sans Dignity
HC could have resorted to a nuanced human dignity-based interpretation (HDBI) of “dignity” in life and death. Dignity requires the application of the Constitutional Law of India (CLI), International Human Rights Law (IHRL) and Customary International Law (CIL). The right to die with dignity, which includes how one’s corpse is treated after passing away, is protected under Article 21 of the Constitution of India, which has become a judicially created National Charter of Human Rights due to the HDBI hitherto. Moreover, India has ratified most UN Conventions on Human Rights and Fundamental Freedoms and endorsed its international human rights commitments. Therefore, when it comes to IHRL, it primarily concentrates on the right to life with human dignity, including freedom from torture and cruel treatment, the right to privacy, and the right to dignified last rites.
Though human life is praised and safeguarded, its unavoidable “other side” is constantly portrayed negatively and is considered “not worthy” or even blasphemous. This has to do with the negative societal view of death as being under the category of loss. Necrophilia is still viewed under IHRL as cruel and inhumane treatment (1984 UN Convention on Torture) rather than as a kind and sympathetic conduct because of the disturbing historical connotations with Nazi activities (Holocaust). This is an odd occurrence in a society that firmly upholds the rights of individuals to human dignity under CIL. Dignity is the soul of the IHRL and constitutionalism.
The threshold for human rights and its implementation is that the right to a dignified death does not harm any other member of society or society. Additionally, HC could not re-imagine the way this phenomenon is now regulated, and conforming IHRL paints a picture of “sex” based discrimination in violation of Article 15 under the Constitution of India and Article 1-2 of the UN Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979) which condemn discrimination against women in its all forms.
Way Ahead
Every society where records exist has traditions on handling the deceased and showing respect for their body. In some instances, such as Egyptian pyramids, mummies, and the Book of the Dead, these traditions are essential to a culture’s core beliefs and symbols. Occasionally, the traditions are founded on guidelines for handling human remains. In any case, there is one element that all funeral traditions have in common: the belief that the deceased has not yet passed away. It is crucial to consider whether emotion, no matter how strong, can justify coercive law if it is true that our culture uses a social trepidation meter to determine how it treats the deceased and how it responds to strange sexual activities.
Scholars would undoubtedly be unhappy with such a sentimental approach to legislation. Necrophilia, in contrast to other deviant sexual behaviours, also transgresses other cultural standards that have historically been viewed as less subjective, such as the need for permission, the protection of private property ownership, and the preservation of public health and safety. Therefore, it is appropriate to make necrophilia crimes punishable by law due to the existence of these extra worries. Every occasion is right for rectifying the socio-legal gaps in the law to address the socio-psychological impact of necrophilia on kith and kin of the deceased; otherwise, necrophilia would be a source of indignation for society. It is perplexing that such behaviours are not prohibited.
Nafees Ahmad Ph.D (International Refugee Law and Human Right), LL.M. (International Law), Associate Professor, Anwar Gargash Diplomatic Academy, Abu Dhabi-UAE, [email protected], https://orcid.org/0000-0003-1791-3060
