Animals

The ACT Attorney General, Simon Corbell, last week introduced the Crimes Legislation Amendment Bill 2010 (ACT) that includes re-establishment of the offence of bestiality.

The re-introduced offence will criminalise all sexual activity between a person and an animal, punishable by a maximum of 10 years imprisonment.

The ACT will join South Australia as the only Australian jurisdiction to state that bestiality involves all sexual activities between a person and an animal, with that broad definition contrasting with law in the Australian jurisdictions, where bestiality offences are restricted to penetration by or of an animal.

The Attorney General commented that -

This amendment will ensure that where an animal is used in a serious sexual assault, then this offending is captured by the most serious sexual offences in the ACT. ...

The Government identified that the offence of bestiality had been repealed at self government and saw the need to re-establish the offence to properly protect animals into the future in the ACT.

A consequential amendment to the Prostitution Act 1992 (Cth) will to ensure that a person convicted of the new bestiality offence cannot be an owner, operator or director of a commercial brothel or escort agency.

The rational for reintroduction is unclear, with no indication that abuse of/by animals is widespread and questions whether the AG is exploiting recent furore over footballer Joel Monaghan.

A quick scan of Ross on Crime  (Lawbook, 4th ed, 2009) suggests that salient statutes outside the ACT appear to be s 211 Criminal Code (Qld), s 69 Criminal Law Consolidation Act 1935 (SA), s 59 Crimes Act 1958 (Vic), ss 79 and 104 Crimes Act 1900 (NSW), s 138 Criminal Code (NT), s 122 Criminal Code (Tas) and s 181 Criminal Code (WA). Reported Australian ccase law - in contrast to apocrypha about rural congress with pigs, cows, sheep and goats - appears to involve dogs and even wallabies, eg R v Packer [1932] VLR 225 (CCA), R v. CAP [2009] QCA 174 and R v Tutchell [1979] VR 248 (CCA). The description in Buckley v R [2006] HCA 7; (2006) 224 ALR 416; (2006) 80 ALJR 605 is particularly unlovely.

In past times the penalty was death: examples are R v Jones [1833] TASSupC 6 and R v Smith (No 3) [1834] NSWSupC 125, with William Smith being "convicted of an unnameable offence". The court in that case stated that

after a patient trial, a Jury of his Country had found him guilty of a most atrocious offence, not to be named amongst mankind; he should follow the example of the learned Chief Justice, and forbear polluting the ears of the auditory by referring to the particulars of the heinous offence; all that remained for him then, in obedience to the commands of the law, was to order that the prisoner be taken to the place whence he came, then to the place of public execution, and then to be hanged by the neck until dead.

Changing values regarding the offence and its punishment are highlighted in works such as 'Zoosex and Other Relationships with Animals' by Rebecca Cassidy in Transgressive sex: subversion and control in erotic encounters (Berghahn, 2009) edited by Hastings Donnan & Fiona Magowan, Peter Singer's controversial 2001 'Heavy Petting', Bestiality and Zoophilia: Sexual Relations with Animals (Berg, 2009) edited by Andrea Beetz & Anthony Podberscek, and 'Peter Singer's 'Heavy Petting' and the Politics of Animal Sexual Assault' by Piers Beirne in (2001) 10(1) Journal of Critical Criminology 43-55.