Buggery and Factory Farming

Rodell Green was just sentenced to three years imprisonment for having sex with a horse. Over at the Atlantic Blog, correspondent Wendy Kaminer asks the following “quick question“:

Can someone explain to me why it is a criminal offense to have sex with animals but entirely legal to kill and eat them?  Surely laws against bestiality don’t reflect concern about the rights of animals, (who would probably opt for sex over death.) I don’t mean to denigrate meat eating (I’m a carnivore;) I do mean to point out the absurdities of imprisoning people for “buggery.”

In a sense, Ms. Kaminer is right. It is simply inconsistent for the law to send someone to jail for three years for having sex with a horse while simultaneously allowing billions of animals to unnecessarily suffer as a result of factory farming.

Nevertheless, I believe that there is a way to explain this inconsistency. As I pointed out in a previous post, it’s unclear whether the purpose of bestiality statutes is to protect animals from cruelty. As a matter of fact, I think that bestiality statutes have little to do with preventing animal suffering. Instead, it’s more likely that the purpose of bestiality statutes is to enforce a moral principle, namely: that it’s against natural law and morality for human beings to have sex with an animal.  This reading of bestiality statutes is supported by the history of laws criminalizing such conduct.

The first statute criminalizing bestiality in common law jurisdictions was England’s Buggery Act of 1533. The statute made engaging in anal sexual intercourse or having sex with an animal a crime punishable by hanging. These acts were criminalized because they were unnatural and against God’s will. After all, as Blackstone (in)famously asserted in his famous Commentaries, someone who engaged in these acts committed the “abominable and detestable crime against nature”. As a result, it seems fairly obvious that what inspired bestiality laws was the state’s desire to enforce a particular moral view.

Furthermore, given that statutes protecting animals from cruelty were not enacted in common law jurisdictions until the Nineteenth Century, it would be odd to conclude that the Buggery Act was intended to protect animals from pain. In addition, the fact that bestiality was criminalized in the same statute that prohibited anal sexual intercourse is telling. Why would a law intended to protect animals from suffering always be included alongside a law prohibiting human beings from engaging in anal intercourse with each other? The only way of making sense of this is by asserting that bestiality statutes – like sodomy laws – are intended to enforce morality rather than to protect animals (or humans, for that matter).

Once we construe bestiality statutes as laws that are enacted to enforce a moral principle, it’s easier to understand why the law provides that a man can be imprisoned for three years for having sex with an animal while it simultaneously allows people to treat animals cruelly in factory farms.  Most people believe that having sex with an animal is immoral (against nature, religion, etc), whereas unfortunately most people still believe that producing cheap and tasty meat products justifies inflicting incredible amounts of pain on animals. After all,  God frowns upon having sex with animals (“Neither shalt thou lie with any beast to defile thyself therewith: neither shall any woman stand before a beast to lie down thereto: it is confusion” – Leviticus 18:23)  but doesn’t really object to eating or killing them. (e.g., “Every moving thing that lives shall be food for you” – Genesis 9:3).

Of course, there are many reasons to take issue with this conclusion. For starters, criminalizing conduct merely because it violates a moral principle strikes many – including myself – as illegitimate. If we believe, as John Stuart Mill and H.L.A. Hart did, that the state can legitimately prohibit conduct only to prevent harm to others, it would seem that criminalizing bestiality solely because it violates a moral principle is unwarranted. Furthermore, regardless of the moral beliefs of the majority and of what religion or the Bible has to say about the issue of factory farming, it’s fairly obvious to anyone who gives serious thought to the issue that factory farming practices are immoral for a variety of reasons (animal suffering, CO2 emissions, etc). Therefore, the reasons in favor of prohibiting factory farming are clearly more powerful than the reasons in favor of criminalizing bestiality.

In sum, it’s easy to explain why having sex with an animal may land someone in prison whereas factory farming practices that cause animals to endure unimaginable amounts of pain are authorized. The former practice is viewed by a majority of the population as immoral, while the latter is not. The distinction is grounded in historical practice and in religious considerations that are not easily exorcised.

Ms. Kaminer pointed out that the disparate legal treatment of these two acts reveals the “absurdities of imprisoning people for buggery”. What Ms. Kaminer didn’t mention, however, was that this incongruity reveals something else about our legal system that’s even more disturbing: it unjustifiably lets factory farming go unpunished.

Luis Chiesa