Defiling the Dead: Necrophilia and the Law

Repoter : News Room
Published: 21 November, 2020 11:37 am
Mahmodur Rahman

Mahmodur Rahman: Reports about the latest investigation into the sexual assaults carried out by Munna Bhagat in a hospital in Dhaka has shocked everyone. Report states that Munna had engaged in indecent, sometimes sexual behaviour with human corpses.This sexual abuse of corpses is shortened to the term Necrophilia.

The term necrophilia was coined by Belgian Alienist, Joseph Guislain, who first used it in a lecture in the year 1950. Also called ‘Thanatophilia’ or ‘Necrolagnia’, necrophilia is an ailment of sexual attraction to corpses. It is pathological fascination with human dead bodies, which often takes the form of a desire to engage with them in sexual intercourse or sexual activities.

It is a punishable offence with imprisonment or fine or both according to the laws of many nations. Although, this heinous misdemeanour is prohibited by the laws of many countries, Bangladeshi laws are very much silent, or say, unclear in this regard in spite of barbarism that is associated with necrophilia, as, it must be noted that ‘sex with corpses’ is not explicitly stated in the Indian Penal Code, however the person convicted with the above offence can be charged under section 297 and 377 of the Code. This article is an attempt of discussing law’s and instances relating to necrophilia in some countries.

Necrophilia, also known as necrophilism, necrolagnia, necrocoitus, necrochlesis, and thanatophilia, is sexual attraction towards or a sexual act involving corpses. It is classified as a paraphilia by the World Health Organization (WHO) in its International Classification of Diseases (ICD) diagnostic manual, as well as by the American Psychiatric Association in its Diagnostic and Statistical Manual (DSM).

Different authors and researchers classify necrophilia in different categories. In 1989, Jonathan Rosman and Philip Resnick classified necrophilia into three types based on the acts of the necrophiles (persons practicing necrophilia) on the corpses, as: Homicidal Necrophilia- the necrophile under this category murders a person to obtain the corpse for sexual gratification; Regular Necrophilia- in this the necrophile uses already dead bodies for sexual pleasure; Necrophilic Fantasy- these necrophiles just fantasize about the sexual activity with corpses without carrying out any necrophilic acts.Necrophilia is gender neutral, it goes beyond gender positioning and individual sexual curiosity,as there have been cases of females having sexual intercourse with the male dead bodies and vice versa, it has been observed that generally and mainly only men engage into such activities.

There are many nations that do not have specific laws against necrophilia and Bangladesh is one such nation. The only law related to corpses in Bangladesh is section 297 of Penal Code that relates to trespass on burial grounds. For a person to be punished under this section he/she should have trespassed into the burial ground with an intention to offer indignity to the corpses, this indignity may include having sexual intercourse with it, i.e. commit necrophilia. Hence, for the person to be punished for necrophilia under this section, the pre condition is, the person must have trespassed the burial ground first and then had sexual intercourse with the corpse after digging it out of the grave, or otherwise. This keeps the people who commit necrophilia otherwise than trespassing into a burial ground out of the clutches of the Bangladeshi law hence Munna Bhagat. Technically, if a morgue keeper engages into sexual intercourse with the dead body, he could not be punished for offering indignity to the corpse because he had not trespassed into a burial ground and there is no law to punish one who offers indignity to a corpse (has sexual intercourse with it) without trespassing into or outside the burial ground under our penal code. Also, even if such an incidence is proved, that the person has had sexual intercourse with the corpse after trespassing into the burial ground, the person so committing it would be punished with an imprisonment of not more than one year or fine or both. This punishment, not extending one year, in any prudent human’s view, is very less for such unnatural offences of offering indignity to any human corpse in the form of sexual intercourse. Perhaps, the drafters of the Code did not intend the act of necrophilia to be punished under this section, had they intended, they would have clearly mentioned it in the Code and the punishment also would have been more than what is there in the section 297 of the Code.

Due to this provision in an Indian case namely Nithari case,the two accused, Mohinder Singh a rich business and politically influential man and his cook Surendar Koli were not punished for necrophilia

Another such case came into light in Mumbai where the sessions court sentenced the accused to life. According to the Indian Express newspaper, the accused had lured the girl victim to his flat where he beat her to death and then sodomised her. The accused confessed to having murdered the girl and sexually abusing her dead body.However, he was punished for raping and murdering the girl and not for the post death sexual intercourse.

There have been debates on whether section 377 of the Penal Code could be invoked in such cases. Since having sex with a corpse is not natural and hence falls under the category of unnatural offence, however one of the main ingredients of this section is the “voluntariness” and there is no way the consent could be taken from a corpse and if the consent is absent, the intercourse would also be involuntary, hence dissuading from the section. The second element is that the intercourse should be done with a man, woman or an animal; however, a dead body is called a dead “body” because it is not a “people” anymore. They are most certainly human, but once a person dies he/she becomes quasi- subjects before the law. A dead body’s legal status often makes necrophilia all the more impossible to fathom when we think about it in relation with the sacredness that many families will view a corpse as holding- the person may be dead, but they remain a loved one. And, in the eyes of law, a dead body becomes a kind of “property” for the next of kin that makes necrophilia a vandalism and not a sexual attack against a person.Now the question is under what provisions would such people be punished, whether under section 297 for trespassing into the burial ground and offering indignity to the corpse or under section 377 for unnatural sexual intercourse!

Now let’s have a look over laws of few other nation’s.Necrophilia is not explicitly mentioned in Australian law; however, under the Crimes Act 1900 – Sect 81C, penalised for misconduct with regard to corpses is any person who:(a) indecently interferes with any dead human body, or (b) improperly interferes with, or offers any indignity to, any dead human body or human remains (whether buried or not), and shall be liable to imprisonment for two years.

Article 212 of the Brazilian Penal Code (federal Decree-Law No 2.848) states as follows:

Art. 212 – To abuse a cadaver or its ashes:

Penalty: detention, from 1 to 3 years, plus fine.

Although sex with a corpse is not explicitly mentioned, a person who has sex with a corpse may be convicted of a crime under the above Article. The legal asset protected by such Article is not the corpse’s objective honour, but the feeling of good memories, respect, and veneration that living people keep about the deceased person: these persons are considered passive subjects of the corpse’s violation.

In United Kingdom Sexual penetration of a corpse was made illegal under the Sexual Offences Act 2003, carrying a maximum sentence of two years’ imprisonment. Prior to 2003, necrophilia was not illegal; however, exposing a naked corpse in public was classed as a public nuisance in R v. Clark.

Necrophilia is, today, though a poorly understood phenomenon almost all the countries have laws against it; some countries have strong ones and some weak or unclear. Bangladesh falls under the lowest strata of the latter category of the countries since its laws in this respect are weaker and more unclear than others. This weakness and unclearness has given rise to a deliberate doubt on sections 297 and 377 of the present Penal Code as to whether it makes necrophilia a criminal offence or not, keeping in view the recent incident of necrophilia, it is the high time, the legislature shall clarify the stand by taking an action to criminalise it either by amending the Penal Code or by inserting a new section to it.

Mahmodur Rahman: Student; Department of Law, Jagannath University