By Christiana Desrosiers, Junior Associate, Pace International Law Review

Bestiality occurs when a human engages in sexual acts with an animal. It is prevalent throughout the world and is more common than most think. For instance, in parts of Colombia, it is a rite of passage for a male to have sex with a donkey. In the United States, bestiality is legal in the District of Columbia as well as nine states—Hawaii, Kentucky, Nevada, New Mexico, Ohio, Texas, Vermont, West Virginia, and Wyoming.[1] In Mexico, it is reported that there are shows where a person can pay to see a woman and a donkey engage in sexual acts. There aren’t exact figures detailing the commonality of bestiality, but it is legal in many parts of the world.

In 2013, Denmark had a law which stated that bestiality can be permitted as long as the animal didn’t suffer; but of course, how can one tell if an animal has suffered? Who is to judge? Is the trier of fact to judge suffering from an animal’s perspective or a human’s? And how does one judge “suffering”? Does physical or psychological pain count? This law was also found in Sweden and Finland. However, in 2014, Sweden banned bestiality, and Denmark followed suit in 2015 amid concerns of sex tourism with animals, although it is still legal in Finland.[2]

Canada is currently addressing the issues of bestiality. While the Canadian Criminal Code outlaws buggery, for a successful conviction, the government must show that the animal was penetrated or the person was penetrated by the animal. In a recent case, R v. D.L.W.[3], the defendant was able to reverse his bestiality conviction by claiming that the sexual acts that he made the dog perform on his stepdaughter did not amount to the definition of bestiality under the English version of the 1955 criminal code. In determining the meaning of bestiality, the Supreme Court of Canada applied the common law definition of buggery, identifying its historical import from the English law, “This was the state of the law when the Offences Against the Person Act, 1861 was enacted in England. The offence in substantially the same form was carried over into the first English version of the Canadian Criminal Code in 1892 and continued to be in force until the offence called bestiality was introduced into the English version of the Code in the 1955 revisions.”[4]

The Court further stated that “it is for Parliament, not the courts to expand the scope of criminal liability for this offence. Absent clear parliamentary intent to depart from the clear legal definition of the elements of the offence, it is manifestly not the role of the courts to expand that definition.”[5]

Prior to the ruling of the case, a member of the Canadian Parliament, (Liberal) Nathaniel Erskine-Smith, wrote a bill, Bill C-246—the Modernizing Animal Protections Act[6], to, among other things, amend the definition of bestiality to mean sexual activity between a person and an animal. After the ruling of the Supreme Court, there were continuing talks of the rewriting of the legislation. However, on October 5, 2016, the Canadian Parliament and the Prime Minister, Justin Trudeau, voted against the bill in second reading by a vote of 198 to 84.[7] The bill was overwhelmingly not supported by the Liberal MPs (“Members of Parliament”). As of date, the law on bestiality has yet to be rewritten in Canada.[8]

The fact that bestiality is a common occurrence in some parts of the world is horrifying. Furthermore, a person should not be able to circumvent the law by stating (and proving) that he or she never penetrated the animal in order to avoid criminal prosecution. In the future, lawmakers must do more to protect the welfare of an animal, and can work to deter this behavior with increased penalties, such as: two to three years’ imprisonment coupled with psychiatric help and placing the perpetrator’s name on a bestiality registry to prevent him or her from owning animals. The decision is for the lawmakers; but whatever they decide they must put the welfare of the sexually abused animal first and prevent those who wish to fornicate with animals from continuing their practice.

[1] Rebecca F. Wisch, Table of State Animal Sexual Assault Laws, Animal Legal & Historical Ctr., 2016, https://www.animallaw.info/topic/table-state-animal-sexual-assault-laws.

[2] Yes, In Finland You Can Have Sex With Your Pet, YLE (Jul. 14, 2015), http://yle.fi/uutiset/osasto/news/yes_in_finland_you_can_have_sex_with_your_pet/8153974.

[3] R. v. D.L.W., 2016 SCC 22 (Can.), https://scc-csc.lexum.com/scc-csc/scc-csc/en/15991/1/document.do.

[4] R. v. D.L.W., 2016 SCC 22 (Can.).

[5] Id.

[6] Modernizing Animal Protections Act, Bill C-246, 1st Session, 42nd Parliament, 2016.

[7] Ryan Maloney, Nathaniel Erskine-Smith’s Animal Cruelty Bill Defeated, Huffington Post Canada (Oct. 06, 2016, 10:07AM), http://www.huffingtonpost.ca/2016/10/06/nathaniel-erskine-smith-animal-cruelty-bill-c-246_n_12371614.html.

[8] MP’s Bid to Toughen Animal Cruelty Laws Defeated, Government Pledges Own Reform, Lethbridge News Now (Oct. 5, 2016), http://lethbridgenewsnow.com/article/533661/mps-bid-toughen-animal-cruelty-laws-defeated-government-pledges-own-reforms. (“Reforms to the animal cruelty provisions will be addressed in the coming review of the Criminal Code . . . .”).

Updated November 7, 2016 – corrected the number of jurisdictions where Bestiality is legal within the United States.