Lust

Seth Victor

In college I learned a song. The lyrics of that song are largely unpublishable, but I will share the refrain, which goes, “Bestiality’s best boys, Bestiality’s best (something unmentionable about a wallaby)!” It was sung in jest, by both guys and gals, and the point was (I hope) to horrify and not to instruct. I admit I laughed and sang along. A sense of humor goes a long way in keeping ones sanity, and I know the song was only part of a long and raunchy college tradition. Now that I recall those days of endless road trips, listening to my colleagues tone deaf voices proclaim what wonderful sexual acts would befall a myriad of animals, I wonder what sketchy part of my university’s tradition required immortalization in such verse.

Sex is still taboo in our society, and more risqué sexual proclivities are still in the closet, so to speak, though they are not as much of a sub-culture as some people think. Animal sex, with other animals, is not taboo. From dogs in the park to the Discovery Channel, you can watch animal porn to your heart’s content. But is it porn? That depends on the viewer. Porn is sexually stimulating, erotic, and is viewed for some sexual goal. If you tune in to the mating habits of the Guianan Cock-of-the-Rock (I couldn’t make that up) to further your understanding of genetic diversity, you’re a scientist. If your heart starts racing, be careful. I’m being a bit ridiculous, but when you consider that U.S. v. Stevens refuses to apply the same exemptions to the First Amendment that were extended to depictions of child pornography in U.S. v. Williams, while in the same stroke giving the go-ahead for crush videos, it isn’t absurd to wonder where we drawn the line when it comes to human with animal sex acts.                 Continue reading

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.

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Oral Sex, Animals, and the Criminal Code

calf_aIs oral sex a crime?  Not necessarily, of course.  But absent consent, it sounds like a crime to me.

Not so if the mouth belongs to an animal, according to a Burlington County, New Jersey judge who dismissed charges against a police officer accused of putting his penis in the mouths of at least 5 calves for the purpose of gaining sexual pleasure.  The judge said it was questionable that the acts constituted animal cruelty.  Why don’t calves deserve protection from sexual predators?  It doesn’t make any sense.

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Bestiality and the Sex Offender Registry

If you were wondering whether judges in Kansas were paid enough, the answer is “NO.”    Judges in Kansas have to sometimes decide whether a person caught en flagrante with his ex-girlfriend’s dog (after sneaking into her garage) should have to register as a sex offender.  (Apparently so.)  That type of work, in my humble opinion, defies a compensatory dollar figure.

For the full, unadulterated skinny on this, read State v. Coman, 2009 WL 2633688 (August 28, 2009).  For a great analysis of the opinion and the legal morass through which the court must wade, visit Leonard Link.

H/t to Bridget Crawford for the heads up.

–David Cassuto

Why is it a Crime to Have Sex with an Animal?

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.  

Luis Chiesa