As of 2001, engaging in sex with an animal was considered a crime in 23 states. The legitimacy of criminalizing such conduct is unclear. It could be argued that bestiality is a victimless crime that is made criminal solely because a majority of the population believes that such conduct is immoral. If so, the criminalization of bestiality would run afoul of a foundational principle of liberal political theory – John Stuart Mill’s harm principle. According to the harm principle, the state may only criminalize conduct in order to prevent harm to others.
Are there additional reasons justifying the criminalization of bestiality?
Some animal advocates have suggested that having sex with animals should be prohibited for the same reasons that justify making it a crime to engage in sexual intercourse with a child. Thus, Gary Francione has stated that:
“Even if animals can desire to have sexual contact with humans, that does not mean that they are “consenting” to that contact any more than does a child who can have sexual desires (or who even initiates sexual contact) can be said to consent to sex.”
This argument can be restated as follows:
(1) It is wrong for a person to engage in sexual intercourse with a living being that is incable of consent,
(2) Animals, like children, are incapable of consenting to sexual intercourse,
(3) Therefore, it is wrong to engage in sexual intercourse with an animal.
The problem with this argument is that it’s unclear whether the analogy between animals and children holds in this context. While (some) animals and children are similar in many ways (chimps perform as well as 2 ½ year old toddlers on some learning tests), I’m not sure that their capacity for consenting to sexual intercourse is one of them.
One of the reasons why we criminalize having sex with a minor is because we know that children are frequently traumatized as a result of sexual encounters. We also know that human beings are often unable to understand the physical, emotional and economic consequences of having sex before they reach a certain age. These concerns seem inapplicable in the context of sexually mature animals. If an animal routinely engages in sexual intercourse with members of its same species, why is it necessarily wrong for a human animal to engage in (non-forcible) intercourse with a sexually mature animal of a different species? It would seem odd to claim in such cases that the sexual act may traumatize the nonhuman animal. It would also seem strange to suggest that it’s wrong to have sex with the nonhuman animal because he is unable to appreciate the physical, emotional and economic consequences of engaging in sexual intercourse. There is no reason to believe that having sex with a human causes more physical and/or emotional pain to an animal than engaging in sexual intercourse with a nonhuman animal.
Francione has also suggested that it’s wrong to engage in sexual intercourse with an animal because “bestiality is a phenomenon that occurs largely within the unnatural relationship of domestication; a domestic animal can no more consent to sex than could a human slave.” I’m not sure that Francione’s analogy between slavery and domestication holds. Many animal advocates believe that having pets is morally acceptable. In any case, Francione’s argument cannot explain why it is a crime to have sex with a non-domesticated animal.
Let me be clear. I’m not advocating for the decriminalization of bestiality. Rather, I wish to spark a debate about the reasons that justify sending a person to jail for more than ten years for having non-forcible sex with an animal. If we are going to lock someone up for a decade, we ought to at least be able to coherently and persuasively explain why it is legitimate to do so.
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