This article was originally published on the School of Law blog https://criminaljusticeinireland.wordpress.com

Laura Donnellan, Lecturer in Law, School of Law, University of Limerick // Original post

Zoophilia or bestiality, as it is more commonly referred to, was recently made illegal in Denmark. Only three European Union member states, Hungary, Finland and Romania, have failed to criminalise sexual intercourse with animals. The change in Danish law (Animal Welfare Act), which came into force in July 2015, was introduced partly to prevent animal sex tourism as there was anecdotal evidence of animal brothels, clubs and organised animal sex shows. Denmark had become a haven for zoophiles as neighbouring countries, Sweden, Norway and Germany, had all banned sexual intercourse with animals. Under German law, which was introduced in 2012, an individual found to have engaged in sexual intercourse with an animal faces a fine of up to €25,000 (as cited by RT News, “Animal urges: Bestiality ban passes Bundestag”, published online on December, 14, 2012). The other reason behind the ban was due to concern for animal welfare as the Minister for Food, Agriculture and Fisheries, Dan Jørgensen, an advocate of animal welfare, was quoted as stating: “the most important [reason] is that in the vast majority of cases it’s an attack against the animals” (as cited by ScienceNordic, “Denmark moves to ban bestiality – but is sex with animals really so bad?“, published online on October, 16, 2014). While sexual intercourse with animals had previously been criminalised in Denmark, it was only a crime if there was unnecessary suffering on the part of the animal. Minister Jørgensen contended that it was difficult to prove that the human had caused unnecessary suffering and that the benefit of doubt had to be given to the animal as “an animal by its very nature cannot say no” (as quoted in The Local, “Denmark’s bestiality ban moves forward”, published online on February, 25, 2015). The amended 2015 Act explicitly makes it an offence to have penetrative sex with an animal and is punishable by one year imprisonment for a first infraction and two years for repeat offences.

The Ban in Denmark

The ban in Denmark was not without its dissenters as some viewed the new law as a form of regulation of human morals. The Danish Ethical Council for Animals was of the opinion that existing animal welfare laws already protected animals from unnecessary suffering and that the amendment was superfluous. The Council Chairman, Bengt Holst in espousing the anthropomorphic view, referred to the dominion status of humans when it comes to reproductive rights of animals:

“It is us humans who control when and how an animal is allowed to reproduce. When one draws the semen of a stallion for artificial insemination, you are doing exactly the same thing as if you were having sex with an animal. Physically, it is the same thing you do with the animal”. (as cited by The Local, “Bestiality ban not needed: Ethics Council”, published online on October, 13, 2014).

Scientists also entered the debate with one proffering that the size of the animal is an important consideration. While penetrative sex would harm a hen, a cow or horse would arguably not be hurt (as stated by Stine B. Christiansen, PhD, University of Copenhagen and The Danish Council for Animal Ethics, ScienceNordic, “Denmark moves to ban bestiality-but is sex with animals really so bad?, published online on October, 16, 2014). Dr Christiansen further argued that there was no evidence to suggest animals did not enjoy interspecies sex and that animals often enjoy sex for pleasure and not for the purposes of reproduction.

A Gateway to Other Offences?

One of the main arguments used by those who support a ban on bestiality is that animals cannot consent to sexual intercourse with a human. Equally, an animal cannot consent to being killed used for meat (Kim Stevenson, Anne Davies and Michael Gunn, Blackstone’s Guide to The Sexual Offences Act 2003 (Oxford: OUP, 2004, at p.141). Liberty (Liberty’s second reading briefing on the Sex Offences (Amendment) Bill in the House of Commons, July, 2003, at paragraph 41, pp.17-18)) was concerned about the Sexual Offences Act 2003 in England and Wales as it felt that sexual intercourse with an animal should be dealt with under animal welfare legislation and not under sexual offences. In looking at the issue from an animal welfare perspective, Liberty contended that the welfare of animals “is of greater concern than the morality of the sexual act” (at p.18). It questioned the restriction of the offence to only penetrative sex (vaginal or anal of the person or animal) and why it was not extended to all forms of sexual acts involving an animal. Perhaps society’s abhorrence to zoophilia is due to the fact that it is seen as a “gateway offence, one that could lead to offending against other vulnerable victims”, most notably children (Samantha Pegg, Anne Davies, Sexual Offences: Law and Context (Routledge, 2016, at p.128). Under the Sexual Offences Act 2003, section 69, a person is prohibited from intentionally penetrating either vaginally or anally of the person or animal or being reckless as to it which s/he is penetrating. Oral penetration is excluded (Sexual Offences: Law and Context, at p.129). Under section 1 of the Act, rape is defined as vaginal, anal or oral penetration of a person who is not consenting. Under section 70 which deals with sexual penetration of a corpse, penetration refers to any part of the body. Under the Criminal Justice and Immigration Act 2008 section 63(7)(d) it is an offence to be in possession of extreme pornographic images and it includes the offence of “a person performing an act of intercourse or oral sex with an animal (whether dead or alive)”, and a reasonable person looking at the image would think that any such animal was real. Pegg and Davis (Sexual Offences: Law and Context, at p.129) contend that there is a lack of consistency in the law relating to animals and sexual offences. Perhaps a provision could be included in the Animal Welfare Act 2006 that would make it an animal cruelty offence and put the focus back on the welfare of animals and not about regulating human morals.

Lack of Reporting

What emerges from the discussion on Denmark is that the fact that zoophilia seems more widespread than in comparison to Ireland, England and Wales. In a study conducted by the Danish Justice Ministry in 2011, 17% of veterinary surgeons surveyed had treated an animal they suspected had intercourse with a human (as cited byReuters, “UPDATE 1-Denmark bans bestiality in move against animal sex tourism”, published online on February, 21, 2015). However, the figures in Ireland, England and Wales could be somewhat distorted. According to Home Office figures, in 2010/2011 only 12 “unnatural sexual offences” were recorded (cited by Jo Brayford (Editor), Francis Cowe (Editor), John Deering (Editor), Sex Offenders: Punish, Help, Change or Control?: Theory, Policy and Practice Explored (Routledge Frontiers of Criminal Justice) (Routledge, 2012, at p.154). Sexual penetration with a corpse was included in the 12 recorded offences. There is no requirement of veterinary surgeon to report any suspected cases to the authorities. Members of the public are also reluctant to report to the police. The victim, the animal, cannot make a complaint. In England and Wales, the Royal Society of the Prevention of Cruelty to Animals (RSPCA) is not always aware that an animal has been subjected to sexual intercourse when officers are inspecting suspected cases of cruelty. Offences of this nature are very much taboo.

Irish Law and Zoophilia

While laws around the European Union have been updated in relation to zoophilia, the offence of bestiality in Ireland is governed by Offences Against the Person Act 1861, sections 61-63 (these sections were repealed in England and Wales by virtue of the Sexual Offences Act 1956 (c. 69), Schedule 4. Section 12 of the Act provided for bestiality and reduced the punishment from life imprisonment to two years. The 1956 Act was repealed by the Sexual Offences Act 2003). Until the Criminal Law (Sexual Offences) Act 1993, bestiality and buggery between humans were seen as equivalent offences and fell under the rubric of “unnatural offences”. Homosexuality was decriminalised by virtue of section 2 of the 1993 Act. Prior to the removal of buggery, section 61 prohibited sodomy and bestiality and provided a sentence of penal servitude for life or any term not less than ten years. Section 62 provided that anyone attempting or intending to commit either sodomy (or any indecent assault upon any male person) or bestiality were guilty of a misdemeanour with the court being endowed with the discretion to sentence the offender for up to ten years but not less than three years of penal servitude or imprisonment for any term not exceeding two years with or without hard labour. Section 63 defined carnal knowledge to mean penetration only and ejaculation (“Emission of Seed”) was not needed to prove that an offence had been committed.

Under paragraph 9 of the Schedule of the Sex Offenders Act 2001, “Sexual offences for the purposes of the Act” includes the offence of buggery with a person or with an animal as referred to in section 61 of the Offences Against the Person Act 1861. Under paragraph 10, the offence of an attempt to commit such buggery referred to in section 62 of the Act of 1861 is also referred to. While the 1993 Act abolished the offence of buggery between persons, O’Malley opines that “buggery in the form of intercourse with an animal (bestiality) was thereby left intact, although these offences are exceedingly rare” (Thomas O’Malley, Sexual Offences (2nd ed.) (Dublin: Round Hall, 2013, at p.126).

Unlike the Sexual Offences Act 2003 (England and Wales), the Irish legislation refers only to buggery and there is no mention of vaginal penetration between female human and male animal nor penetration by a human male of a female animal. However, in a case from December 2012 presided over by Judge Carroll Moran in Limerick Circuit Court, there was vaginal penetration by woman who had sexual intercourse with a German Shephard but died subsequently in the hospital.  The owner of the dog was charged under the 1861 Act and was given a three year suspended sentence (section 62), despite “the disgusting nature of the offence”. The male offender’s name was put on the Sex Offenders’ Register for five years. The maximum penalty the man faced was life in prison under section 61. The male offender was charged with buggery even though it was the woman who had sexual intercourse with the dog. A DNA test from the semen obtained from the deceased was shown to come from the German Shephard. An aggravating factor for the Court was the fact that the owner of the dog had accessed a bestiality website which had over 1.5 million hits on his laptop over a five month period. Judge Moran referred to the facts of the case as “socially repugnant . . . even in these tolerant times” (quoted by The Irish Times, Kathryn Hayes, “Suspended three-year sentence for man’s role in bestiality act”, published online on December, 15, 2012). The offender, a bus driver, was restricted from driving a bus for five years under S.I. No. 318/2009 – European Communities (Road Haulage and Road Passenger Transport Operator’s Licences) Regulations 2009 which prohibits a convicted sex offender from operating a vehicle with over nine persons including the driver. As the willing participant had passed away and thus was not charged with an offence, it would seem that vaginal penetration would fall within the definition of buggery for the purposes of section 61 of the 1861 Act. Although of persuasive authority, the case of R v Bourne (1952) 36 Cr. App. R. 125 is instructive as it involved vaginal penetration of a dog by the appellant’s wife who was under duress and thus lacked the necessary mens rea. Had the wife been a willing participant she would have been convicted. The appellant was found to be a principal in the second degree crime of buggery and an aider and abettor. Although section 61 refers to buggery, it would arguably also include vaginal penetration under Irish law.

Conclusion and Recommendations

Irish legislation on zoophilia is need of updating. The 1861 Act is a bastion from the reign of Queen Victoria. Ireland overhauled its animal welfare legislation in 2013 under the Animal Health and Welfare Act 2013, which commenced on the 6 March 2014. The inclusion of sexual intercourse with an animal would have put animal welfare to the forefront. The 1861 Act represents the anthropomorphic view, i.e. the effect that bestiality has on society as opposed to the effect it can have on an animal. Given the stigma attached to such an offence, community orders may be the best way to deal with offenders. Also, those found to have committed an offence could be banned from owning animals for life. However, the argument that zoophilia is a “gateway offence” and may lead to the abuse of vulnerable persons including children means that the offence should not be taken lightly. However, the fact children are already protected under the Sexual Offences Act 2006 and in the future when the Criminal Law (Sexual Offences) Bill 2015 becomes law, an amendment to the Animal Health and Welfare Act 2013 might be the most prudent way to deal with the issue of sexual intercourse and sexual abuse of animals.

A mandatory reporting requirement could be placed on veterinary surgeons to report suspected cases of zoophilia to the local authority, the Gardaí or customs officials as stipulated by the Animal Health and Welfare Act 2013. Parts 8 and 9 of the Act pertain to reporting allegations of animal cruelty. Part 8 (sections 37-46) deals with enforcement of the Act. It refers to “authorised officers”. While not stipulated in the Act, the debates surrounding the Bill are instructive. The Gardaí and customs officers are automatically deemed to be authorised officers. Section 37 empowers the Minister or an authorised officer of the Department of Agriculture to appoint in writing persons that s/he considers appropriate to be authorised officers. Section 37(2) adds that the manager of the local authority may appoint in writing members of the authority (or another authority) as authorised officers. Thus, authorised officers include: the Gardaí, customs, personnel from the Local Authority and representatives from animal welfare groups.

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