Bestiality! Loophole Closing Finally Here- But Is It Enough?
N.B. This blog contains descriptions of criminality involving sexual and abusive acts
In a previous blawg that I wrote,<1> I discussed the need for legislative changes to Canada’s Criminal Code in order to change provisions related to bestiality. Significant discussion about bestiality emerged in 2016 after the case of R v DLW<2> was released and the Supreme Court of Canada (SCC) decided that s. 160, The Criminal Code provision about bestiality, does not prohibit non-penetrative sexual acts with animals. The decision allowed for a man to be acquitted of various serious sexual offences against his two step daughters that took place over ten years.
Personally, I found this decision to be very concerning because the morally right decision would have been to convict the man for his egregious actions. It also seemed clear that there was seriously inappropriate conduct from the step father because he used peanut butter to allow his dog to lick his step daughter’s vagina.
Despite the fact that the dog’s licking was not penetrative, there was inappropriate conduct with an animal for a sexual purpose. Evidence was not an issue in the case, but the wording of the Criminal Code was the barrier to obtaining a conviction. The majority of the SCC was restricted to interpreting the legislation given the way it is currently worded, and could not apply a definition of bestiality that did not exist in common or statute law. That being said, I firmly agree with Justice Abella in her dissenting opinion when she stated, “Acts with animals that have a a sexual purpose are inherently exploitative whether or not penetration occurs”. This means that legislative reform is the necessary element required to prevent future acquittals like the one in DLW from happening again.
While it has been known for a long time that Canada’s legislative provisions related to bestiality are insufficient and outdated, there have been no legislative changes to bestiality laws since 1988. Since the 1980s, there have been significant shifts in discourse surrounding topics such as consent and what constitutes sex (see Jochelson and Gacek 2018).
When the 1988 legislative amendments were made to bestiality provisions, it seemed to be the case that social norms dictated that sexual acts had to be penetrative. Currently, I think that the majority of the Canadian public would agree that not all sexual acts have to be penetrative. Unfortunately, the narrow interpretation of what constitutes a sexual act and the lack of a clear definition of bestiality prevents what I think is the public opinion that bestiality should include penetrative acts, in legislation. This means that legislators have the unique ability to reflect the public’s perspectives on sexual acts and how they should be defined in legislated provisions on topics such as bestiality.
Last year, Conservative Member of Parliament Michelle Rempel introduced Bill C-388, An Act to Amend the Criminal Code (Bestiality)<3> to amend The Criminal Code in order to help expand the definition of bestiality under s. 160. The proposed legislation would have defined bestiality, which is not defined in the Code as, “any contact by a person, for a sexual purpose, with an animal”. While this definition of bestiality is somewhat helpful in clarifying what it is, it does not specifically address penetrative acts. This leads me to think that if this provision would have been added to s. 160 at the time that the Supreme Court of Canada heard R v DLW, its decision may not have changed. I do not think that the court would have been comfortable enough with applying its own definition of bestiality with a slightly more descriptive legislative provision. Rempel’s bill is at the same stage of legislative proceedings as I described in my last blawg. It has been introduced in the House, but will most likely fail to proceed through the legislative process because the federal Liberal Party, which is the governing party, introduced its own legislation to amend s. 160 of the Code.
On October 18, 2018, Minister of Justice and Attorney General Jody Wilson-Raybould introduced Bill C-84 An Act to Amend the Criminal Code (Bestiality and Animal Fighting) in the House of Commons.<4> The legislation focuses more on amending sections 445 and 447 of The Criminal Code, which relate to animal fighting. The only part of Bill C-84 that relates to bestiality is that it adds a subsection (4) to s. 160 and states that, “in this section, bestiality means any contact, for a sexual purpose, with an animal”.<5> The wording of the legislation is almost identical to what Michelle Rempel had suggested in Bill C-388 and would have the same effect. The same concern with a lack of a definition of bestiality that includes penetrative acts that I identified after DLW was decided could possibly continue to exist.
The lack of an explanation as to what constitutes “contact” is the major concern with the wording of the proposed legislation. While penetration clearly seems to be a form of contact, a court would have to make the clear determination that this is the case. Further, how broadly could contact be interpreted? This raises the same issues within DLW as to whether courts should be allowed to define, or read in, definitions of terms in legislation. Courts have to be very careful when working with or defining terms in legislation because it is important for the judicial and legislative branches of government to remain independent. The difference between the current legislation and the proposed amendment is that courts will be able to use statutory interpretation to logically conclude that penetration, direct or indirect forms of touching are forms of contact. This should be a much easier determination to make than in cases relying on the previous common law interpretations. While it seems that the bestiality loophole has been closed, a court would likely have to specifically make a ruling in a bestiality case to confirm that penetration is a form of contact under the legislation. This would require for Bill C-84 to go through the legislative process, achieve Royal Assent, and for a case to be decided on s. 160. It would likely take years for these steps to take place.
According to a Government of Canada announcement, the proposed legislative provisions within Bill C-84 would “add a definition of bestiality to clarify that it involves any contact for a sexual purpose between a person and an animal”.<6> Even this clarification fails to directly address DLW and whether penetration is a form of contract. If the federal government, and specifically Minister Wilson-Raybould, wanted for it to be clear that penetration is a form of contact, this should have been included within the legislative amendment in Bill C-84. It is unclear as to why the government would not include this explanation. Given the seriousness of the issue of bestiality, I think that governments should use specifics in its legislation in order to adequately define terms and avoid any doubt as to whether penetrative acts constitute contact. In any case, the Bill also is unclear about whether indirect contact would suffice.
Overall, while I think that the federal government’s introduction of Bill C-84 is an adequate means of closing the bestiality loophole, a number of steps have yet to be taken. Firstly, Bill C-84 needs to proceed through the legislative process and come into force and effect, which can take several months. Secondly, the interpretive wok of the courts will need to be undertaken. I look forward to these steps in order to protect future victims of bestiality and to hold offenders to account.
1 Kasia Kieloch, “Bestiality! Loophole Closing Long Overdue” (22 May 2018), online: <https://www.robsoncrim.com/single-post/2018/05/22/Bestiality-Loophole-Closing-Long-Overdue>.