Are Bestiality Laws Justifiable? Some Constitutional Analysis

Eugene Kontorovich at the Volokh Conspiracy: The Bestiality Brief
“The man-bites-dog story of Germany legalizing then banning bestiality raises the question of the constitutionality of such laws in the U.S. Most states criminalize zoophilia, and in many places the bans have been enacted quite recently. Moreover, the laws are from time to time enforced. The 14th Amendment has been interpreted to recognize a broad and very valuable liberty interest in sexual autonomy.” . . . After the sex toy cases, why not go whole hog and extend the protection of idiosyncratic autoerotic conduct to zoophilia?

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Haynes, Antonio M. , ‘Dog on Man’: Are Bestiality Laws Justifiable? (December 5, 2012). Available at SSRN: http://ssrn.com/abstract=2185469

This essay examines the typical arguments deployed to support prohibitions against bestiality. Though the standard arguments are superficially appealing, upon closer inspection, the standard justifications break down, primarily because of what might be called irrational inconsistency. Part I explores the arguments related to consent. Part II explores the argument that bestiality wrongly uses animals as means. Part III examines the “public-health” arguments. Part IV assumes that some humans have a zoophilic sexual orientation, and assesses the general inclination to analogize zoophilia to pedophilia, rather than to homosexuality.

Part V offers a potentially new rationale for justifying bestiality prohibitions. This approach, borrowed from the literature regarding sexual activity among the mentally retarded, eschews a categorical ban on bestiality, and instead advocates a contextual approach grounded in assessing the level of apparent coercion. This approach would not only serve to rationalize bestiality prohibitions, but in the future might serve to bring more coherence to all laws regulating sexuality.