Sex Acts With An Animal May Accidentally Be Legal In Canada

They’ve been repealed for decades, but Canada’s anti-sodomy laws have come back to throw an unexpected twist into a case headed to the Supreme Court. Warning: Some content NSFW.

Some sexual acts with animals may be legal in Canada, thanks to the poor wording of laws originally meant to outlaw gay sex.

Chris Wattie / Reuters

Bestiality is against the law in Canada, but the term is not defined in the Criminal Code.

Because of this, a British Columbia man appealed his conviction of bestiality to the Supreme Court of British Columbia in 2013. His argument rested on the historic link between bestiality and "buggery," the old legal term used to outlaw anal sex.

He won.

It's a disturbing case. The man sexually assaulted his two teenaged step-daughters over a period of 10 years. One of the step-daughters would later describe four incidents where the man coerced her to perform sexual acts with the family dog. Picture and video evidence backed up that the man had his step-daughter spread peanut butter over her genitals so that the dog would lick it off.

The man, who cannot be identified to protect the identity of the victims, was convicted of 14 counts of sexual offences and sentenced to 18 years imprisonment. Two of those counts were for compelling his step-daughter to commit bestiality.

He appealed those two convictions. The B.C. Court of Appeal concluded that bestiality, in essence, meant "buggery with an animal." In other words, it required penetration. Having a dog lick a woman's genitals does not qualify because there is no penetration, the court ruled.

To many people, this would sound absurd. How could coercing your step-daughter to commit an explicitly sexual act with an animal be legal?

That's what the government is now arguing to the Supreme Court of Canada in the case, Her Majesty the Queen vs. D.L.W.

The Crown is asking the top court to overturn the ruling because such a narrow definition of bestiality leads to "absurd results."

The defence argues that bestiality always meant penetration, and if Parliament wants to outlaw other acts they'll have to create a new law.

To understand the situation today, it's best to look at how we got here.

Pre-Canada days: the church

Reuters

This goes back to the Church of England's views on abnormal sexual behaviour. Men were supposed to ejaculate in a woman's vagina and hope they got pregnant. The human anus or an animal were seen as unnatural receptacles for sperm.

The British created one term — "buggery" — to refer interchangeably to anal sex or sex with an animal. The terms bestiality and sodomy are used to specify which is in question.

(Conveniently for male lawmakers, oral sex was still deemed legal in an 1817 ruling.)

1869

Canada created its own law banning "buggery, either with a human being or with any other living creature."

1954

As the Criminal Code was reformed, bestiality was added for the first time but was still tied to buggery.

It stated: "Every one who commits buggery or bestiality is guilty of an indictable offence and is liable to imprisonment for fourteen years."

1985

Politicians realized the criminal code is badly out of date and made reforms. The offences of rape, attempted rape and sexual intercourse with the feebleminded were folded into the new crime of sexual assault.

Bestiality also became its own offence for the first time. But it was not given any new language that explicitly expanded its scope.

Chris Wattie / Reuters

Modern day

The defence's case is that history is clear — bestiality always required penetration, and despite reforming the law twice Parliament never expanded it to refer to other acts.

The Crown interprets the history differently. But mostly government lawyers are arguing that courts need to take a modern perception of these crimes.

"Common sense suggests that the (man)'s conduct in encouraging and facilitating his vulnerable young stepdaughter to have oral sex with the family dog is on an equal moral plane as if he had arranged for her to have penetrative sex with the family dog. Surely both activities are abhorrent to society's fundamental values," the Crown argues in its submission to the Supreme Court.

What about the animals?

The British Columbia Court of Appeal ruled that the protection of animals does is not a factor in this case.

Because of this, the group Animal Justice has stepped in as an intervenor.

They argue that the definition of the crime must take into account the values of protecting vulnerable animals and the wrongfulness of sexual conduct with a participant that is not able to consent.

What's next?

The Crown, the defence, and Animal Justice will all argue their cases in front of the Supreme Court next Monday. A decision will likely come later.

If the defence wins, any non-penetrative sexual acts with animals will be legal in Canada. New Prime Minister Justin Trudeau would then be stuck with the unexpected task of passing new bestiality laws — quickly.