In February 2013, the German parliament declared bestiality a criminal offence. This was not, needless to say, a controversial ruling; indeed, laws of this kind are now the norm in most Western social democracies. What might come as more of a surprise is that, a little less than half a century ago, many of these countries were legislating in the opposite direction; archaic ‘sodomy’ laws swept away as the sexual revolution of the late ‘60s began to reach the halls of parliament.
It was not that these lawmakers considered animal welfare to be an irrelevance; indeed, cruelty to animals had been punishable in some jurisdictions since the mid-19th century. By the 1970s, most Western countries – the former West Germany included – had laws of some kind pertaining to the treatment of vertebrates. What the repeal of sodomy laws exemplified was a societal shift away from regulation of personal morality and towards something more closely resembling utilitarianism. Wanton cruelty remained proscribed, but acts of non-harmful human/animal sexual interaction were no longer considered legally punishable.
For animal rights groups, this was far from sufficient. The central problem with the status quo, they argued, was the inability of an animal to offer meaningful consent; as such, bestiality was viewed to be somewhat akin to statutory rape. Over the past few years, their arguments have been upheld in jurisdictions as diverse as Norway and the Australian Capital Territory.
This view, however, throws up something of a quandary: if animals cannot consent, how is it that sexually mature animals engage in mating behaviour with each other, or even – in admittedly rare circumstances – initiate sexual contact with humans? Furthermore, why even consider consent in this area when it is denied to animals in so many others? Animals, after all, are given no say in whether they are slaughtered for meat, tested upon, culled, euthanised or kept in captivity.
Clearly, there is a much more fundamental question at stake: what rights, if any, can human society afford creatures from other species? What should we be aspiring to?
What is clear is that discrimination on some level will always be necessary. It is probably unworkable for the act of stepping on ants to carry manslaughter charges; likewise, few would advocate allowing the needs of many to outweigh the needs of one in cases where exterminating parasites is required in order to cure human illness. These may appear to be extreme hypotheticals, but they sufficiently illustrate the point: by prioritising human lives over less complex organisms, we must concede some form of favouritism.
How far that favouritism ought to extend is another question. Until the 19th century, belief in human exceptionalism – the view that humans and the rest of the animal kingdoms existed on entirely different planes – was the scientific and cultural norm. Although folk concepts such as the human soul have ensured that that viewpoint retains some currency, developments in evolutionary biology have shown that the human species is far less distinct than we once thought it to be. This is not to say, however, that belief in human superiority is entirely unjustified – discrepancies in areas such as intelligence, competence and ability to communicate make it somewhat unavoidable.
That acknowledgement has shaped human views towards animals for as long as legal codes have existed. Where laws regarding animal welfare have existed, they have always been enacted in service of human interests. Animal cruelty laws, primarily designed to maintain a ‘civilised’ society, are no exception. So long as animals are denied a voice in how society is ordered – and, due to the rather large communication problem, it’s hard to see how this could ever not be the case – laws will always reflect human needs and desires.
That does not mean that progress in animal welfare laws won’t occur. As the science behind food production develops, meat and other animal products will become more easily simulated or replaceable. Given our modern tendency to be distressed by unnecessary suffering, it is near-inevitable that exploitative industries will be phased out. Likewise, stronger regulations may further police our own day-to-day interaction with pets and wild animals.
Some, then, may see the new wave of laws against bestiality as a step in that direction. While that’s clearly the intention of animal rights lobbyists, modest regulations regarding other aspects of animal welfare suggest that legislators may have a rather different agenda.
As Peter Singer notes in his short essay ‘Heavy Petting’, the concept of human exceptionalism still contributes significantly to views about bestiality. One need only turn the Bible – still something of an influential text, needless to say – to the Book of Deuteronomy to find provisions for dealing with such crimes. “If a man has sexual relations with an animal, he must be put to death,” a passage decrees. “And,” it goes on, “you must kill the animal”. The message is clear: this is considered to be less an act of exploitation than of indecency; the real crime being one of self-debasement. That paradigm, it seems, remains as strong as ever. For those concerned by the legal system’s encroachment into matters of personal morality, there may be cause to treat these new laws with scepticism; for those concerned with animal welfare, they may yet prove a false dawn.