Introduction
What lies beyond death? For some, a perverse attraction. One of the psychosexual disorders includes a morbid fascination towards the dead (particularly an erotic attraction to corpses) called necrophilia and DSM-IV classifies it among a group of disorders called ‘paraphilias’ which also includes behaviours like paedophilia, exhibitionism, and sexual masochism. Paraphilia is a disorder with unusual sexual behaviour, different from non-pathological sexual preferences or fantasies, i.e., occasional strange or unconventional fantasies, when not acted upon may not necessarily fall within the ambit of a disorder.[1] The urges and behaviours may involve unusual objects, activities, or situations that are not usually considered sexually arousing by others.
The recent exoneration of a minor’s assailant in a necrophilia case, by the Chhattisgarh High Court showcased the judiciary’s helplessness in addressing such matters due to statutory restraints. The pitiful outcome of the judgement highlights the inherent limitations of the judiciary in the absence of adequate statutory support. Disorders, unlike insanity, do not hamper the capacity of the perpetrator to have full knowledge and intent of their act. Thus, there is no ground to negate accountability under the law but the current legal framework has no means to address this grotesque phenomenon.
Judicial Rulings in India- A look at the recent offenses.
The recent disturbing incident where the Chhattisgarh HC had to acquit a man for rape charges who kidnapped, murdered and raped a minor due to the absence of laws punishing necrophilia in India was not the first case, and India is witness to several other gruesome incidences like The Nithari case, The Palghar case, The Jalandhar case, and The Karim ganj hospital cases in its not-so-distant past. History and mythology are also replete with such examples worldwide, showing the awareness of such a condition for ages. One such story is related to the Egyptian Goddess Isis who conceived her son Horus by using the dismembered part of her consort Osiris after he was murdered. Then there is the Judean king Herod the Great (circa 74 to 4 B.C.) who kept the body of his most beloved wife preserved for 7 years to have intercourse with her. Even the classic “Sleeping Beauty” tale embodies a necrophiliac fantasy.
Despite it being a long-known phenomenon in the history of mankind, the laws are obstinately silent about it. In the case of Rangaraju v. State of Karnataka(2024), the Hon’ble Karnataka High Court raised concerns regarding the lack of legislation in such regard. The court discussed in its judgment whether sexual intercourse or penetration of a corpse would be punishable under section 376 of the Indian Penal Code, 1860 (hereinafter, “the IPC”) and answered in negative as S.375 and 376 do not apply to dead bodies, only protecting the interests of living ‘persons’.
The Court further observed that current provisions only recognise trespass of burial grounds, which remains largely insufficient for addressing the gravity of the problem as imprisonment may extend up to a year only.
Courts Interpretation on Necrophilia and rights of a dead person
In many landmark judgments, the Hon’ble Apex Court has held that the right to dignity and fair treatment is not only available to a living man but also to his dead body under Art.21 of the Constitution. It also encompasses within its ambit the right to die in a dignified manner and ancillary rights of treatment after death and burial. Even unclaimed bodies have the right to a reverent cremation and their dignity must be protected.
Though there has been no explicit mention of necrophilia as a crime, several provisions showcase the intent of the law in protecting the sanctity of the grave. The notion that a dead person has a reputation that can be defamed illustrates the importance of dignity even after death. This bolsters the idea that the deceased, like the living, have a right to protection against exploitation and degradation, even if they can no longer defend themselves.
Laws on Necrophilia in other Jurisdictions
In the UK under section 70 of the Sexual Offences Act 2003, if any person commits an act of Necrophilia or penetrates intentionally any part of a dead person is a punishable offence with two years of imprisonment. Australian laws do not mention necrophilia as an offence explicitly but as per section 81C of the New South Wales Crimes Act,1900 if any person commits misconduct or indecently interferes or offers any indignity to a dead body or human remains is a punishable offence with two years of imprisonment.
In the US there is no federal law on an act of sexual intercourse with a corpse or necrophilia, however, different states have their own set of laws in this regard which make necrophilia a punishable offence. In New Zealand, necrophilia is a punishable offence under section 150 of the New Zealand Crimes Act, 1961, “if someone improperly or indecently interferes with or offers indignity to any dead human body or human remains which is punishable with two years of imprisonment”.
Most municipal laws, including India, do not explicitly categorise “necrophilia” as a distinct offence but address it under provisions punishing indecent interference with or indignity to human corpses. This indirect approach highlights its implicit criminalization in many jurisdictions.
While some countries impose nominal penalties and others completely fail to recognise it as an offence, the overwhelming consensus in many countries to criminalise such behaviour reflects the shared acknowledgement of its disturbing nature and a clash with societal moral standards. Immoral acts do not necessarily translate as “illegal” acts, but the harm associated with necrophilia is not only a violation of the deceased’s dignity but also inflicts profound distress on the family, friends, and society. The emotional and psychological harm caused by the violation of a deceased person’s body goes beyond a simple moral disapproval as it disrupts social harmony and peace of mind, making it a matter of public safety and emotional well-being.
Impact of the absence of laws
In the absence of any explicit legislation, where both rape and murder were to take place, a slight alteration in the sequence of events-murder before rape could lead to a significantly reduced sentence as the person can only be convicted of murder if caught, with the rape charge going unpunished. This reflects a troubling gap in the legislative arena, where criminals could easily exploit the system to avoid accountability for their actions, by strategically altering the sequence of their crimes to minimise punishment. Forensic Psychologist Anil Aggrawal introduced a ten-tier classification of necrophiliacs based on the increasing severity of the disorder, and class IX necrophiliacs do exactly that-they kill victims before raping them.
In his seminal work, Psychopathia Sexualis, Richard von Krafft-Ebing called ‘necrophilia’ a horrible manifestation of sadism. However, it is important to realise that the legislative framework addressing necrophilia cannot operate as a blanket provision criminalising all forms of the behaviour indiscriminately. During the Middle Ages, the Christian Church condemned necrophilia as a grave sin which with advancements in forensic science and a greater understanding of mental health, is now primarily viewed as a psychological disorder rather than a moral failing. Necrophilia encompasses various subtypes, some of which arise from psychological issues that necessitate therapeutic intervention rather than a punitive measure. These cases lack the requisite mens rea—the intent to commit an egregious act with a deceased body—and are thus distinguishable from instances warranting criminal culpability. A medical student experiencing an involuntary physiological reaction, such as an erection while dissecting a cadaver (commonly categorised as Class IV necrophilia), may be entirely unaware of his condition and lack any intent to engage in wrongful conduct. Similarly, role-players (Class I) or romantic necrophiles (Class II), acting predominantly out of emotional impulses rather than a deliberate intent to cause harm or provoke distress, highlight the necessity for assiduous legal treatment of this issue considering the intent and peculiar condition of the concerned person.
In the absence of explicit laws, prosecuting severe intentional necrophilia could be challenging and without legal consequences, individuals inclined toward necrophilia may feel emboldened to act on such impulses, showcasing a murky morbid side of human psychology. This may best be controlled through legal intervention in civilised societies.
Conclusion
When necrophilia has been clinically identified as a psychological disorder, the state bears an undeniable responsibility to regulate and control such abhorrent behaviour through a stout legal structure. It is disconcerting that this lacuna in the law is not merely a contemporary oversight but a longstanding issue that demands immediate comprehensive legislative intervention. The scales of justice must carefully weigh between assistance and accountability for framing just laws. The dignity of the deceased, the peace of their families, and even the welfare of the accused all hinge upon the state’s ability to act decisively. If the law remains silent in the face of such grotesque acts, one must ask: Can a state that fails to protect its dead truly claim to protect its living?
This blog is written by Rakesh Singh and Vidisha Banerjee, B.A.LL.B (HONS.), 4th year and 2nd year student respectively, Dharmashastra National Law University, Jabalpur.
[1] McManus, M. A., Hargreaves, P., Rainbow, L., & Alison, L. J., Paraphilias: definition, diagnosis and treatment, 5 Nlm 1, 1 (2013).