Cracking Open a Cold One. An Exploration into the Cold, Dead Recesses of Necrophilia

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This is a paper written for law school on the topic of Necrophilia. Reader discretion is advised.

Submitted: March 03, 2014

A A A | A A A

Submitted: March 03, 2014



Cracking Open a Cold One – An Exploration into the Cold, Dead Recesses of Necrophilia


  1. Introduction: Necrophilia – Other than Gross, What is it?


Present day Western society receives the idea of necrophilia with abject horror, disgust, and shock. Likely, this can stem from three particular notions that society presently struggles with – death, sex, and mental health. Firstly, one can deduce from the mirror of television that society seems to have a fascination with death, though this fascination is understood to be depraved and is covered under the cloak of fear which is clearly evident from television shows such as Dexter and The Walking Dead. It is not uncommon to hear people verbalize their fears of hospitals, funerals, or graveyards – all of which pertain to the death that is rampant in each of those locales.

Secondly, society is still wrapping itself around the taboo of sex generally – despite its incessant objectification of women existing solely for sexual purposes, the idea of women’s sexuality and sexual adventurousness generally are but two topics that mainstream society is not yet comfortable with and prefers to keep locked in the recesses of one’s darkened bedroom. Sex as a general image of standard missionary position love-making is widely accepted in in modern Western society, yet anything beyond this image is taboo and reserved for arenas such as The Sunday Night Sex Show.

Finally, the issue of mental health is extremely stigmatized despite recent attempts to create a greater social awareness about the prevalence of and truth behind mental illness. Despite these attempts, society’s greatest achievement as of yet to this author’s knowledge is the willingness of law students to openly admit during exam period that they are outright “cray cray”[1].

Putting these three societal shortcomings together, it should come as no surprise that the idea of necrophilia is shunned and considered depraved. However, one must recall that in the not-so-distant past, homosexuality was received with similar shock and horror. As such, this author endeavours to explore the issue of necrophilia in the legal context and illustrate that though the practice of necrophilia will likely never become as socially accepted as homosexuality, it should not be criminalized.


  1. Definitions and Classification


Due to the confusion that many people experience when confronted with the term necrophilia (for example, a grandmother mistakenly telling people she believes she suffers from necrophilia because she seems to unceremoniously fall asleep in odd places), it is best to begin with a definition.  The Oxford dictionary defines necrophilia as follows:

“Fascination with death and dead bodies; esp. sexual attraction to, or intercourse with, dead bodies.” [2]


Meanwhile, Anil Aggrawal, an expert in the field of forensic medicine, defines necrophilia as “sexual gratification by having sex with the dead” and further describes it as “one of the weirdest, most bizarre and revolting practices of abnormal and perverse sensuality”[3] and explains that the Diagnostic and Statistical Manual of Mental Disorders, the “DSM-IV-TR”, “does not assign any specific or unique code to necrophilia”[4], but rather classifies it is a paraphilia not otherwise specified.[5] Other academic definitions of necrophilia include that it is “a form of paraphilia which is prosecuted under criminal law”[6], and that it is “a sick fascination with death and the dead…and is categorized with the group of disorders which comprise the paraphilias, a subtype of psychosexual disorder involving unusual or bizarre fantasies or acts that are necessary for full sexual excitement”[7].

Different experts have proposed different ways of classifying necrophiliacs, however due to the rarity of necrophilia and by proxy, how few experts there are in the field, the subject of classification is not overly contentious. As such, this paper shall use the method of classification proposed by Dr. Aggrawal which is best summarized in S.S.T. Boureghda’s case report, “A Case Report of Necrophilia – A Psychopathological View”[8]. That classification is as follows:

  • Class I necrophiliacs: The Role Players. These persons get sexually aroused by sexual contact with a living person pretending to be dead.[9]


  • Class II necrophiliacs: The Romantic Necrophiles. These persons are described as those who are normal bereaved people who cannot bear separation from their loved ones. After the death of their loved one they continue to relate to the body sexually as they did before the passing. It is suggested that they recover as time passes.[10]


  • Class III necrophiliacs: Necrophilic Fantasizers. This class fits those who only fantasize about having sex with a corpse, but do not have any physical contact with one. Those who masturbate in cemeteries or would enjoy sexual actions close to a coffin are included in this class.[11]


  • Class IV nerophiliacs: Tactile Necrophiles. These type of necrophiles need to touch a corpse in an erotic way to obtain an orgasm.[12]


  • Class V necrophiliacs: Fetishistic Necrophiles. Feteshistic necrophiles are described as those who will not engage in any sexual intercourse with dead bodies but cut up or cut off some portion of the body for fetishistic activities. They may also keep a part of the dead body close to them.[13]


  • Class VI necrophiliacs: Necromutilomaniacs. These persons are described as those who do not engage in any sexual intercourse with a corpse. However, they experience sexual pleasure from mutilating corpses in combination with simultaneous masturbation. It may occur that part of the dead body is eaten (necrophagia).[14]


  • Class VII necrophiliacs: Opportunistic Necrophiles. They are described as persons who normally enjoy sexual relations with the living. If however an opportunity would arise, they would have sex with a dead body. [15]


  • Class VIII necrophiliacs: Regular Necrophiles. Persons categorized in this typology are described as ‘classical necrophiles’. Regular necrophiles would not enjoy sexual intercourse with the living. They would seek out, or even steal a dead body to have sexual intercourse with. However, regular necrophiles would however also have sexual contact with the living, but it is not preferred.[16]


  • Class IX necrophiliacs: Homicidal Necrophiles. They are classified as the most dangerous category of necrophiliacs. Homicidal necrophiles are described as persons who resort to killing to obtain a dead body to have sex with.[17]


  • Class X necrophiliacs: Exclusive Necrophiles. These are persons who are unable to have sexual intercourse with the living. They will only have sex with dead bodies.[18]


For the purposes of this paper, classes VII and IX will be expressly considered as these are the two classes which are represented in the Canadian case law which follows. Though it is unfortunate for academic purposes that there is such minimal case law on the subject to delve further into the other classes of necrophilia, it is likely categorically favourable that Canadians have such few experiences with such a disturbing paraphilia.

  1. The Legal Sphere: Necrophilia Sounds like Quite the Nuisance


As one might have assumed, the word “necrophilia” or any form thereof, cannot be located in Canada’s Criminal Code[19], similar to the fact that the word “rape” can no longer be found either. However, one may be surprised to learn that the crime of necrophilia, regardless of its phrasing, does not fall under the category of Sexual Offences, but rather under the category of Nuisance. Section 182 of the Criminal Code encompasses the issue of necrophilia and states:

182. Every one who

  1. neglects, without lawful excuse, to perform any duty that is imposed on him by law or that he undertakes with reference to the burial of a dead human body or human remains, or
  2. improperly or indecently interferes with or offers any indignity to a dead human body or human remains, whether buried or not,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.[20]


This section is used for a variety of indecent behaviours, including by not limited to disposing of a body in an inappropriate manner[21], mothers concealing their dead children[22], destroying coffins with a forceful backhoe[23] and engaging in Nazi-like indignities in a Jewish cemetery[24]. By contrast, in the United Kingdom, a law specifically exists for the purpose of making necrophilia an offence under section 70 of the Sexual Offences Act 2003 of the United Kingdom which states:

Sexual penetration of a corpse

  1. A person commits an offence if-
    1. he intentionally performs an act of penetration with a part of his body or anything else,
    2. what is penetrated is a part of the body of a dead person,
    3. he knows that, or is reckless as to whether, that is what is penetrated, and
    4. the penetration is sexual.
  2. A person guilty of an offence under this section is liable-
    1. on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;
    2. on conviction on indictment, to imprisonment for a term not exceeding 2 years.[25]


Other jurisdictions that have similarly worded legislation to cover the act of necrophilia include Victoria[26] and South Africa[27], while legislation similar to the aforementioned section 182 of the Canadian Criminal Code exists in New South Wales[28], Northern Territory[29], Tasmania[30], and France[31]. Perhaps the country with the most intriguing provisions regarding necrophilia is Germany whose Criminal Code not only covers class VII necrophiliacs, but also contains a separate provision for class IX necrophiliacs. Specifically, the English translation of section 168 states:

Disturbing the Peace of the Dead

  1. Whoever, without authorization, takes away the body or parts of the body of a deceased person, a dead fetus or parts thereof or the ashes of a deceased person from the custody of the person entitled thereto, or whoever commits insulting mischief thereon, shall be punished with imprisonment for not more than three years or a fine.
  2. Whoever destroys or damages a place for laying-in-state, burial site or public place for remembering the dead, or whoever commits insulting mischief there, shall be similarly punished.
  3. An attempt shall be punishable. [32]



The English translation of section 211 regarding murder further states:


  1. The murderer shall be punished with imprisonment for life.
  2. A murderer is, whoever kills a human being out of murderous lust, to satisfy his sexual desires, from greed or otherwise base motives, treacherously or cruelly or with means dangerous to the public or in order to make another crime possible or cover it up.


Though this translation is not idyllic, one can grasp that the Code is specifically providing that a murderer may be defined by the purposes for which s/he killed. As will be discussed in further detail later, this author proposes that Canadian laws be reformed to reflect something more along the lines of the German approach found in section 211 – specifically, that the issue of class IX necrophiliacs be specifically dealt with not as its own separate crime, but rather in conjunction with the homicide that was committed prior to the sexual act. One may argue that someone’s purpose behind committing murder ought not matter when it comes to determining guilt or innocence of a crime, so long as the person committed the act s/he should be held accountable for the actions. However, this follows the crime control theory behind criminal law and seeks out sanctions for factual guilt, as opposed to the due process system that Canada upholds whereby it is legal guilt that the system must find in order to convict an individual of a crime. As such, though motive is not necessarily a key element in determining the appropriate mens rea, it is indicative of the state of mind the individual may have been in during the commission on the crime. This motive can be used not only to establish the necessary mens rea to convict the individual of homicide, but should again be used when determining sentencing. This issue will be discussed in further detail in section IV.




  1. Real Life Canadian Case Studies


The case law to be found on the topic of necrophilia is extremely limited. One can speculate at the reasons why this might be and three hypotheses come specifically to mind. First of all, as suggested by Justice Cooper in R v Suwarak it could be that society so values the premise that human remains be treated in a dignified manner that even the most heinous of criminals are hesitant to indecently interfere with a human corpse. Such a hypothesis is laughable considering the many different ways that murderers dispose of bodies. Furthermore, the idea that the societal taboo of mistreating human remains is a more influential societal norm than the social declaration that there is sanctity in human life is absolutely implausible. One cannot make such a wildly overzealous and inaccurate claim that a lack of case law on necrophilia is due to people not committing necrophilia in the first place because it’s too horrible of an act.

This leads us to the second hypothesis, which is that necrophilia is not being committed, however the reason it isn’t being committed is because such a paraphilia is extremely rare in the psychological sense and afflicts an extremely small, almost negligible portion of the population. After reviewing Dr. Aggrawal’s discussion on the history of necrophilia which begins with examining necrophilia in Greek mythology then proceeds to examine necrophilia in the Greco-Roman Period, the Middle Ages, and the Modern Era before ending with a review of necrophilia in animals[33], one simply cannot logically come to the conclusion that necrophilia is such a rare occurrence that only two men have ever committed class VII necrophilia throughout the history of Canada. Though the paraphilia is rare and not nearly as common as other sexual fetishes such as the immensely common foot fetish, logic defies such a conclusion that only two men in Canada have ever engaged in class VII necrophilia.

Finally, the third and most convincing hypothesis as to the lack of case law on the subject is that necrophilia is actively being committed, however due to the simple fact that there are no living victims to the crime, there is no one to report the necrophiliac’s actions, and therefore charges are not laid and prosecutions are not sought. Dr. Aggrawal makes the following statement with regards to necrophiliacs:


“Gravediggers and mortuary attendants, who are the people most often found practicing necrophilia, engage in this activity perhaps because of their loneliness, coupled with easy access to corpses. It is also possible that they chose this profession in the first place because they were necrophiles. It is known that necrophiles often choose a profession that allows them free and unhindered access with dead bodies.”[34]


If the above statement is true, then necrophilia is likely occurring far more often than anyone might typically imagine, however the occasions upon which it is found out and reported are few and far between. Now, with that disturbing concept to ponder, we shall move on to discussing three particular Canadian cases of necrophilia.


  1. R v Suwarak


The case of R v Suwarak[35] is an example of exactly the type of crime that this paper endeavours to argue that should not be found to be a crime. Specifically, the facts of this case are that Mr. Suwarak pled guilty to having indecently interfered with the dead body of a 96 year old woman and community elder in Iqaluit the day of her burial. Mr. Suwarak was not involved in the death of the woman, nor did he abuse a duty to perform a specific task, for example burial or cremation. Simply put, there were no other crimes associated with this situation – it was an unadulterated case of amorous copulation with a “stiff”. Despite the fact that no one was injured as a result of Mr. Suwarak’s actions, the trial judge described Mr. Suwarak as “someone capable of great depravity”[36], stated that the case was “both shocking and tragic”[37] and stated that “Mr. Suwarak’s conduct violated social norms and taboos in the most outrageous manner”[38].  These extremely strong words are indicative of perhaps the trial judge’s own bias towards something so taboo as sexual indiscretion with a corpse, but are also indicative of the reaction society in general has to the concept of necrophilia.

As will be discussed in further detail later on in this paper with regards to sentencing, Mr. Suwarak pled guilty to violating section 182 of the Criminal Code. Though Mr. Suwarak did have a criminal record before this instance, nine and a half years had passed between this case and his previous conviction, which had been for sexual assault. Arguably the most intriguing element of this crime is Mr. Suwarak’s own personal circumstances. At the age of seven he had surgery which resulted in complete hearing loss. After his surgery, he returned to school and continued to obtain up to a grade nine education. The trail judge however determined that Mr. Suwarak was clearly functioning at a much lower level of education and was essentially illiterate and could only write his name, the name of his home community, and the words “I”, “you”, and “hi”. Furthermore, up until his initial conviction for sexual assault in 1999, he was nearly entirely unable to communicate with others after his family’s death, and it was only by virtue of the “criminal justice system that he was able to learn a rudimentary form of sign language, as the Court needed to be able to communicate with him”[39]. Finally, an assessment of Mr. Suwarak was performed that revealed that his intellect was well below average, he has cognitive impairment that affects his ability to connect actions and consequences, he struggles with the ability to suppress unacceptable social behaviour, and he will likely have ongoing problematic behaviour. However, despite these mammoth hurdles that Mr. Suwarak has had to overcome throughout his life, he managed to go nine and a half years without any criminal convictions, and furthermore, the criminal act in this particular case was a victimless crime. His previous two convictions had been for sexual assault. Being that Mr. Suwarak is virtually incapable of communicating with anyone whatsoever, it astounds this author that a man reduced to the most basic experiences of life was able to go nine and a half years without engaging in sexual assault, and furthermore was able to make the cognitive connection that to sexually assault a corpse as opposed to a living being would prevent unnecessary harm to others while still providing him with necessary relief.


  1. R v Ladue


The case of R v Ladue[40] was heard on appeal in the Yukon Territory Court of Appeal. Unfortunately, the facts of this case were not detailed in the appeal judgment, though one can deduce that Mr. Ladue was convicted of copulating with the body of a deceased woman while he was drunk on the ever-popular drink of the North, “home brew”, and unaware that the victim was deceased. On appeal was the issue of whether or not the trial judge had erred in not allowing the accused to argue his innocence due to the fact that he did not believe the woman to be dead. The appeal court held that “it is impossible for him to argue that, not knowing her to be dead, he was acting innocently. An intention to commit a crime, although not the precise crime charged, will provide the necessary mens rea under a statute in the form of sec 167 (b)”[41]. (At the time R v Ladue was heard in 1965, section 167(b) existed as what is presently section 182(b) of the Criminal Code.) This paper will not bother speaking to Mr. Ladue’s creatively moronic strategy of arguing innocence due to the fact that he actually intended to commit sexual assault as opposed to necrophilia, but will simply state that based on such an argument, one may ponder whether Mr. Ladue was a true class VII opportunistic necrophiliac or if the situation was purely accidental and he was too consumed with obtaining his own sexual gratification that rigor mortis didn’t slow him down. One can safely assume that Mr. Ladue is likely a selfish lover, in which case it may be best if he copulates with those not concerned with obtaining climax.


  1. R v Ulayuk


The case of R v Ulayuk[42] is far more gruesome than the two aforementioned cases. In this case, Mr. Ulayuk was a convicted murderer living in Yellowknife who was out on parole. His previous conviction was a result of his guilty plea to manslaughter where Mr. Ulayuk was given a sentence of life imprisonment for a murder he committed when he was twenty years old.  That murder of the young woman occurred in Igloolik and was a result of Mr. Ulayuk’s alcohol consumption and his fantasy of engaging in sexual intercourse with a dead woman. Evidently, after killing the victim, Mr. Ulayuk changed his mind about having sex with her and did not carry out his fantasy.

After Mr. Ulayuk was released on full parole in 2004 (12 years after his first conviction) he decided to make good on his abandoned fantasy. When his female parole officer attended Mr. Ulayuk’s home, Mr. Ulayuk took a hammer to the victim’s head, wrapped twine around her neck and strangled her prior to engaging in intercourse with her body.[43] This situation is clearly indicative of class IX homicidal necrophilia and is an example of “the most dangerous category of necrophiles” where the individual needs “to have sex with a dead body to the extent that they resort to killing”[44]. It is situations such as these where the German approach to necrophilia, specifically section 211 of the Criminal Code that considers the sexual motive behind a murder would be particularly advantageous for securing convictions that accurately reflect the accused’s actions.


  1. No Autonomy in Death – The Victimless Crime


John Harris argued in his article that, simply put, there can be no autonomy in death. In his article “Law and regulation of retained organs: the ethical issues” he made the following statement:

“Autonomy involves the capacity to make choices, it involves acts of the will, and the dead have no capacities - they have no will, no preferences, wants nor desires, the dead cannot be autonomous and so cannot have their autonomy violated. Equally, the dead cannot have their bodily integrity violated, for violation consists not simply in a breach of bodily integrity, but in a breach of bodily integrity that is not consented to. Necrophilia may be unethical; it may even be a crime, although it is not altogether straightforward to identify what crime it might be.”[45]


This argument is controversial; however for the purposes of this paper, it will be assumed that Harris’ above statement is correct. Assuming such, one can now understand why the offence of necrophilia falls under such a broad section of the Criminal Code specifically pertaining to the integrity of human bodies, as opposed to the sexual nature of the offence. Without any autonomy, no offence can be committed against someone in particular (ie, the deceased), nor can the offence be committed against the deceased’s family as family members do not carry autonomy in one another’s bodies.


  1. So Then, What’s the Harm in “Cracking Open a Cold One”?


After having established that there is no autonomy is one’s body after death, nor does autonomy in a body transfer to relatives after death, the question then becomes, why is necrophilia a crime? This author suggests that it shouldn’t be a crime. Section 182 of the Criminal Code ought to be repealed.

“…The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” – John Stuart Mill, On Liberty


The above quote is famously and fabulously appropriate when it comes to questioning why certain things are criminal. It is important to note that while this paper has looked at the issue of criminal law, it has in no way touched on the issues or tort or property law which could be used as an alternative method of ensuring that something so depraved as necrophilia does not become common place and acceptable. It is proposed however, that the realm of criminal law ought to be reserved for only the worst possible conduct which victimizes either individuals or society as a whole.

Two competing theories exist regarding the role of criminal law – this debate is known as the Hart-Devlin Debate. The Devlin approach is that the criminal law should be concerned with public and private morality and should be used to enforce certain standards of behaviour regardless of harm. The competing argument by Hart is that feelings of disgust, indignation, and intolerance ought not be sufficient to enact criminal laws without subjecting those feelings to rational, critical scrutiny. Further, Hart suggests that two questions be asked even after such scrutiny has occurred. Firstly, is the impugned conduct harmful apart from its deviation from moral code, and secondly is it really true that failure to criminalize this item of general morality will jeopardize the whole fabric of morality and existence of society? Applying these two questions to the criminalization of necrophilia, it appears that necrophilia does not meet the Hart threshold for criminalizing conduct. Firstly, as we have already established, necrophilia causes no harm in society as there are no victims due to the lack of autonomy in death.  Secondly, on the issue of jeopardizing the entire fabric of morality by decriminalizing necrophilia, one can hardly imagine that repealing such a law would result in a flood of individuals racing to their local cemeteries and mortuaries to get their hands, or rather, genitalia, on the decaying former members of society.

Beyond the theoretical debate of the harm principle however, it was held in R v Malmo-Levine[46] that “[w]hile a reasonable apprehension of a ‘not insignificant’ or ‘not trivial’ harm may suffice to justify a regulatory prohibition on the personal and private consumption of a substance, it is not constitutionally adequate for justifying the use of incarceration and the imposition of a criminal record to deter such consumption”.[47] This means, that the common law has established that harm is a requirement when prohibiting conduct when such prohibitions are met with sanctions of incarceration. Section 182 of the Criminal Code specifically states that someone guilty of violating that section is liable to a term of imprisonment not exceeding five years. Such a law cannot be justified and ought to be struck down as unconstitutional for imposing criminal sanctions including imprisonment for non-harmful actions. 


  1. Sentencing


The final issue of this paper to discuss is sentencing. The argument has been made that necrophilia on its own ought not to be a crime. This claim is made for cases such as the aforementioned R v Suwarak and R v Ladue where the individuals were most likely class VII necrophiliacs. However, when it comes to class IX homicidal necrophiliacs such as was the situation in R v Ulayak, the criminal law must respond strongly to such indecency as the harm that arises due to such necrophiliacs is catastrophic. Therefore, it is argued that such force be found in the already existing sentencing principles which can be found in sections 718, 718.1, and 718.2 of the Criminal Code. To begin with, section 718 sets the groundwork for sentencing and states the following:


718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

  1. to denounce unlawful conduct;
  2. to deter the offender and other persons from committing offences;
  3. to separate offenders from society, where necessary;
  4. to assist in rehabilitating offenders;
  5. to provide reparations for harm done to victims or to the community; and
  6. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.[48]


Next, section 718.1 provides the fundamental principle of sentencing which is:

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.[49]


Finally, the most important element of the sentencing principles for the purposes of this paper can be found in section 718.2, specifically concerning “aggravating factors”:

Other sentencing principles

718.2 A court that imposes a sentence shall also take into consideration the following principles:

  1. a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
    1. \"*\"evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor,
    2. \"*\"evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,
    3. \"*\"evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
    4. \"*\"evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
    5. \"*\"evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
    6. \"*\"evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
    7. \"*\"evidence that the offence was a terrorism offence

shall be deemed to be aggravating circumstances;

  1. a sentence should be similar to sentences imposed on similar offenders for similar offences
  2. where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
  3. an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
  4. all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.[50]


This section is a brilliant addition to the Criminal Code as it allows judges discretion with sentencing, though it still provides guidance and ensures that sentences are equitable and appropriate for the circumstances. Because of the open-wording of 718.2(a), the concept of aggravating factors is not limited to a list of behaviours, but rather provides specific factors which ought to always be considered regardless of the circumstances, then move on to consider further circumstances specific to the case that the statute has not covered. This is where the motive of homicidal necrophiliacs would come into play. Specifically, in the case of R v Ulayak, it ought to have been considered in the sentencing for his first conviction that his motive was sexual in nature and was only harnessed by the sheer reality of the situation and likely coming to grips with the fact that he had a dead body on his hands. Had this consideration been made, perhaps Ulayak would not have been permitted full parole a mere twelve years after his first conviction, allowing him to kill again for identical purposes.  

In other cases, it is important that the judge not allow his or her personal bias, disgust, or horror to infiltrate his/her judgment of aggravating factors. For example, the aggravating factors in R v Suwarak as considered by the trial judge were that Mr. Suwarak continued his sexual act with the deceased elder “for approximately 10 minutes, until he had achieved sexual gratification”[51], that he lived in the community for three months after committing the “depraved” act before DNA results confirmed that Mr. Suwarak had interfered with the body, ad that the family of the deceased was unable to grieve properly due to Mr. Suwarak’s interference[52]. The tenor of the judgment provided clear evidence that Justice Cooper found Mr. Suwarak to be indecent and disgusting. The aggravating factors that she found cannot logically be considered “aggravating” as they are logically linked to the indecent act itself, as one must be able to understand that necrophilia is a sexual fetish which therefore ought to lead one to the conclusion that it is performed for the purposes of sexual gratification. It is important that when using the principles set out in 718.2 a judge does not abuse them in order to cloak her disgust and impose her own personal form of justice on the accused rather than adhering to the principles laid out by years of experience and the clawing pursuit of justice upon which the legal system of Canada is based.


  1. Conclusion: Icky Just Doesn’t Cut It

The purpose of this paper has been to shed light on the taboo subject of necrophilia and Canada’s current criminality of the act. This author proposes that the current laws under section 182 of the Criminal Code are unconstitutional as they violate the harm requirement established in R v Malmo-Levine and R v Labaye. Further, this author proposes that the issue of homicidal necrophilia is best dealt with in the realm of sentencing to ensure that dangerous offenders are kept from reoffending and are adequately punished for their crimes. Finally, though the topic of necrophilia is off-putting and slightly disturbing, it has provided interesting insight into one of the few remaining areas in which Canada allows its societal revulsion to overrule the true pursuit of justice.




















Criminal Code, RSC 1985, c C-46

Sexual Offences Act, 2003 (UK), c 42, s 70

Strafgesetzbuch, StGB, 1998 ss 168 and 211




R v B(J), 2001 NFCA 26, 83 CRR (2d) 208

R v Ladue [1965] 4 CCC 264, 51 WWR 175

R v Malmo-Levine; R v Caine, 2003 SCC 74 [2003] 3 SCR 571

R v Mills, [1993] 2 SCR 277, 25 CR (4th) 69

R v Morrow, 2008 NBPC 7, 845 APR 131

R v Moyer, [1994] 2 SCR 899, 73 OAC 243

R v Panghali, 2011 BCSC 421, [2011] BCWLD 6224

R v Suwarak, 2011 NUCJ 18

R v Ulayuk, 2006 NWTSC 10, [2006] AWLD 1506





Anil Aggrawal, Necrophilia: Forensic and Medico-Legal Aspects, (Boca Raton: CRC Press: Taylor & Francis Group, 2011)





S.S.T. Boureghda, “A Case Report of Necrophilia – A Psychopathological View” (2011) 18:6 Journal of Forensic and Legal Medicine 280


Edwin Ehrlich et al, “An Extreme Case of Necrophilia” (2000) 2:4 Legal Medicine 224


John Harris, “Law and Regulation of Retained Organs: The Ethical Issues” (2006) 22:4 Legal Studies 527


David Lester & John White, “Necrophilia in Serial Killers: Is There Evidence for Asperger’s Syndrome?” (2011) 8:6 Clinical Neuropsychiatry 367


Tyler Trent Ochoa & Christine Newman Jones, “Defiling the Dead: Necrophilia and the Law” (1997) 18:3 Whittier Law Review 539


[1] See basically any law student’s Facebook, Twitter, or Tumblr accounts during exam time

[2] The Oxford English Dictionary, 2d ed, sub verbo “necrophilia”

[3] Anil Aggrawal, Necrophilia: Forensic and Medico-Legal Aspects, (Boca Raton: CRC Press: Taylor & Francis Group, 2011) at page 1

[4] Ibid at page 1

[5] S.S.T. Boureghda, “A Case Report of Necrophilia – A Psychopathological View” (2011) 18:6 Journal of Forensic and Legal Medicine 280 at page 280

[6] Edwin Ehrlich et al, “An Extreme Case of Necrophilia” (2000) 2:4 Legal Medicine 224 at page 224

[7] Tyler Trent Ochoa & Christine Newman Jones, “Defiling the Dead: Necrophilia and the Law” (1997) 18:3 Whittier Law Review 539 at page 540

[8] Supra note 5 at page 281

[9] Ibid at page 47

[10] Ibid at page 48

[11] Ibid 3 at page 51

[12] Ibid at page 56

[13] Ibid at page 59

[14] Ibid at page 63

[15] Ibid at page 67

[16] Ibid at page 69

[17] Ibid at page 73

[18] Ibid at page 84

[19] Criminal Code, RSC 1985, c C-46

[20] Ibid at s 182

[21] See R v Panghali, 2011 BCSC 421, [2011] BCWLD 6224 where the accused killed his pregnant wife and set fire to her body.

[22] See R v Morrow, 2008 NBPC 7, 845 APR 131 and R v B(J), 2001 NFCA 26, 83 CRR (2d) 208

[23] R v Mills, [1993] 2 SCR 277, 25 CR (4th) 69

[24] R v Moyer, [1994] 2 SCR 899, 73 OAC 243

[25] Sexual Offences Act, 2003 (UK), c 42, s 70

[26] Crimes Act 1958 (Vic) s 34B

[27] Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007, (S Afr), s 14

[28] Crimes Act 1900 (NSW) s 81C

[29] Crimes Act 1958 (NT) s 140

[30] Criminal Code Act 1924 (Tas) s 139

[31] Code penal art L225-17  C pen

[32] Strafgesetzbuch, StGB, 1998 s 168

[33] Supra note 3 at pages 1-19

[34] Ibid at page 2

[35] R v Suwarak, 2011 NUCJ 18 [Suwarak]

[36] Ibid at para 20

[37] Ibid at para 1

[38] Ibid at para 17

[39] Ibid at para 25

[40] R v Ladue [1965] 4 CCC 264, 51 WWR 175 [Ladue]

[41] Ibid at para 5

[42] R v Ulayuk, 2006 NWTSC 10, [2006] AWLD 1506

[43] Supra note 3 at pages 149-150

[44] Ibid at page 73

[45] John Harris, “Law and Regulation of Retained Organs: The Ethical Issues” (2006) 22:4 Legal Studies 527 at page 531-532

[46] R v Malmo-Levine; R v Caine, 2003 SCC 74 [2003] 3 SCR 571

[47] Ibid at para 150

[48] Criminal Code, RSC 1985, c C-46, s 718

[49] Ibid at s 718.1

[50] Criminal Code, RSC 1985, c C-46, s 718.2

[51] Supra note 35 at  para 19

[52] Ibid at para 21

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