Law and Necrophilia in Pakistan
Lois McMaster Bujold once said, “The dead cannot cry out for justice, it is the duty of the living to do so for them.
” Although Pakistan has a written constitution and plentiful penal laws covering various aspects of crime yet penal laws are silent in specifically dealing with necrophilia.
Necrophilia is derived from the Greek word nekros means corpse and philia shows love. Generally, sexual intercourse with corpses or sexual attraction toward a dead body is known as necrophilia.
It is a paraphilia whereby the perpetrator gets sexual pleasure in having sex with the dead body.
A necrophiliac is a person who voluntarily indulges in such acts which are generally motivated by sexual desires.
It is a sick abnormal fascination with the dead; or more particularly, an erotic attraction to corpses.
Research says it is a psychosexual disorder. Researchers also associate it with types of paraphilias, such as sadism (sexual pleasure by inflicting pain on others), cannibalism (eating the flesh of one’s species), vampirism (drinking blood from a person or animal), necrophagia (eating the flesh of the dead), necropedophilia (sexual attraction to the corpses of children), and necrozoophilia (sexual attraction to the corpses of or killing of animals).
Incident of necrophilia is increasing in Pakistan. It is an appalling, outrageous, abhorrent and disgraceful act not only for the victim/corpse or his/her family but also for the society at large.
The recent incident was reported in a Village, Chak Kamala, Gujrat, where reportedly some unknown men dug out the corpse of a teenage girl and raped it.
On August 15, 2021, it was reported that some unknown men dug out the corpse of a freshly-buried teenage girl and raped it in Thatta.
On March 01, 2020, as per a newspaper report, a man was arrested for rape with women’s bodies at Joiya Sharif village of Okara, etc.
Pakistan has no specific penal provision or special law dealing with necrophilia or types of it.
Currently, section 297 of the Pakistan Penal Code, available in Chapter XV of Offences Relating to Religion is the apparently applicable penal provision in our country.
The provision provides that “whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sculpture, or any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
A prudent mind does not accept that for such a heinous offence one-year punishment is provided in the law.
However, another penal provision also seems to be applicable is section 377 of the Pakistan Penal Code, 1860.
It provides that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which shall not be less than two years nor more than ten years, and shall also be liable to fine”.
But the application of this provision in the case of necrophilia can best be answered by the judicial interpretation, which is yet not available in our country.
The dearth of special legislation is also present in other countries. India also applies above mentioned penal provisions in dealing with necrophilia cases.
However, in the United States, though federal legislation does not deal with it specifically yet few states have specifically used the term Necrophilia in their particular legislations, and for which sentences range from one year (in several states) to fifteen years (in Georgia) and twenty years (in Massachusetts).
In the United Kingdom section 70 of the Sexual Offences Act, 2003 deals with this subject. Section 182of the Criminal Code of Canada, 1985,for a term not exceeding five years.
Section 14 of the Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 of South Africa prohibits the commission of a sexual act with a corpse.
In Pakistan, legislation vaguely covered the rights of a dead person by penal as well as civil laws.
Pakistan though has one of the largest written constitutions in the world and yet it is silent about certain rights, specifically the rights of a dead human being.
Though penal laws are in abundance yet the question of whether the penal laws recognize a person after his death, the question of whether the rape with a corpse amounts to rape punishable under sections 376, and 377 is still unanswered by the legislation as well as by the judiciary in Pakistan.
This gives rise to the crimes like Necrophilia. As far as the constitution is concerned, it also does not provide provision for the protection of the rights of a corpse.
Article 37 of the Constitution deals with the “promotion of social justice and eradication of social evils” ambiguously covered the act of necrophilia because it is a social evil not just towards the deceased but also to their families.
Article 9 of the Constitution guarantees the security of a person and Article 14 safeguards the inviolability of dignity of citizens, but whether they cover the dignity and security of a corpse?
To conclude, under these ambiguous circumstances, when the law recognizes “the accused as its favourite child”; when the rules of interpretation provide that “in two possible views view favourable to the accused shall prevail”; when more than a century-old golden principle of law is that “benefit of a reasonable shadow of doubt shall be given to the accused”; when the principle applicable in Pakistan provides “penal provisions must be strictly construed”, then mere punishment of a rapist/necrophilia under section 297 of the Pakistan Penal Code, 1860 for a term of one year would also be against Retribution theory, and the doctrine of Lex talionis, means an eye for an eye (Islamic principle of penal laws),Deterrent theory to create deterrence in criminal-mind persons, and Preventive theory to prevent the recurrence of necrophilia.
Therefore, when the writing is on the wall that the evil of necrophilia will surge unless it is dealt with iron hands then it is high time that legislators must legislate specific penal provisions to nip this evil in the bud, and so that no undue benefit of the dearth of legislation could be extended to a necrophiliac.
—The writer holding, an LL.M. degree is advocate of the high court and writers on various topics.
