Sex with Animals: Is Proposed CA Bestiality Law (AB 611) Fatally Flawed?

The postponement is to allow the deputy for Assemblyman Adrian Nazarian to obtain more information on the Bill and also due to the strong objection by vegan-activist Commissioner Roger Wolfson, who stated, "You just lost my vote," when the deputy explained that artificial insemination of food/farm animals and purebred dogs would be exempted from the law.   

Whether considered from the standpoint of reproducing animals to be carved up as steaks and chops or ground into hamburger, or to create more expensive champion dogs to be paraded at the Westminster Dog Show to stimulate the public's appetite for purebreds, Commissioner Wolfson highlighted important questions. Is it necessary to extend approval of what he considers inhumane methods of reproducing animals for slaughter in a bill prohibiting bestiality? And, will major humane organizations such as PETA, HSUS and the ASPCA all endorse this Bill? 

If it is cruel and abusive for someone to have (non-injurious) sexual relations with an animal, is it not equally inhumane and exploitative for them to be mechanically or manually impregnated as breeding stock? And can the industries guarantee that there is no sexual context for some of the humans involved? (This is definitely the type of job to which most employees aspire.) 

AB 611 cannot fall back on the "lack of consent" by pets for sexual contact as a primary humane concern, when it is highly unlikely that the cattle, pigs, horses and dogs (and other animals) bred for commercial purposes agreed to the invasions of their bodies by humans merely to assure they reproduce. 

THE DANGERS OF LEGISLATING MORALITY 

California is long overdue for an EFFECTIVE law that prohibits (especially injurious) sex with animals and the current Penal Code Sec. 286.5 needs to be revised. However, the flaws that are pointed out by defense attorneys, and others involved in various aspects of law enforcement, indicate that AB 611 -- as worded -- poses the same problem, destroying the ability to successfully prosecute offenders. 

AB 611, while well-intentioned, seeks to mandate morality and "contact" -- rather than eliminate the harm that could result from the act of making insertions into the bodily orifices described graphically in the bill. The immorality of touching the body of the animal seems more egregious than physical damage. 

Yet, we touch our pets in all kinds of intimate ways daily in cleaning and carrying them -- at what point does this law draw the line?  

Ironically, the desire to legislate morality (rather than punish harm) runs counter to the current trend to legalize human sexual acts which were previously prohibited and abolish laws which interfere with personal sexual preference.  

Laws governing bestiality (sex with animals) have been viewed separately from sodomy laws in the United States. Through the 20th century, the gradual liberalization of American sexuality led to the elimination of sodomy laws governing consensual acts between adults in most states. In 2003, the Supreme Court decision in Lawrence v. Texas, invalidated sodomy laws in the remaining 14 states. 

The increase in laws prohibiting bestiality in the U.S. over the past 20 years has steadily climbed. As of February 10, 2018, 45 states and 2 territories ban sex with animals, while 5 states and the District of Columbia have decriminalized it (due to repeal of sodomy laws).   

Although many states are passing such bills, this new trend has not yet survived fact-finding and Constitutional challenges in court. 

 LEGAL FLAWS THAT WILL HURT OR KILL THE BILL 

 AB 611 is also fatally flawed in that it allows seizure of the animal prior to a determination of fact and conviction, WITHOUT providing a "due process" hearing. This creates an unconstitutional "taking" of private property. But it can be remedied, and some suggestions are made below.  

GOOD INTENTIONS NOT ENOUGH 

 Assemblyman Nazarian is obviously dedicated to passage of a successful law to address sexual abuse of animals. However, AB 611 appears to suffer from some of the same fundamental issues that Assemblyman Mike Gatto encountered in 2014 with his politically disastrous CA Animal Sheltering Bill (AB 2343). 

The "feel-good" language of the bill was brought by passionate activists, including attorney-activists with an agenda, rather than objectivity--who were outside the industry and did not consider the feasibility of enforcement and effectiveness from a legal context and in practicality. 

Major animal-shelter managers soon realized that the philosophy governing the AB 2343 proposal was unworkable and--in some cases--violated property rights of pet owners  An organized rebuttal which ended the bill, stated,  "the concerns relayed by these professionals...may have been heard, but were in fact dismissed.” 

Some of the critics with no sheltering experience appointed themselves as the experts to fix it—as long as the “fix” served their interests. The legislator who is a very caring man, but not a sheltering expert, and his staff, were convinced this disguised effort to destroy the state’s animal-sheltering system was a positive step, but it became a political nightmare. 

IF A PET CAN BE YOUR "CHILD"....  

With the current accepted trend to view pets as family members or children--and continuing efforts to gain tax-exemptions for their needs, including day-care, veterinary/medical services--increasingly there will undoubtedly be pressure by some to also be allowed to consider them as "lovers" or even spouses.  

Pets now live inside our homes and are hugged, kissed, bathed, held and caressed in much the same manner as a child or significant other. They also live with and sleep with children.  Children are curious and engage in sexual contact with each other--it is likely that this proximity and access to pets can also increase the likelihood of sexual contact--accidentally and/or exploratory. Do we want to label each of these acts as punishable by law or a precursor to adult criminality? 

 The 2003 Supreme Court decision (Lawrence v. Texas) was indicative of a change in moral judgment and a move away from judging morality and impeding personal choices in sexual partners.  If there is anywhere that personal freedom might be tested in this regard, it is California. 

And, what prohibits this as a consideration?  Even in "normal" (if there is such a thing) human sexual relationships, the issue of pain or discomfort is present--sometimes even sought. Will the deciding factor be whether the animal resists?  In that case is the act acceptable if it does not resist? 

Nevada Law analysis relies heavily on claims that animal abuse in general--and particularly involving torture--is a precursor to human violence. This link that has been found commonly in crimes by serial killers, who first practice on animals.  However, there is no concrete analysis that has produced any evidence that non-violent sexual contact with the family pet (regardless of how repugnant it is to most indviduals) is directly related to future rape or assault of humans. 

In fact, zoophilies claim the opposite--that their attraction to animals actually precludes the desire to sexually dominate or engage in sex with humans and that this is why they seek associations which provide such opportunities in secluded circumstances. 

HOW PREVALENT IS ZOOPHILIA/BESTIALITY? 

Researchers distinguish between zoophilia (a persistent sexual interest in animals) and bestiality (as sexual acts with animals), based on findings that bestiality is often not driven by a sexual preference for animals, but the physical convenience of their presence; whereas, "zoophilia" implies an emotional involvement and sexual attraction to animals--whether or not it involves any physical/sexual contact. 

Zoophilia is considered a taboo subject in modern society, writes researcher Sangeeta Singg (2017) in "Health Risks of Zoophilia/Bestiality," who found, "...the reported prevalence rates range from 8.3% to 4.9% for men and 3.6% to 1.9% for women in normal population." This is the approximate statistic quoted historically in the U.S. since the 1970's, when farm populations decreased by approximately 80 percent compared to 1940. 

While there certainly should be concern about zoonosis (transmission of diseases from animal to humans) the diseases listed are also transmissible from non-sexual contact, and there does not seem to be any specific data indicating that these pose a significant enough danger directly related to sexual acts to be prioritized by world health systems.  

There is also the risk of injury that can be caused to humans by sexual encounters with large animals. Singg's open editorial cites the “Enumclaw Horse Sex Case” which changed the bestiality laws of the State of Washington. A 45-year old aerospace engineer for Boeing died after receiving anal sex from a stallion which was videotaped by his friend. 

ARGUMENTS ABOUT THE LINK TO ADULT CRIME  

"The issue of a supposed connection between child abuse and bestiality was an issue in the media about a year ago, due to a claim of such as link, made by State Senator Nan Rich in Florida," writes researcher AMarch. 

"In attempts to link her anti-bestiality bill with the somewhat more 'popular' issue of preventing child abuse, Rich stated "there's a tremendous correlation between sexually deviant behavior and crimes against children and crimes against animals" - and this quote made it into the US and world media, spurring various reporters to contact various experts for confirmation," he states. 

"One of the researchers who is most often quoted in articles investigating this connection (or lack thereof) is Dr. Hani Miletski, who has conducted various studies on zoophilia and bestiality -- none of which reveal any particular connection between bestiality and child abuse. She has written at least one book in which this topic is investigated. 

AB 611 ATTEMPTS TO BUILD A BETTER MOUSETRAP BY ADDING COMPLEX MACHINERY 

From here on, this article offers thoughts/suggestions by law enforcement/legal experts that may persuade Assemblyman Nazarian to consider simple changes that would create a law to truly enable enforcement of bestiality prohibitions and punish those who harm voiceless beings intentionally.  

BASIC COMMENTS REGARDING AB 611: 

There are two valid reasons to enact bestiality laws: 

1. Inability of victim to consent. 

2. Injury factor – If act based upon its nature taking into account the size differential between the human and the species and the likelihood of injury to the animal; OR because of the power differential the victim is unable to adequately express or effectively accomplish resistance to avoid injury (to the animal). 

It is a valid argument that fits in with why we have laws.  Otherwise, it is merely legislating the morality of a segment of society's moral opposition -- and may not stand up in court.  

This is why it is important to be able to fall back on the criminal factors that rely on identifiable physical or credible psychological damage -- not just subjective conjecture (based on “how I feel.”) 

This Bill addresses three different areas: 

1. Expands the “mandatory reporter” section for veterinarians. Currently veterinarians must report suspected cruelty. This would expand that mandate to include simple neglect and “suspected sexual abuse.” 

2. Second thing it does is amend P.C. 597.9 to include a bestiality conviction as one that triggers a prohibition to own or possess animals for five (5) years. 

However, the change to P.C. 597.9 also deliberately creates bad grammar in three locations in the law. 

On three occasions it specifically changes the singular possession designation of “his” or “her” to “their.” It mixes singular and plural within the same sentence. 

This Bill modifies Penal Code Sec.  286.5. However, it does nothing to cure the current hurdle to prosecution -- which is that both current law and the proposed law make sex with an animal a “specific intent crime.”  

The State (prosecutor) must show that the “contact” was made specifically for the sexual arousal or gratification of the predator.  

The proposed language takes a simple, straightforward prohibition and creates a complex, lengthy discussion of what constitutes “sexual” touching. However, it is still predicated on motive. It attempts to define all of its complex terms, but in doing so, it creates unnecessary verbiage, which frequently opens the door to unanticipated loopholes. 

1. It unnecessarily expands the species that are protected, which serves no purpose.  

All of the animals with which people engage in sexual contact are protected by the current statute. The only animals that might not be protected are wild animals -- and it is unlikely that many sexual acts occur successfully and/or the perpetrator survives.  

On the extremely rare occasions when someone might attempt to have sexual contact with a wild animal, Karma pretty much takes care of it, and it is the human who suffers injuries. 

2. Sex with dead animals. 

The next expansion is to include DEAD ANIMALS. Having sex with a dead animal -- although it has been equated by some comedians as the definition of marriage -- actually results in no physical or psychological harm or suffering on the part of the animal. Its prohibition serves only moral purposes.  

3. It is ironic that this Bill focuses more on morality than preventing harm. 

Society and the courts have been moving away from legislating sexual morality and increasing the freedom of choice as long as there is no harm. 

4. Animal Sex Trade. 

This proposed law does NOTHING to impact the animal sex trade -- the commercial enterprise for financial gain the Bill apparently seeks to stop. 

In defining sexual contact, the Bill expands the specific intent of arousal or gratification, to also include the specific intent of financial gain on the part of the person having sex with the animal (but not the person providing the animal). Generally, it is the “John” who pays, not the pimp, so, as written, the only time sexual contact for “financial gain” is prosecutable is when the animal pays the human for sex. 

5. Bastardization of the existing CA law.  

Instead of rewriting P.C. 286.5, it could simply remove the specific intent language "arousal or gratification of the perpetrator" and replace it with the 3-word phrase “knowingly and willingly" commits a sexual assault on an animal. 

6. Probation against sexual assault is constitutional.In P.C. 286.5, the term "assault" has been upheld as being a constitutional prohibition, as it is in other sex crimes against humans. Any doubt about sexual assault could easily be defined. 

By keeping the focus on an 'assault,' this simple modification would adequately apply both to situations where physical harm is likely and to situations in which -- because of the differential in power -- the animal was unable to adequately resist an act to which it objected, providing the same protection that we currently do for children. 

7. The impound authority is flawed in two ways, one of which is fatal. 

The first flaw is that, as written, it must be a virtual certainty that the sexual contact has occurred before impound is authorized. Factual certainty is only determined by conviction. 

The second flaw is more serious in that it borrows provisions from P.C. 597.1 that benefit the seizing agency without bringing the one provision that protects the animal owner under the Constitution -- that is a “due process” hearing right. 

So, the impound authority in the proposed bill suffers from the same problem that made PC Sec. 597f unconstitutional in 1976. 

Disclaimer:  I have made every effort to properly decipher the information above; however, I am not an attorney. Nothing in this article should be construed as legal advice. 

If the Bill's author or any other person wishes to contact anyone who contributed their thoughts, I will be happy to relay that information. 

(If anyone is interested in the draft of the Bill, indicating proposed changes with editing remarks, please contact me through CityWatchLA.com.)

(Phyllis M. Daugherty is a former City of LA employee and a contributor to CityWatch.) Edited for CityWatch by Linda Abrams.