The violation of human dignity through sexual assault is an abhorrent crime that elicits profound outrage and demands immediate attention from society. While discussions and efforts to combat sexual assault have primarily focused on protecting the living, an unsettling truth remains largely unexplored: the occurrence of sexual assault on the bodies of the deceased. This article delves into the disturbing and rarely discussed phenomenon of postmortem sexual assault, aiming to expose the dark truth that lurks within this unsettling realm. ([1])
Sexual assault on the body of the deceased is an incomprehensible act that defies societal norms, ethical boundaries, and basic human decency. It involves acts of violation and desecration committed against individuals who can no longer defend themselves or seek justice. The gravity of this crime extends far beyond its immediate victims, as it strikes at the core of our collective humanity and challenges the sanctity and respect owed to the dead. As we know that right to dignity and fair treatment under article 21 of Indian constitution is not only available to living human but also to the deceased person but till date, we don’t have a proper law for this.
RAPE
As we know that rape is a very heinous crime but when it comes to sexual assault on the body of deceased then there is no concrete rule. Rape is a devastating crime that inflicts severe physical, psychological, and emotional trauma on its victims. The pervasive nature of sexual violence has prompted extensive discussions, awareness campaigns, and legal reforms to address and prevent such acts. However, amidst these conversations, a deeply disturbing and seldom-discussed aspect of rape emerges: the occurrence of sexual assault on the bodies of the deceased. ([2])
Under Section 375 of India’s Indian Penal Code (IPC), the definition of rape is typically narrower when it comes to sexual assault on the body of the deceased. In most legal systems, rape is defined as non-consensual sexual penetration or intercourse with another person without their consent. However, the applicability of this definition becomes limited when it involves the deceased.
In many jurisdictions, the legal framework surrounding sexual offenses typically requires the victim to be alive at the time of the assault for charges of rape to be applicable. This limitation is due to the requirement of consent, which is an essential element of the offense of rape. As the deceased person cannot provide consent, the narrow interpretation of rape excludes the possibility of charging someone with rape for engaging in sexual acts with the body of the deceased.
Instead, laws may encompass specific offenses or charges related to the desecration, abuse, or mistreatment of a corpse. These offenses may fall under different legal categories, such as necrophilia or outraging the modesty of a dead body, depending on the jurisdiction. These charges focus more on the violation of the dignity of the deceased rather than considering the act as a form of rape.
This narrower definition and categorization of sexual assault on the body of the deceased can create legal loopholes and gaps in addressing the gravity of the offense. It highlights the need for specific legislation that acknowledges and treats these acts as severe violations, with appropriate legal consequences that reflect the seriousness of the crime.
SECTION 377 OF IPC
Section 377 of the Indian Penal Code (IPC) criminalizes “unnatural offenses,” including consensual same-sex sexual acts. While Section 377 primarily focuses on sexual acts between living individuals, it does not explicitly address postmortem sexual assault or sexual acts committed on the body of the deceased. This highlights a legal gap in addressing these specific offenses. ([3])
However, it is important to note that Section 377 was subject to significant legal scrutiny and underwent a landmark judgment by the Supreme Court of India in 2018. The court decriminalized consensual same-sex relationships, ruling that Section 377 violated the fundamental rights to equality, privacy, and dignity as enshrined in the Indian Constitution. While the connection between Section 377 and postmortem sexual assault may not be direct, the legal reform surrounding Section 377 reflects a broader recognition of the rights, dignity, and autonomy of individuals in the context of their sexual relationships but still it lacks when it comes to recognition of individual rights and dignity extends to the deceased.
POSTMORTEM SEXUAL ASSAULT
Postmortem sexual assault refers to the act of engaging in sexual activity or violating the body of an individual after their death. It is a highly disturbing and heinous crime that involves the desecration of the deceased person’s body.
The motives behind postmortem sexual assault can vary, including elements of necrophilia, sexual sadism, power dynamics, or a distorted sense of control and dominance. Perpetrators may exploit the vulnerability of the deceased, viewing them as objects devoid of agency or rights. These acts are far from a common occurrence, but they serve as a stark reminder of the depths to which human depravity can reach.
Ethical considerations also come into play when dealing with postmortem sexual assault. Respecting the dignity and rights of the deceased is paramount, as is providing support to their grieving families. This involves developing sensitive and compassionate protocols for forensic procedures, victim advocacy, and counselling services to address the profound psychological and emotional impact on the deceased’s loved ones.
MOTIVES BEHIND POSTMORTEM SEXUAL ASSAULT
The motives behind postmortem sexual assault are complex and can vary depending on the individual perpetrator. While it is challenging to generalize motivations, several underlying factors have been identified through research and case studies:
- NECROPHILIA: One prominent motive is the presence of necrophiliac tendencies, which involve sexual attraction or fascination with corpses. Necrophiliacs may derive pleasure or gratification from engaging in sexual acts with the deceased, viewing the lifeless body as an object of desire.
- SEXUAL SADISM: Some perpetrators of postmortem sexual assault may exhibit sadistic tendencies. They derive pleasure from inflicting pain, degradation, or humiliation upon the deceased. The act of violating a lifeless body allows them to exert control and dominance over the powerless victim.
- POWER DYNAMICS: Postmortem sexual assault can also be driven by a desire for control and dominance. The deceased individual is completely defenceless, reinforcing a sense of power and superiority for the perpetrator. It becomes a means to exert their control over someone who can no longer resist or oppose them.
- PSYCHOLOGICAL DISTURBANCES: Individuals who engage in postmortem sexual assault often exhibit various psychological disturbances, such as antisocial personality disorder, paraphilias, or other mental illnesses. These conditions may contribute to a distorted perception of normal sexual behaviour and an inability to empathize with the deceased or comprehend the gravity of their actions.
- MORBID FASCINATION: Some perpetrators may possess a morbid fascination with death or the human body. Engaging in sexual acts with the deceased can serve as a macabre expression of this fascination, blurring the lines between sexual desire and the objectification of the deceased.
It is important to note that postmortem sexual assault is an extremely rare phenomenon, and not all individuals who engage in sexual violence are motivated by the same factors. Each case is unique, and multiple motives can coexist within a single offender. Understanding these motives can help inform prevention strategies, develop appropriate legal responses, and provide support to the families affected by these crimes.
PROVISIONS IN DIFFERENT COUNTRY
Different countries have different laws when it come to the right and dignity of deceased body. We are in 21st century but still there are nations where they do not even recognise the rights of deceased on the other hand there are some who have a separate legislation for sexual assault on the body of deceased like UK, south Africa etc.
In United Kingdom there is a separate legislation titled United Kingdom’s Sexual Offence Act 2003. Under section 70 of this act, it specifically deals with the people who commits a sexual offence on the body of deceased. South Africa has a same type of legislation which criminalise sexual assault on the body of deceased.
But there are certain countries like India and USA where we still don’t have a separate law for this heinous crime.
PROVISIONS IN INDIA
In recent time sexual assault on the body of deceased is at its peak in India. For example, there was a case in which a body of a women was gang raped and her body was found naked 20 feet away from her grave. Till date we don’t even have a separate law for this heinous crime. Most of the time offenders are charged under section 297 of Indian Penal Code which talks about the trespass on the corpse and section 377 which talks about unnatural offences.
Despite of the act being so heinous and gruesome the degree of punishment given is not in consonance with the act committed. Hence, there is a dire need to bring a new legislation to protect the right of a deceased body.
WAYS TO PREVENT POSTMORTEM SEXUAL ASSAULT
Preventing postmortem sexual assault requires a multi-faceted approach involving education, awareness, policy reforms, and effective response protocols. Here are some strategies that can contribute to preventing such heinous acts:
- EDUCATION AND AWARENESS: Increasing public awareness about postmortem sexual assault is crucial. Educational campaigns can help dispel myths, challenge misconceptions, and foster a better understanding of the gravity of these crimes. This includes educating law enforcement agencies, forensic professionals, and the general public about the existence, motivations, and consequences of postmortem sexual assault.
- POLICY AND LEGAL REFORMS: Reviewing and updating existing legislation to address postmortem sexual assault is essential. Legal frameworks should explicitly recognize and criminalize these offenses, ensuring that appropriate charges and penalties are in place. This involves filling gaps in the law to include provisions for the desecration, abuse, and violation of the deceased. Law enforcement agencies should receive specialized training on investigating and prosecuting postmortem sexual assault cases.
- ENHANCED FORENSIC PROCEDURES: Developing and implementing comprehensive forensic protocols for handling and examining deceased bodies is vital. Forensic professionals should receive training on identifying signs of postmortem sexual assault and collecting evidence to ensure a thorough investigation. This includes the use of advanced techniques such as DNA analysis, forensic photography, and other scientific methods to gather crucial evidence.
- SUPPORT FOR VICTIM’S FAMILIES: Providing support services for the families of deceased victims is essential. This includes access to counselling, trauma-informed care, and assistance navigating the legal process. Empowering families to report such crimes and ensuring their voices are heard helps facilitate justice and closure.
- COLLABORATION AND INFORMATION SHARING: Promoting collaboration between law enforcement agencies, forensic professionals, victim advocacy organizations, and researchers is crucial. Sharing information, best practices, and case studies can contribute to a better understanding of the phenomenon and help develop effective prevention strategies.
- RESEARCH AND DATA COLLECTION: Encouraging further research on postmortem sexual assault can contribute to a deeper understanding of the motivations, patterns, and risk factors associated with these crimes. Collecting and analysing data can inform prevention efforts, policy reforms, and the development of evidence-based strategies.
Preventing postmortem sexual assault requires a comprehensive and coordinated response involving legislative, educational, forensic, and victim support measures. By addressing the issue from multiple angles, society can strive to protect the dignity of the deceased and ensure that those who commit such acts are held accountable.
CASE
Judiciary has taken lots of steps to recognise the rights of deceased. Many precedents have been set up by judiciary to protect the dignity of deceased body and also to their family members. But in one of the recent case Karnataka High Court said that sexual assault on the body of deceased cannot be considered as rape under section 375 of Indian penal code on other hand directed the government to amend the provisions to take into consideration the rights of deceased body as well.
- RANGARAJU V STATE OF KARNATAKA ([4])
In acquitting a man of the accusation of committing rape on the dead corpse of a 21-year-old female after killing her, the Karnataka High Court decided that sexual assault on a dead woman will not constitute the offence of rape punishable under Section 376 of the Indian Penal Code. However, the High Court upheld his conviction for the crime of murder and maintained the trial court’s sentence of life in prison.
Judges B. Veerappa and Venkatesh Naik’s bench asked the government to either amend Section 377 of the IPC or enact a separate penal provision to criminalise necrophilia, stating that raping a woman’s dead body would not fall under the purview of rape or unnatural acts under the IPC.
- Pt. PARMANAND KATARA V. UNION OF INDIA, ([5])
It was held that the dignity of the dead body of a human being must be maintained and respected. In 1989 SC recognised that right to life, fair treatment and dignity, extend not only to a living person but also to his dead body and these rights are derived from Article 21 of the Constitution of India.
- ASHRAY ADHIKAR ABHIYAN V UNION OF INDIA ([6])
It was held by the supreme court that homeless people also have right to decent burial according to the religion to which they belong before death.
CONCLUSION
Despite of all these efforts taken by the judiciary these is no constructive outcome that has taken shape. There is still need of new law that will help to protect the dignity of a deceased. In my opinion, the law which we have currently still have certain lacunae. There is dire need to study this issue depth and make a law which in reality protect the rights of deceased.
“[1] Law corner, https://r.search.yahoo.com/_ylt=AwrKCWULgLlkVu0UDmy7HAx.;_ylu=Y29sbwNzZzMEcG9zAzUEdnRpZAMEc2VjA3Ny/RV=2/RE=1689907340/RO=10/RU=https%3a%2f%2flawcorner.in%2fright-of-dead-person-in-india%2f/RK=2/RS=W9CXhdeVsZrbJigQ8dfNtMnUucM- ( last visited 21st July 2023)”
“[2] Latest law, https://r.search.yahoo.com/_ylt=AwrKCWULgLlkVu0UFWy7HAx.;_ylu=Y29sbwNzZzMEcG9zAzYEdnRpZAMEc2VjA3Ny/RV=2/RE=1689907340/RO=10/RU=https%3a%2f%2fwww.latestlaws.com%2farticles%2frights-of-the-dead-under-the-law-and-legal-remedies/RK=2/RS=PO0JBJm.njE3dnuX4pbpuQKGIe4- (last visited 19th July 2023)”
[3] Ohrh, https://ohrh.law.ox.ac.uk/dignity-of-life-and-the-rights-of-deceased-persons-in-india-amid-covid-19/ (last visited 20th July 2023)
[4] “Rangaraju v state of Karnataka,2023 LiveLaw (Kar) 197”
[5] “Pt. Parmanand Katara v union of India, (1995)3 SCC 248”
[6]“Ashray Adhikar Abhiyan v Union of India,2 SCC 27”
Author: Sonam
Juris Centre 