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Forensic academic calls for specific legal recognition of necrophilia

a year ago

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Practical mechanism needed to safeguard rights of deceased and next of kin BY Ruwan Laknath Jayakody  A practical mechanism to safeguard the rights of deceased persons and their next of kin including through the specific legal recognition of necrophilia by way of an amendment to the Sri Lankan law has been advised by a forensic academic. This was suggested in a concept paper on “Medico legal issues in necrophilia and other related matters” authored by a Senior Lecturer at the Sri Jayewardenepura University’s Medical Sciences Faculty’s Forensic Medicine Department, H.T.D.W. Ariyarathna and published in the Medico-Legal Journal of Sri Lanka’s Third Volume’s Second Issue in September 2016. Necrophilia involves engaging in sexual acts with dead persons. Ariyarathna pointed out that instances of the public entertaining suspicions about necrophilic acts or sexual intercourse with the dead after relatives have handed over bodies to funeral directors in certain areas, has arisen in the past. Firstly, Ariyarathna noted that since the said act would be procured secretly and from a victim that is unable to complain, it is difficult to diagnose, unless an additional suspicion is raised. A.J. Aggrawal categorises necrophilia as a paraphilia. The essential features of paraphilias such as in this case, per M.P. Kafka’s “The Diagnostic and Statistical Manual of Mental Disorders (DSM) diagnostic criteria for paraphilia not otherwise specified”, the DSM Fourth Edition [IV], the DSM-IV Text Revision [TR], the DSM-V, Criterion A and the American Psychiatric Association’s “Other specified paraphilic disorder” are the presence of recurrent, intense, sexually arousing, fantasies, sexual urges or behaviours, which generally involve non-human objects, the suffering or humiliation of oneself or one’s partner, or children or other non-consenting persons [in this cases, corpses], that occur over a period of at least six months, and which may be acted upon or have been markedly distressing. According to a Consulting Forensic Psychiatrist attached to the Toronto University, Prof. S. Hucker, necrophilia is the sexual arousal, stimulated by a dead body, with the stimulation being in the form of fantasies or actual physical sexual contact with a corpse. In connection with necrophilia, a broad spectrum of behaviours has been identified, ranging from mere fantasies to the most severe being the killing of people for the sake of procuring a dead body. In this regard, Aggrawal has in “Necrophilia: Forensic and medico-legal aspects” presented a 10-tier sub type categorisation classification (Class I to X). Class I necrophiliacs are role players who while getting aroused during sexual activity by pretending that their live partner is dead, never however actually have sex with a corpse. Class II necrophiliacs are romantic necrophiliacs who are bereaved persons who remain attached to their dead lover’s body and do not wish to accept the truth that the loved person is already dead; they have only very mild necrophiliac tendencies. Class III necrophiliacs are necrophilic fantasisers who simply fantasise about having sexual contact with dead people; but even though they never actually engage in the activity for real, they may become sexually aroused when seeing dead people and may engage in activities that increase their likelihood of seeing the dead. Class IV necrophiliacs are tactile necrophiles who touch dead bodies erotically in order to achieve orgasm and as such may seek out jobs in which they come into regular contact with the dead such as mortuary assistants (J.P. Rosman and P.J. Resnick‘s “Sexual attraction to corpses: A psychiatric review of necrophilia” noted that people with such necrophilic personalities, are more in favour of choosing their occupation so as to have access to dead bodies) as they enjoy touching, stroking parts of the dead body like the genitalia or breasts, and perhaps licking them. Class V necrophiliacs are fetishistic necrophiliacs who while not having sexual intercourse with the dead, will, if any opportunity presents itself, cut up a certain portion of the body, perhaps a breast, for later fetishistic activities or may keep some portion of the dead body – pubic hair or a finger – in the pocket for continuous erotic stimulation, or sometimes may wear such as an amulet for similar pleasure. Class VI necrophiliacs are necro-mutilo-maniacs who while not engaging in sexual intercourse with the dead, however gain sexual pleasure from masturbation while simultaneously mutilating dead bodies and may engage in practices of necrophagy (getting sexual pleasure from eating part of the corpse). Class VII necrophiliacs are opportunistic necrophiliacs who while typically engaging in what is considered normal sexual behaviour, would, if an opportunity presents itself, have sexual intercourse with a dead person. Class VIII necrophiliacs are regular necrophiliacs who do not enjoy having sexual intercourse with people who are alive and instead have a distinct preference for sexual activity with the dead, and may go to extreme lengths to engage in their sexual preference including stealing dead bodies from graveyards or mortuaries. Class IX necrophiliacs are homicidal necrophiliacs (also referred to as homicidophilia or lust murder) who are the most dangerous type of necrophile (also referred to as necrosadists) as they will go to the extent of killing people just so that they can have sex with the dead, typically immediately after the killing when the bodies are still warm. Class X necrophiliacs are exclusive necrophiliacs who are individuals that are psychologically and physiologically incapable of having sex with the living and are only capable of having sex with the dead, and since it is a prerequisite for them that there be a dead body to engage in sexual activity with, they will go to any lengths to acquire a dead body. On aspects pertaining to the medico-legal investigation of such, Ariyarathna explained that while suspecting acts of necrophilia could be fairly easy in Class VIII and above, when it comes to the lesser Degrees than that (Class I to Class VII), it may not be easy to diagnose and prove with a routine medico-legal investigation. In this regard, the major concern of the pathologist is to confirm or refute the suspicion of whether the corpse was sexually abused or not, a matter which is basically resolved as explained by Ariyarathna, through the mandatory determination of whether the injuries including the timing of the sexual acts were ante-mortem or peri-mortem (at or near the time of death) or post-mortem or undetermined. “Multiple bite marks and mutilation of the body are also possible at times. The histopathological (the diagnosis and study of diseases of the tissues) examination would differentiate the nature of the injuries while the histochemical studies would date the injuries. If the body is anally penetrated, anal dilatation (opening) is a possibility, though it must be noted that this is also a common post-mortem phenomenon. However, per Aggrawal, the presence of anal dilatation together with rigor mortis in other parts of the body is assumed as suggestive evidence of necrophilic action. Deoxyribonucleic acid (DNA) profiling including touch DNA (skin cells left on an object after it has been touched or casually handled, per Edmond Locard’s exchange principle and J. Lepchitz’s “Your DNA could be where you weren’t”) and investigations with finger prints bear a significant place in the exclusion or inclusion of suspects. Also, any evidence of missing clothes, such as the bra, panties, and clipped pubic hair, has to be inspected as those may be removed for fetishistic activities,” Ariyarathna elaborated. Whenever necrophiliacs are suspected, the examination of the suspect, if available, is an essential requirement, and in this regard, the evaluation of their psychological assessment is a prerequisite and the examination of their belongings for clues contained in computers they possess through computer forensics is warranted. Furthermore, S.B. Math’s  “Supreme Court judgement on polygraph, narco-analysis and brain mapping: A boon or a bane”, noted that it may be worth the while in such cases to perform, if available, deception detection tests such as the polygraph, narco-analysis and brain mapping. On the other hand, there are also legal issues that need to be considered in court cases of necrophilia, Ariyarathna added. One issue, Ariyarathna observed, is that having intercourse or other sexual activities with the dead is not rape or grave sexual abuse as these acts had not been inflicted on live persons. However, the prosecution will present evidence to the effect that the sexual intercourse or sexual acts were performed during life and that it was only after that that the male/female was killed, thus raising the issue of rape and murder while the defense would attempt to prove that the defendant only had sex with the dead body which carries a far less severe sentence. Hence, the pathologist should have sound and firm findings to either refute or accept the arguments raised during court hearings when questioned. Moreover, there can be numerous acts coming within the scope and ambit of Class I to Class VII of the necrophilia subtypes such as touching or kissing a dead body which are unable to be proven medically speaking. Therefore, Ariyarathna emphasised that it is essential to conduct medical investigations at the time of performing the autopsy, regarding whether an act of necrophilia is a possibility, as the pathologist has to, upon request for an opinion, provide their expert evidence. Additionally, Ariyarathna added, the grievances or suspicions of the public about funeral directors such as an embalmer of the dead bodies, will be concerns that should be addressed in a prudent fashion. With regard to legislations, specific laws with explicit recognition of and against sexual activities with corpses have not been directly identified in most nations including Sri Lanka; but that said, it has been criminalised under offences such misconduct with regard to human remains. However, per Aggrawal, Canada, France, South Africa and the United Kingdom are a few countries in which necrophilia is considered a crime.  In Sri Lanka, under the Penal Code (Amendment) Act, No. 22 of 1995, the concept of the dignity of a dead body is recognized in several places such as in the interpretation of the term “person” to include an unincorporated body of persons, and Section 365A on acts of gross indecency between persons which could criminalise necrophilic actions. The Cemeteries and Burial Grounds Ordinance, No. 09 of 1899 deals with trespassing on a burial place, thereby causing indignity to any human corpse, while Section 14 of the same holds that a corpse cannot be removed without authority, and Section 28 of the same carries a penalty for damaging a cemetery. Further, there are, Ariyarathna argued, ethical issues to be considered. As Aggrawal explained, there are those who think that necrophilia is ethically correct (from a hedonistic standpoint of being based in pleasure) and those who do not. Regardless, no ethical dilemma affects the case of the two subgroups of Class IX and Class X where the offenders tend to kill a person in order to procure sex with dead bodies which clearly involves murder. There is, according to Ariyarathna, another question: how ethical is it to suspect indulged necrophilic acts on certain dead bodies in order to examine the anogenital regions (relating to the anus and genitals) in detail. “The defense is able to put forward any opinion in order to create a reasonable suspicion about the opinions provided by the pathologist, highlighting the inadequacy of his/her investigative procedures. The credibility of the investigative procedure would be challenged if a pathologist is unable to evidentially support his/her opinion either to include or exclude necrophilic act/s. The suspicion about the public regarding the possibility of necrophilic acts at the hands of funeral directors also should be addressed as the mere fact of keeping the dead bodies for longer than expected at the florists would not attribute solely to this possibility,” he explained. In conclusion, Ariyarathna emphasised that since it is only the suspicion of necrophilic acts (including the public’s  suspicion with regard to the possibility of necrophilic acts after the dead bodies are handed over to the funeral directors) that would persuade a pathologist to conduct further forensic medico-legal investigation including examination towards this direction, the pathologists should be mindful of the possibility of such acts and present the medical opinion on necrophilic actions when such is questioned in court hearings, comprehensively and within the limits of the examination. On the other hand, awareness among the public of such acts is also important in the context of both prevention and in directing the alleged assailants for treatment. For Ariyarathna, the law too has to be amended so as to cover specific offences related to necrophilia.  
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