Wednesday, September 17, 2014

The Meaning of "Harmless" in Describing Sexual Offenses

by Sherry F. Colb

In my column for this week, I take up the issue of whether prohibitions against incestuous marriage are distinguishable from prohibitions against same sex marriage (SSM).  The reason to discuss this issue is that various opponents of SSM (and of same-sex consensual sexual relationships more generally) have sometimes invoked prohibitions against incest in defense of their position. They say something like this:  "people seem to be okay with incest laws, so why do they suddenly become offended by laws against same-sex relationships, which stem from the same moral foundation?"  I propose in my column that there is at least one  important distinction between anti-incest laws and anti-gay laws that make the latter far more suspect and objectionable than the former. Nonetheless, I do not conclude that bans against incest or incestuous marriage (for consenting adults) are therefore legitimate, only that they are not as bad as SSM bans.  One reason to draw distinctions like this is that Justice Scalia famously lumped many different sorts of state laws against sexual behavior (including adult incest and homosexuality) into one category and implied that such laws are all of a piece.

One problem with Justice Scalia's category is that some of the laws in it inflict greater harm on their targets than others do.  I argue in my column that laws prohibiting same sex marriage (and same sex sexual activity more generally) fall into the "more harmful" category, while laws prohibiting incest (or incestuous marriage) fall into the "less harmful" category.  In this post, I want to focus on a different problem with the argument implicit in Justice Scalia's list and in some other writings I have recently encountered on the issue of sexual liberty.  Here is Justice Scalia's claim, in Lawrence v. Texas:  "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision [invalidating the Texas law criminalizing same-sex sodomy]."

In reading the different items on the list, the inference I draw is that Justice Scalia is identifying what he regards as laws that are (in his view) legitimate but that do not conform with the "harm principle." The harm principle holds that the law may only legitimately limit individual liberty to do as one pleases when one's chosen actions would inflict harm on others.  I understand the quotation in this way in part because Justice Scalia makes a point of qualifying his reference to incest by saying "adult incest."  Presumably, then, Justice Scalia is of the view that the Supreme Court's decision in Lawrence does not call into question prohibitions against incest that victimizes children, and that is because such prohibitions target behavior that harms others.  For the same reason, presumably, Justice Scalia does not place rape prohibitions on the list of newly vulnerable state enactments.

There is at least one item on Justice Scalia's list, however, that I would argue is "not like the others."  That item is bestiality. Bestiality is human sexual activity that involves a nonhuman animal.  There are at least two ways in which one might be inclined to characterize such behavior as harmless (and therefore as falling into Justice Scalia's category of properly decriminalized behavior after Lawrence).

The first approach is what may drive Justice Scalia's classification of bestiality:  because sexual conduct by humans that involves nonhuman animals inflicts no harm on other humans, it follows that it is harmless,  On this view, so long as no human is experiencing pain, suffering or death, the activity is harmless (and thus must find justification in some moral principle other than the harm principle). When the victim is a nonhuman animal, then, there is no victim at all.

This view strikes me as having very little to recommend it.  Hurting "others" ought logically to extend to hurting anyone who can actually experience being hurt.  That is presumably why, despite the fact that fetuses are not regarded as persons for Fourteenth Amendment purposes, no one has criticized laws banning "partial-birth abortions" as aimed at "harmless," "victimless," or "innocuous" conduct in the way that, one would probably criticize, say, Justice Scalia's listed state law prohibiting masturbation.  If a law criminalizes actions that inflict harm on a nonhuman animal, then the law can properly be justified as consistent with the same harm principle that we would use to test a criminal law prohibiting murder, aggravated assault, or rape.  To suggest otherwise is to claim that one can only cause "harm" to other humans.

A second way of defending the classification of bestiality as a "victimless" or "harmless" crime is more sophisticated than the first.  It posits that one could come up with particular examples of human sexual behavior involving nonhuman animals in which the human arguably does not inflict harm on the nonhuman animal. One such example might be where the nonhuman animal initiates the sexual interaction, and the human uses no force on the animal.  Because such interactions are possible and may occur sometimes, it follows -- by this logic -- that laws against bestiality are illegitimate, since one could capture the narrower category of "harmful" bestiality by prohibiting that directly rather than by placing the entire category of behavior off limits.

Attorney Antonio Haynes (who is my former student) makes a subtle, scholarly, and sophisticated version of the argument I have just described in a forthcoming law review article.

There is  insufficient space in a blog post to do justice to his article (which also makes other points about bestiality), but notwithstanding my admiration for the care and craft that the article displays, I do want to register skepticism about the bottom line that Haynes reaches.  

To my mind, real-life sexual interactions between humans and nonhumans are generally of the "harmful" sort, and the few "consensual" human-nonhuman sexual interactions that might in theory occur are themselves highly suspect, and thus properly stigmatized as well.

In the European countries where bestiality is legal, the enormous downside of such decriminalization is clear: animal brothels or "erotic zoos" exist, and so do the disturbing and sad photographs of victimized animals on the internet.  Though a country like Denmark technically permits only bestiality that does not result in animal suffering, the photographs that I can never hope to un-see evidence unwanted and forced sexual attacks that plainly caused pain and suffering and should properly be characterized as the rape of the animals involved (dogs and nonhuman primates, in particular).  To allow bestiality is, predictably, to disinhibit those who are inclined to commit sexual violence against animals, and it is difficult to imagine how a brothel in which an animal is held captive could be a place that protects against the "harmful" kind of bestiality.

But what about those individual cases in which the nonhuman animal initiated sexual contact and "wanted" a sexual relationship with a human?  I have to say first that I am extremely skeptical of people who claim that a nonhuman animal "wanted" to have sex with a human.  Having interviewed recidivist child molester Leroy Hendricks about his own history of offending, I can attest to the self-delusion of which sexual predators are amply capable in assessing their sexual "relationships" with their targets.  Hendricks told me, for example, that unlike another man who was in the "sexually violent predator" program in Larned, Kansas (a man Hendricks pointed out to me), he (Hendricks) never raped a child.

To be sure, unlike human children, adult nonhuman animals are understood to be capable of engaging in consensual sexual relations.  That is in fact how sexual reproduction occurs among nonhuman animals (at least those living outside of human captivity).  But this fact seems to me largely irrelevant to bestiality. 

Humans do not ordinarily regulate  sexual relationships between nonhuman animals who live outside of our farms, zoos, and other captive environments.  This is not because we believe that the relationships are all consensual (some animals, in fact, engage in forced copulation) but because we see no beneficial role for human laws in trying to help wild animals avoid unwanted sexual interactions with other wild animals.  Our intervention, in other words, would likely make animals' lives far worse than they are, so we treat at least those animals we do not "own" as separate sovereigns (until we wish to kill them, that is). By contrast, we do have an interest in intervening in sexual relationships between humans and nonhumans, since we know that a great proportion of these "relationships" are violent and harmful, and we have no biological reason to think that any are essential to the happiness of other animals.

Stated differently, there may be humans who feel that they can experience sexual fulfillment with other animals, but it is no more the job of nonhuman animals to fulfill the sexual needs of human adults than it is the job of human children to do so.  And to the extent that we worry that we are "depriving" nonhuman animals of desired relations with humans, we have little evidence for that worry.  Animals living their lives freely, outside of human captivity, rarely approach humans for sexual liaisons, at least so far as I am aware.  

To decriminalize bestiality is thus to provide assistance to those humans who wish to have sex with other animals; it does nothing for animals, and it exposes them to significant harm. And for the unusual cases in which the animal seems "interested," an analogy is worth considering.  When a human prisoner appears to a prison guard to be "consenting" to having sex with the guard, we have good reason to be suspicious of the consent and to treat as categorically non-consensual any such sexual relations.  The same holds true for "relations" between a human and a nonhuman animal over whom the human has sufficient control to be touching him or her sexually.

At this point, I think it important to note (as Haynes does, albeit for a different reason) that the harms involved in bestiality are very much like the harms involved in "raising" animals for food (and thus in consuming the animal products "raised" for such use).  In both cases, humans seek some kind of pleasure (culinary or sexual).  In both cases, the kind of pleasure in question is in general an important part of human flourishing, i.e., to be able to eat food and to be able to express oneself sexually. Nonetheless, one can eat healthfully and even decadently without demanding that animals be bred into existence, subjected to mutilations, and ultimately slaughtered -- as all animals in the flesh, dairy, and egg industries are.  And one can likewise express oneself sexually without involving a vulnerable captive animal who one may have a vested interest in believing reciprocates the human's desire.

Beyond these significant commonalities, in which both animal product consumption and bestiality inflict harm on nonhuman animals to serve human interests that could be served in other ways that do not involve cruelty to animals, there are other parallels too. In animal agriculture on land, breeding commonly takes place through what is euphemistically called "artificial insemination" but which in fact involves humans stimulating the breeding male to ejaculate and humans shoving their hands and/or tools into the anuses and vaginas of female animals.  This is what one pays for when one purchases dairy, eggs, and flesh foods, and it looks a lot like bestiality of the forcible sort.

In short, there are important differences between the legal prohibitions that  Justice Scalia places in the "parade of horribles" list in his  Lawrence dissent.  Bestiality, unlike other behaviors on the list, is almost always harmful, and if one understands what makes it harmful, one can easily see that consuming the "food" created through animal exploitation and slaughter is no more victimless than bestiality.