Bestiality requires penetration: SCC

Touching your animal in a sexual way is legal, as long as it doesn’t injure the animal or involve penetration.

Nowhere does the Supreme Court of Canada explicitly say this, but the implication is clear after reading the decision in R. v. D.L.W. — a disturbing case of child abuse that involved one count of bestiality.

The respondent had been convicted of multiple sexual offences against his two stepdaughters. In one instance, he tried to induce sexual intercourse between one of them and the family’s dog. When that didn’t work, he used peanut butter to induce oral sex.

The defendant was convicted of numerous sexual offences, along with one conviction for bestiality. That conviction, however, was overturned on appeal, after the defendant successfully argued that the statutory definition of bestiality requires there to have been sexual penetration.

Today, in a 6-1 majority decision written by Justice Thomas Cromwell, the Supreme Court upheld the appeal court’s decision, ruling that — regardless of public perception — the legal definition of the word “bestiality” extends from its introduction as a criminal provision in the 19th century. At that time, the term “buggery” was used instead, denoting a specific act that must include penetration.

In other words, the court insists that it cannot create a crime merely because public perceptions around the definition of the word may have changed.

And because Parliament has failed to update its definition of bestiality, the court must rely on historic definitions that have been grandfathered into current legislation.

As the decision states: “Courts will only conclude that a new crime has been created if the words used to do so are certain and definitive. This approach not only reflects the appropriate respective roles of Parliament and the courts, but the fundamental requirement of the criminal law that people must know what constitutes punishable conduct and what does not, especially when their liberty is at stake.”

The animal rights organization Animal Justice acted as intervener in the case, arguing that the appeal had not only to do with protecting children and punishing sexual offenders — it also had to do with protecting animals.

In a statement released immediately after the decision, the organization urges Parliament to quickly pass the Modernizing Animal Protections Act, a private bill tabled by Liberal MP Nathaniel Erskine-Smith.

“As of today, Canadian law gives animal abusers licence to use animals for their own sexual gratification,” executive director Camille Labchuk said. “This is completely unacceptable, contrary to societal expectations, and cannot be allowed to continue. . . . The Supreme Court threw the ball into Parliament’s court, and it is now time for legislators to act.”

Peter Sankoff, who represented Animal Justice before the court, says the laws around animal cruelty simply do not cover non-penetrative sexual acts, because the cruelty provisions require proof that the animal was made to suffer.

“It’s almost impossible to prosecute anyone for sexually offending an animal if you don’t use the bestiality provision,” says Sankoff. “You could injure the animal in some way that’s noticeable, there’s no question. But the rest of the time, it’s very difficult to get that proof. . . . It’s not like a child who can come forward after the abuse six years later and say, ‘I was abused, I’m suffering.’ You never have that evidence.”

Still, Sankoff says the ruling is not a total defeat for his client.

“I’m less disappointed than you might think,” says Sankoff. “What our client was looking for, as much as anything else, was recognition in law from the Supreme Court that animal interests are worth protecting and are important to protect. And we actually got that from both the majority and the dissenting judgment — and that’s never happened before.”

Indeed, as the decision states, “the fundamental values at stake in this debate include the protection of vulnerable animals from the risks posed by improper human conduct and the wrongfulness of sexual conduct involving the exploitation of non-consenting participants.”

Sankoff says this is the first time the Supreme Court has ever acknowledged the rights of animals to be protected from sexual exploitation, and it should be used as a call to arms for Parliament to act.

“I think it’s a recognition from the court that this is a value worth protecting. And to me, that’s really important in terms of advancing animal interests,” he says. “So, really, it’s a starting point for future arguments”

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