The offences were uncovered following posts to a public bestiality website by one of the defendants, resulting in a complaint to the police. Prior to 2008, South Australia recognised the offence of ‘buggery with an animal’, which attracted a maximum penalty of 10 years imprisonment. At that time, the only other ‘miscellaneous sexual offence’ was incest, which attracted the maximum penalty of seven years.
In 2008, the offence of buggery with an animal was amended to the present offence of bestiality. At the same time, the maximum penalty for incest was increased to match that for bestiality, and they both remain at 10 years imprisonment.
On sentence the three defendants submitted they thought bestiality was merely taboo, not a criminal act. They further submitted the animals were not physically harmed, mistreated or in any distress as a result of the behaviour, and the owner of the dogs contended they seemed to enjoy the activity. The prosecution accepted the submissions on the welfare of the animals, and the RSPCA chose not to take any action. The prosecution did not oppose the defence submissions that the appropriate penalties were convictions and good behaviour bonds.
The sentencing judge did not accept that the dogs did not experience harm or distress, and considered it outside his role to consider the appropriateness of the criminalisation of bestiality. He was affronted by the offending, calling evidence from the website ‘graphic and gross’. He proceeded to sentence on the basis that the maximum penalty indicated the seriousness of the offence, and instead imposed prison sentences.
The case raises issues of legal moralism and criminalisation in the absence of harm. Neither the SA parliament nor courts have engaged with the argument, most prominently promoted by ethicist Peter Singer, that sexual activity between animals and humans is not necessarily exploitative or abusive of the animal and not an affront to an individual’s humanity, as human beings are also animals. The comparison with the penalty for incest demonstrates the seriousness with which the parliament views bestiality. Until now, the judicial attitude to the offence was untested.
KELLIE TOOLE teaches Criminal Law, Clinical Legal Education and Evidence Law at the University of Adelaide