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

On Blogs, Blogging, and Animals

As a newbie to the blogosphere, I have spent a good deal of time recently, wondering what value this blawg brings to the ether and, more importantly, to the urgent and ongoing struggle to resituate animals within society.  This led me to ruminate on blogs as literary expression and as a forum for information exchange.

I have taught writing for many years, first to undergraduates and more recently to law students.  To all of them I preach that they should never show anything they write to anyone – not even their mothers – until they have rewritten it at least five times.  Then, they should rewrite it another half-dozen times before deciding whether it merits sharing with anyone else.  Good writing, I maintain, requires great care.  One of the best compliments a reader can offer is to say that an author writes like she speaks – that her prose seems conversational, approachable and easy to digest.  However, the key to an easy-flowing style lies in multiple drafts, careful parsing, and unstinting attention to detail.  This methodology bears no resemblance to common discourse and thus the paradox (and concomitant student resentment).

Furthermore, as an academic, my stock and trade involves laboriously composed scholarly treatises.  Some run long and some short, but all are heavily sourced and often refereed.  Because this form of writing consumes so much time and labor and because there is so seldom money involved (and so little money when there is), I must believe that my work in some way adds value to society or my motivation evaporates.  In this sense, I adapt Johnson’s timeless adage that “no man but a blockhead ever wrote, except for money,” to the reality of academia and the marketplace of ideas.

All of this made me resistant to blogging, an endeavor requiring real or near real-time publishing of one’s virtually unedited thoughts (also for no money).  In short, blogging demands jettisoning many of my most cherished ideals about the nature of the written word.  Also, because I care so passionately about animal issues and because I believe them so philosophically and legally complex, I felt and still feel hesitant to throw thoughts out there unsourced and ungrounded.

Then I read this thoughtful piece in the Atlantic on blogging by Andrew Sullivan, a writer I admire very much, even when I don’t agree with him (he blogs here).  Sullivan quotes Matt Drudge (who I admire much less but whose cultural influence both in and out of the blogosphere lies beyond cavil) that a blog is a broadcast not a publication.  Its immediacy propels ideas straight into the discursive realm rather than leaving them to germinate for months or years in obscurity.  This got me to thinking about my unhealthy addiction to footnotes and to revisit the wisdom of Noel Coward, who once compared reading footnotes to “having to go downstairs to answer the door while in the midst of making love.” He’s so right; notes are a buzz-killer and should be used sparingly and only when absolutely necessary.

The value of my scribblings -assuming they have any – lies in the discussion they generate.  It is far less important that I be authoritative than that I be interesting and that animal issues be taken up and discussed by as wide an audience as possible.  Public intellectuals like Peter Singer, Cass Sunstein, Gary Francione, as well as many lesser known but no less thoughtful folks (some of whom populate our growing blogroll while a small sampling of the myriad others can be found here, here, and here), realized this long before I.  Sullivan notes that the medium’s true blogfathers are writers like Pascal and Montaigne, whose meandering styles, willingness to share fragmentary thoughts, and (in Montaigne’s case) to publicly revise and republish, pointed readers’ attention away from the authors and toward their ideas.  (Fine essay about Montaigne here, although you may have to pay for access)

Upshot: The goal – smelting a new set of norms and laws that unhook human society from its exploitive relationship to nonhumans – is collaborative and the individual role within it minuscule.  Hubris is addictive and as dangerous to good writing as careless prose.  One must embrace both the medium and the message.  The cause is urgent and the consequences dire.  Nothing but full-throated blogging will do.  With apologies to the Bard, I say: Cry havoc, and let slip the dogs of prose.

David Cassuto

Egg Production in a Post Proposition 2 World

Will the passage of California’s Proposition 2 lead to an increase or decrease in egg production? The answer is not obvious. Some animal advocates contend that egg consumption will increase because the public will feel better about the way that egg-laying hens are treated in the post Prop 2 world. If this turns out to be the case, Proposition 2 will not meaningfully reduce animal suffering.  On the other hand, the spokesman for the California Farm Bureau Federation (CFBF) recently stated that “[t]he impact of Prop. 2 is pretty obvious…[w]ithin a few years, it will be impossible to find California eggs in stores.” If the CFBF is right, Proposition 2 will not only improve the conditions of confinement of egg-laying hens but also significantly reduce the amount of hens raised for egg production.  For the reasons that I fleshed out in my reply to Francione, I’m inclined to believe that egg consumption will not change significantly as a result of the passage of Proposition 2.  Who’s right? Only time will tell.

Luis Chiesa

Why We Should Support California’s Proposition 2: A (Brief) Reply to Professor Francione

Several weeks ago, Professor Gary Francione urged people not to vote for California’s Proposition 2 next Tuesday (for a discussion of Proposition 2, see Suzanne McMillan’s post here). He grounded his view on the following arguments: (1) that Proposition 2 will do nothing to alleviate animal suffering in the short or long term, as it will not come into effect until 2015, and once it becomes operative it will seldom be enforced because it is riddled with exceptions, (2) that its adoption will result in increased animal exploitation because it will make the public feel better about the way that factory farmed animals are being treated, and (3) “it is important for animal advocates to send a clear message to the Humane Society of the United States, Farm Sanctuary, and other groups to stop promoting measures like Proposition 2”.

I respectfully disagree for three reasons. First – contrary to what Francione contends – it is impossible to know ex ante whether the adoption of Proposition 2 will result in a decrease of animal suffering in the short term. While it is true that the measure will not come into effect until January 1, 2015, it is unliklely that factory farms will wait until New Year’s Eve 2014 to change their practices to conform to the new law. Some will surely begin confining their animals in a way that allows them to fully extend their limbs or wings and turn around freely well before the 2015 deadline. As a result, we should expect to see animal suffering in California increasingly diminish during the next several years, even if some of the suffering that the measure is designed to prevent won’t be eliminated until after 2014. Furthermore, even if it turns out that animal suffering is not reduced meaninfully until Proposition 2 comes into effect, that is no reason to vote against it. A law that requires farm owners to confine their animals in spaces that allow them to move more freely is better than what we have now, even if it will not become operative for several years. Professor Francione’s contention that the law will not significantly reduce animal suffering in the long term because it is riddled with exceptions is difficult to understand. As was pointed out in an Editorial of the San Francisco Chronicle that urged voters to reject Proposition 2 because it could destroy California’s egg producing industry, “more than 90 percent of [the State’s] 20 million egg-laying hens are kept in the battery cages that would be outlawed under Proposition 2.” This seems to be an accurate estimate, as the measure provides exceptions for scientific or agricultural research, veterinary practices, transportation, state and county fair exhibitions and during the act of slaugthering the animal. While these exceptions certainly allow for the confinement of a significant number of animals in crates and cages that do not allow them to move freely, they do not reach a majority of the 20 million egg-laying hens that are kept in battery cages in California. Therefore, it is odd to claim that Proposition 2 will not substantially decrease animal suffering because of these exceptions. Even if we conservatively predict that only half of California’s egg laying hens will be confined in a larger space due to the new law, we will be able to reduce the suffering of about 10 million animals. While not a perfect outcome, this would surely be a welcome development.

Francione’s claim that the adoption of Proposition 2 will lead to increased animal exploitation because it will “make the consumption of animals more acceptable” is akin to claiming that laws banning restaurants from using trans fat will meaningfully increase the demand for french fries and fried chicken because they make their consumption more healthy. The hard truth is that a great majority of people will continue to eat factory farmed products (and french fries and fried chicken) regardless of whether measures banning battery cages (or trans fat) are enacted. Others – like me – will continue to be vegetarians and avoid french fries even if such laws are adopted. Ultimately, laws like this one don’t exert much influence over people’s eating habits. Therefore, I believe that the fear that Proposition 2 will result in increased animal exploitation is overblown.

Finally, Francione’s claim that rejecting Proposition 2 is important because it sends a message to animal advocacy groups to stop promoting such measures is not really an argument against voting against the law, unless one believes that these types of laws do not significantly reduce animal suffering. For the reasons discussed in the preceding paragraphs, I strongly believe that the enactment of Proposition 2 will meaningfully diminish the suffering of animals. Therefore, I hope that Californians support it and commend the Humane Society of the United States and Farm Sanctuary for promoting its adoption.

Luis Chiesa