A Beastly Provision: Why the Offence of ‘Intercourse with an Animal’ Must Be Butchered
| DOI | 10.1350/jcla.2011.75.6.740 |
| Published date | 01 December 2011 |
| Author | Imogen Jones |
| Date | 01 December 2011 |
| Subject Matter | Article |
A Beastly Provision: Why the
Offence of ‘Intercourse with an
Animal’ Must Be Butchered
Imogen Jones*
Abstract This article examines the offence of ‘Intercourse with an animal’
in s.69 of the Sexual Offences Act 2003. It asks whether s. 69 is compatible
with liberal justifications for criminalising such behaviour and questions if
the way in which the offence is constructed is defensible. Arguments
grounded in the concepts of autonomy, consent and rights are rendered
irrelevant when placed against the context of the use of animals by
humans more generally. Concurrently, limiting the offence to penile
penetration draws an illogical line, excluding harmful and sexually devi-
ant behaviour from the ambit of the offence. Consequently, it is argued
that the offence needs to be reconsidered by the legislature in order to
achieve a more consistent, principled and rationally defensible approach
to interspecies sexual acts.
Keywords Bestiality; Intercourse with an animal; Legal reform;
Harm principle; Legal moralism
Many of us, and by ‘us’ I mean fellow humans, probably feel some sort
of repulsion at the idea of another human enjoying sexual intercourse
with a non-human. This sentiment is likely to underpin the criminal
offence ‘Intercourse with an animal’ found in s. 69 of the Sexual
Offences Act 2003. This provision criminalises the intentional penile
penetration of an animal’s vagina1or intentionally allowing a non-
human to penetrate a human vagina with its penis.2Without significant
reflection about this provision, it would be easy to remain content with
the existence of this offence. But reflect we must because s. 69 is an
excellent example of the creation of a criminal offence which cannot be
justified as currently drafted. This is the case not only because it fails to
meet with liberal justifications for criminalisation, but because it also
fails to pass many hurdles of logic and consistency. Whilst any one of
these objections should be damaging to the offence, their combined
force should be fatal, illustrating the need for reform of the substantive
criminal law.
The legal background
‘Intercourse with an animal’ was one of a number of new sexual
offences created by the Sexual Offences Act 2003. Prior to the 2003 Act,
* Lecturer in Criminal Law, School of Law, University of Manchester. Thanks to Toby
Seddon, Muireann Quigley, Jonathan Doak and David Gurnham for their
comments on earlier versions of this article.
1 Sexual Offences Act 2003, s. 69(1).
2 Sexual Offences Act 2003, s. 69(2).
528 The Journal of Criminal Law (2011) 75 JCL 528–544
doi:10.1350/jcla.2011.75.6.740
bestial acts were dealt with under sodomy and buggery laws. The
Buggery Act 1533 punished ‘sodomy’, meaning both anal sex and
bestiality, by death. The 1533 Act suffered the fate of serial repeal and re-
enactment until finally, in 1828, s. 1 of the new Offences Against the
Person Act replicated its provisions, sodomy later being retained as a
non-capital offence in s. 61 of the Offences Against the Person Act 1861.
Prior to the 2003 Act, the provisions of the 1861 Act were replaced by
ss 12 and 13 of the Sexual Offences Act 1956, which respectively dealt
with buggery and indecent exposure. In just under a century, behaviour
which once attracted the ultimate penalty was downgraded to an of-
fence which attracted penalties of between two and five years’ imprison-
ment, depending on the offender.
The view that enjoying sexual acts with animals was no longer
serious enough to attract such severe penalties seems to have been
reflected in post-1956 case law. This suggests that such behaviour was
performed by weak and pathetic rather than ‘bad’ individuals. For
example, in R vHigson3the defendant’s interrupted attempt to bugger
his pet Pyrenean Mountain bitch resulted in a two-year prison sentence.
On appeal this was reduced to a probation order on the grounds that if
upheld, no ‘sensible scale for buggery of a human’4would remain and
that ‘it was the defendant not the dog that needed help’.5This approach
appears to have found sympathy with the judiciary. Hebenton, Pease
and Phillip’s study of sentencing for offences against non-humans be-
tween the 1950s and 1990s found that cases where there was no
‘unwilling’ second human participant were dealt with leniently. Whilst
emphasis was placed on the moral unacceptability of the offence, the
language of ‘help’ for the perpetrator was often invoked. Perhaps most
importantly the animal did not seem to feature.6
When, in 2000, the law relating to bestiality was the subject of review
again, it was confirmed that the acts should still fall within the ambit of
criminal sexual offences (as opposed to welfare offences).7Reasons cited
were the dignity of both humans and non-humans as well as the lack of
ability of the non-human participants to consent to the sexual activity.
The human behaviour involved, it was suggested, was not a reflection of
frailty but rather a demonstration of deranged sexual behaviour.8This
appeared to indicate a shift towards a view which placed significance on
the experience of the ‘victim’ animal as well as the potential conse-
quences of the behaviour for humans.
3 (1984) 6 Cr App R (S) 20.
4 Ibid. at 21, per Leggatt J.
5 Ibid. Interestingly, the judge also drew a parallel between the initial sentence
awarded and what he considered might be appropriate if the attempted buggery
had been upon a woman or child.
6 B. Hebenton, K. Pease and C. Phillips, ‘Sentencing Offenders against Non-human
Animals in England and Wales’ (2003) 1 Crime and Criminal Justice International 247
at 263–5.
7 Home Office, Setting the Boundaries: Reforming the Law on Sexual Offence (2000) para.
8.5.2.
8 Not least because the government was convinced that there was a wider connection
between animal abuse and both other sexual offences and child abuse. See Home
Office, above n. 7 at para. 8.5.3.
Why the Offence of ‘Intercourse with an Animal’ Must Be Butchered
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