Several critics of gay rights over the past decade—from Republican Presidential candidate Mike Huckabee and Colorado lieutenant-governor candidate Janet Rowland to baseball-player-turned-conservative-activist John Smoltz have drawn widespread condemnation for comparing homosexuality to zoophilia and for arguing that according legal protections to same-sex relationships will open the door to legalized bestiality.
While decent people everywhere were correct to criticize this flawed and highly inflammatory analogy, few—if any—critics of the comparison dared to challenge its underlying premise: that sex between human beings and animals should be illegal under all circumstances. In fact, despite the concerns of opponents like Notre Dame philosophy professor Ralph McInerny that the decriminalization of bestiality was “an idea whose hour will surely come, and soon,” the reality is that the past few years have witnessed a dramatic increase in anti-bestiality statutes.
Illinois and Missouri both recriminalized bestiality in 2002. Washington State made human-animal sex a Class C Felony in 2006, punishable by up to five years in prison. Even socially-permissive Holland—renowned for its progressive policies on marijuana and prostitution—banned such acts in 2008. Unfortunately, the legislative debate over these bans has lacked even the pretense of serious reflection or intellectual rigor. Instead, most lawmakers have relied upon widespread public repugnance to justify legal action.
As a co-sponsor of the Washington State law, State Senator Bob McCaslin, observed: “How could you be for (bestiality)? My God!” Such an approach differs greatly from the way our society addresses most legal prohibitions, where we place the burden upon those supporting such restrictions to prove that laws are necessary.
Three justifications have been advanced for recently-enacted bans on bestiality. The first of these reflects the concern of animal rights advocates, such as members of People for the Ethical Treatment of Animals, that bestiality is synonymous with animal abuse. Animals cannot consent in a meaningful way to sexual contact, they argue, so human-animal sex is akin to rape.
The problem with this reasoning is that animals cannot consent—under the legal definition of that term—to anything. We do not describe owning a pet dog as kidnapping, even when the canine is restricted to the inside of a home, although confining a human being in the same manner would clearly be unethical. What might make more reasonable sense is to speak of animal welfare. Certainly, to the degree that animals experience pain, an argument can be made for preventing such suffering. (Although I suspect that the vast majority of lawmakers who voted for anti-bestiality statutes do not eschew hamburgers, leather-goods or even fur—not to mention cleansers and cosmetics safety-tested on the eyes of lab rabbits.) But while (without becoming graphic) some such human-animal interactions are likely painful, others may well be neutral or even pleasurable for the animals concerned. As the father of the modern animal rights movement, Princeton-based philosopher Peter Singer, points out, “Sex with animals does not always involve cruelty.'" The trial of the British man accused of masturbating “Freddie the Dolphin” in 1991 offers one case where lengthy court testimony did not suggest suffering on the part of the animal. Of course, to the degree that such interactions do cause suffering, and such suffering can be proven, generic animal cruelty statues should provide ample means for redress.
A second set of objections to bestiality relates to the safety of the humans who engage in such acts. Washington State’s law was inspired, in part, by the tragedy of Kenneth Pinyan, a zoophile who was fatally injured while having sex with an Arabian stallion. However, opponents of bestiality have never offered evidence that such accidents are common enough to justify legislative action. Moreover, the uncomplimentary language these prohibitionists used to describe Pinyan at the time of his death suggests that his welfare was not their primary concern.
The final argument for prohibition—and likely the one that explains its strong public support—is that crossing the species barrier has been a sexual taboo in this country, at least publically, for many years. Opponents of bestiality often describe themselves as advocates of “human exceptionalism” and express the belief that intercourse with animals debases the dignity of human beings by blurring the lines between people and animals.? (They fail to explain why sex is unique in this manner—why playing Frisbee with a dog, or eating a corned beef sandwich, does not also blur such boundaries). Of course, nobody is suggesting that these critics be forced to sleep with animals, anymore than we would force vegetarians to eat lamb. However, the burden should be placed upon the prohibitionists to explain why a small minority of individuals with non-mainstream sexual interests pose a threat to our overall societal welfare.??
I leave open the question of how many zoophiles actually live in the United States: The research of sexologists such as Kinsey, as well as a brief survey of the Internet, suggest a considerable number. Needless to say, public animosity—and criminal statutes—likely keep them in the shadows.
Supreme Court Justice Louis Brandeis wrote eighty-one years ago in Olmstead v. United States that “the right most valued by civilized men” is “the right to be let alone.” Yet it is easy to let men alone when they do things our way. The test of a truly enlightened civilization is one that lets people alone, to pursue their own predilections, even when the majority of us prefer to live our lives very differently from theirs.
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