Due to the 2016 Supreme Court of Canada decision in R v. D.L.W. a legislative gap has opened, effectively legalizing sexual abuse of animals that falls short of penetration. The status quo risks normalizing deviant sexual behavior, decreasing animal welfare in Canada and, ultimately, increasing the sexual exploitation of vulnerable members of society, including children.
The sexual abuse of animals and its relationship to criminal law can be viewed through several lenses. One is the effect of the offending behavior on the animal and on the moral fabric of society. Another is the relationship of sexual abuse of animals to the sexual exploitation of others, including children.
Generally speaking, criminal law focuses on safety and security, the protection of property and the maintenance of social order. Animal cruelty and bestiality provisions have existed in the Criminal Code in one form or another since 1892. Initially, bestiality was referred to in the Code as "buggery with an animal". In 1955, Canada’s criminal laws were amended to introduce the word "bestiality" into the English version of the Code, though the term was not explicitly defined anywhere in the text. The bestiality provisions of 1955 specified that sex with animals was a vice that was to be criminally sanctioned.
Further revisions were made to the Criminal Code in 1989, outlawing the forcing of children to commit or watch bestiality as measures of child protection. What did not change with the 1989 amendments was the continuing absence of an explicit definition of bestiality in the Criminal Code. Instead, the courts have had to rely on the common law definition of bestiality: "sexual activity with an animal that involves penetration".
Meanwhile, social norms as to the acceptability and morality of animal abuse and sexual exploitation have changed over time, to the point where any touching of an animal for a sexual purpose is clearly recognized as deviant behaviour. At the same time, society’s understanding of animal behavior, emotion and psychology has evolved; we now know that there are psychological aspects of neglect and abuse. With these developments, Canadian society is no longer served by using the common law definition of bestiality as "buggery with an animal".
In R v. D.L.W., the Supreme Court found that penetration between a human and an animal is the essence of the offense of bestiality. The Court further found the accused "not guilty" of bestiality because he had enticed his dog to sexually assault his stepdaughter while he filmed it, but there was no penetration involved.
Since this ruling, it has become clear that, under the Criminal Code as currently worded, penetration is an essential element of the offense of bestiality. As observed in the dissent by Madame Justice R. Abella, "since penetration is physically impossible with most animals and for half the human population, requiring it as an element of the offense eliminates from censure most sexually exploitative conduct with animals". But since the majority of the Court found that this was Parliament’s intent, moving beyond the common law definition of bestiality to include all sexually exploitative conduct with an animal - would be required to fix this legislative gap.
There have already been three cases since the R. v. D.L.W. decision in which child sexual abuse and animal sexual exploitation have been allegedly perpetrated by an accused. These recent events highlight the co-occurrence of the offences, demonstrate the link between animal sexual abuse and the sexual exploitation of children, and underscore the urgency of moving forward on this issue.
Parliament should remedy the legislative gap and clarify the issues described by the majority in R. v. D.L.W. by defining the term "bestiality" to mean any contact for a sexual purpose between a person and an animal.