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LadyEllen -> RE: Is bestiality cruelty to animals? (4/22/2010 6:49:15 AM)
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There are two questions here
1) is bestiality wrong? Which itself has a number of dimensions
2) does bestiality constitute cruelty to animals?
The notion that bestiality is wrong because the animal cannot give consent is something of a red herring in deriving an answer to the question of whether bestiality is wrong or constitutes cruelty.
It allows the possibility that if the animal gives consent then bestiality should not be wrong or constitute cruelty – and this then invites us to decide whether the animal consented or not, which we can only judge according to its behaviour; if the animal reacts according to its fight or flight instinct or otherwise, during the act or following, shows distress, then we might decide that it did not give consent, whilst if it does not so react then we might decide that it did. One might comment that this is a little late in proceedings to acquire such knowledge.
The matter of consent does not give any insight into whether bestiality is wrong or cruel, just as it gives no insight into whether killing an animal, for food or otherwise, is wrong or cruel – livestock enter the slaughterhouse on their own legs after all and by such an approach might be said to consent to slaughter and by whatever means.
Animals kept as pets or livestock are property. The law as regards property is that a man may deal with and dispose of his property as he sees fit, such that this does not adversely affect others. It is not for the law to govern what he may do with his goods. From this position it is clear that bestiality should not be wrong legally and cannot constitute cruelty, however the law has evolved from regarding animals as property alike with other types of property, recognising that animals are a type of property distinct from land or goods in that they, to variable degree according to the type of animal, are capable of experiencing a range of sensations, apprehensions, emotions and reactions as well as being affected physically as to their condition in response to their treatment and environment.
All well and good, but this is hardly enough to remove a man’s right to deal with his property as he will, whether his treatment is good, bad or indifferent, occasioning suffering or not. The missing component, related to the sentient and living nature of animals, is that which would seek to limit the right of the owner of this particular type of property to deal with it as he will. The law being strongly influenced by the majority consensus view from time to time, the law has here evolved to reflect a view that the owner of an animal has a duty of care as to the welfare of his property, and must thereby take steps to avoid unnecessary suffering, pain and distress that might be experienced by the animal, and further (and importantly) to look to, and act on its behalf in, its best interests. Clearly the animal cannot sue to enforce such a duty of care or to seek damages for breach and so the state effectively takes this role on its behalf by criminalizing the neglect and cruel treatment of animals.
This brings us back to the question of consent whereby it might be argued by a defendant that an animal consented to an act of bestiality. We can now see two problems with such an assertion; firstly that if an animal is considered unable to sue then this is because it lacks capacity to do so alike with a human similarly handicapped and like that human lacks capacity to give assent to any sort of arrangement or agreement. Secondly that in law the defence of consent is in any case strictly defined and regulated such that it is unlikely to be available in the instance of an offence of bestiality, just as it is unavailable in the instance of many offences against a human person who, capacity permitting, might have given their consent and testify as such in defence of the accused.
Bestiality then is wrong in that it is contrary to law as evolved under the influence of majority consensus opinion of what is morally wrong. It may be argued that morality is a subjective matter and that what one man finds moral another may find immoral but regardless of this, it is the majority consensus opinion which governs our public conduct whether manifested in law or not.
This does not answer the question as to whether bestiality is cruel, (but then the law in this instance does not need to). In defining what is and is not cruel, which like morality is a matter that changes from time to time in the majority consensus opinion, we must look to the intent, but more so to the effect. An act does not cease to be offensive because its effects were unintended, and neither does it likewise cease because its intent is not realised.
Referring back to the duty of care which the law imposes on the owner of an animal, it should be difficult indeed to argue that acts of bestiality in any way fulfil a man’s obligations to look to and act in the best interests of the animal. As to suffering, pain and distress, it might be argued that an animal experiences none of these where it is apparently a willing participant in the act of bestiality or appears otherwise unaffected by it, but then such instances will rarely be discovered and come before the courts.
However it is to the unnecessary character of bestiality as it relates to the risk taken as to potentially causing suffering, pain and distress by the human that we must look and there we must find the owner guilty of cruelty by his recklessness even where the animal appears willing or unaffected and even where his intent is unclear, because he was aware of but disregarding as to the possible consequences to the animal.
Bestiality must therefore be deemed to constitute cruelty, regardless of the effects on the animal, and is deemed wrong according to law.
E
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