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Kenya Law / Blog / Case Summary: Penetration is a Mandatory Requirement for the Offence of Bestiality to be Established.

Penetration is a Mandatory Requirement for the Offence of Bestiality to be Established.

Penetration is a Mandatory Requirement for the Offence of Bestiality to be Established.

Her Majesty the Queen v D.L.W. & another

Supreme Court of Canada

2016 SCC 22

McLachlin C.J, Abella J, Cromwell J, Moldaver J, Karakatsanis J, Côté J and J.Brown J.

June 9, 2016

Reported by Linda Awuor & Kakai Toili

Download the Decision

Statutes – interpretation of statutes – Criminal Code, 1985(Canada) – section 160 (3) – meaning of the word “bestiality” – the legal meaning of bestiality – whether the Canadian Parliament intended to depart from the legal meaning of bestiality when it used the word without further definition – whether the Canadian Parliament intended bestiality to occur once penetration was established between an animal and a human – Interpretation Act, 1985 (Canada), sections 45 (2) and (3)

Criminal law – offences against morality – unnatural offences –bestiality – elements of bestiality – penetration – whether penetration is an essential element of bestiality.

Brief Facts

The Appeal related solely to the Respondent’s conviction for a single count of bestiality. That conviction had been entered after a 38-day trial, at which the Respondent had also been convicted of numerous other sexual offences against his two stepdaughters committed over the course of 10 years. The Respondent began sexually fondling his step daughters by the age of 12 and, by the time they turned 14, he had been forcing them to engage in oral sex and sexual intercourse and encouraged them to perform sex acts with each other. The Respondent had first brought the family dog into the bedroom with the Complainant when she was 15 or 16 years old. He attempted to make the dog have intercourse with her and, when that failed, he spread peanut butter on her vagina and took photographs while the dog licked it off. He later asked her to do it again so that he could make a video.

The Respondent had been sentenced to a total of 16 years imprisonment. For the bestiality conviction in relation to the older complainant, he had received a sentence of two years which was to run consecutively to sentences totaling 14 years imposed in relation to the other offences. The Respondent appealed to the Court of Appeal and was acquitted of the bestiality count, and hence the Appellant appealed to the Supreme Court.

Issues

(i)Whether penetration was an essential element of the offence of bestiality.

(ii)Whether the term bestiality had a well-understood legal meaning in the common law

(iii)Whether parliament intended to depart from the legal meaning of bestiality when it used the word without further definition in the English version of the Code.

Relevant provisions of law

Criminal Code, 1953-54(Canada)

Section 147 – Buggery or bestiality

Everyone who commits buggery or bestiality is guilty of an indictable offence and is liable to imprisonment for fourteen years.

Criminal Code, 1985(Canada) as amended on July 23rd, 2015

Section 160 – Bestiality

Section 160 (3) – Bestiality in presence of or by child

Despite subsection (1), every person who commits bestiality in the presence of a person under the age of 16 years, or who incites a person under the age of 16 years to commit bestiality,

(a)is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b)is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Interpretation Act, 1985 (Canada)

Section 45 (2) – Amendment does not imply change in law

The amendment of an enactment shall not be deemed to be or to involve a declaration that the law under that enactment was or was considered by Parliament or other body or person by whom the enactment was enacted to have been different from the law as it is under the enactment as amended.

Section 45 (3) – Repeal does not declare previous law

The repeal or amendment of an enactment in whole or in part shall not be deemed to be or to involve any declaration as to the previous state of the law.

Held by majority of the Court (with Abella J dissenting):

  1. Criminal offences in Canada since 1955 had been entirely statutory with the exception of criminal contempt. However, the common law continued to play an important role in defining criminal conduct. Defining the elements of statutory offences often required reference to common law concepts.
  2. A number of principles guided statutory interpretation, the three most important were the following: first, when the Canadian Parliament used a legal term with a well-understood legal meaning, it was presumed that parliament intended to incorporate that legal meaning into the statute. Second, any departure from that legal meaning must have been clear, either by express language or necessary implication from the statute. Finally, apart from criminal contempt, there could be no liability for common law crimes. Creating and defining crimes was for parliament, the courts must have not expanded the scope of criminal liability beyond that established by parliament.
  3. The term bestiality had a well-established legal meaning and referred to sexual intercourse between a human and an animal. Penetration had always been understood to be an essential element of bestiality. The Canadian Parliament adopted that term without adding a definition of it and the legislative history and evolution of the relevant provisions showed no intent to depart from the well-understood legal meaning of the term.
  4. Courts should not have by development of the common law broadened the scope of liability for the offence as the Trial judge did. Any expansion of criminal liability for the offence was within the Canadian Parliament’s exclusive domain.
  5. When the Canadian Parliament used a term with a legal meaning, it intended the term to be given that meaning. Words that had a well-understood legal meaning when used in a statute should have been given that meaning unless parliament clearly indicated otherwise.
  6. There was the related principle of stability in the law. Absent clear legislative intention to the contrary, a statute should not have been interpreted as substantially changing the law, including the common law. That principle, if it had been applied too strictly, may have led to refusal to give effect to intended legislative change. But it nonetheless reflected the common sense idea that parliament was deemed to know the existing law and was unlikely to have intended any significant changes to it unless that intention was made clear.
  7. The principle of stability in the law was reflected in section 45(2) and 45(3) of the Canadian Interpretation Act R.S.C. 1985, which provided that the amendment of an enactment did not imply any change in the law and that the repeal of an enactment did not make any statement about the previous state of the law.
  8. There could be no serious dispute that the offence of buggery with an animal/la bestialité in the Canadian Criminal Code, 1892 which continued to be in force until the 1955 revisions, had a widely and generally understood meaning: the offence required sexual penetration between a human and an animal. It was also clear that the term bestiality was understood to mean sodomy or buggery with an animal.
  9. There was no express statutory provision that expanded the scope of the bestiality offence and there was nothing in the legislative evolution and history that supported any parliamentary intent to bring about such a change by implication. The required clarity and certainty were entirely lacking.
  10. Courts would only conclude that a new crime had been created if the words used to do so were certain and definitive. That approach not only reflected the appropriate respective roles of parliament and the courts, but the fundamental requirement of the criminal law that people must have known what constituted punishable conduct and what did not, especially when their liberty was at stake.
  11. In the absence of clear parliamentary intent to depart from the clear legal definition of the elements of the offence, it was manifestly not the role of the courts to expand that definition. If parliament had intended the significant change in the law, it would surely have been noticed either in parliamentary debates or by commentators.
  12. There was no evidence that any substantive change had been intended. The fact that no substantive change had occurred in the French version of the offence led to the conclusion almost inevitably that the change in terminology in the English version was simply intended to give the offence a clearer, more modern wording which would have been more consistent with the French equivalent. The 1955 revisions to the Code did not expand the elements of the bestiality offence and penetration between a human and an animal was the essence of the offence.
  13. The fact that Parliament made no change to the definition of bestiality in the midst of the comprehensive revision of the sexual offences supported the conclusion that it intended to retain its well-understood legal meaning.
  14. It defied logic to think that parliament would have renamed, redefined and created new sexual offences in a virtually complete overhaul of the provisions in 1983 and 1988 and yet would have continued to use an ancient legal term with a well-understood meaning ,bestiality, without further definition in order to have brought about a substantive difference in the law. The bestiality offences added in the 1988 revisions, while not having changed the definition of the underlying offence, added protections for children in relation to that offence. There was nothing inconsistent with the purpose of the provisions in the conclusion that the elements of bestiality remained unchanged. There was no hint in any of the parliamentary record that any substantive change to the elements of the offence of bestiality was intended.

Abella J dissenting:

  1. By 1988, parliament had intended or at the very least had assumed, that penetration was irrelevant. That was a deduction easily justified by the language, history, and evolving social landscape of the bestiality provision. It was hard to attribute to parliament the inconsistent purpose that animal cruelty protection in the Code would have covered all birds and animals but the sexual conduct with animals provision, bestiality, would have been limited to those animals whose anatomy permitted penetration. Continued imposition of the penetrative component of buggery on bestiality technically left as perfectly legal all sexually exploitative acts with animals that did not involve penetration. That in turn completely undermined the concurrent legislative protections from cruelty and abuse for animals.
  2. If the elements of bestiality and buggery had been the same, the addition of bestiality to the language of section 147 of the Canadian Criminal Code 1953-54, on buggery or bestiality, would have been redundant and there would be no need to change the provision from one prohibiting buggery, as it had for hundreds of years, to one having prohibited buggery and bestiality. No legislative provision should have been interpreted to render it mere surplusage. The addition of the offence of bestiality, therefore, must have been intended to mean something different from buggery.
  3. Section 160(3) ,of the Canadian Criminal Code 1985, on bestiality in the presence of a child was inarguably a reflection of parliament’s purpose to have protected children from having witnessed, or having being compelled to commit bestiality. If all parliament had intended was that children be protected from seeing or being made to engage in acts of penetration with animals, one could have reasonably wondered what the point was of such an unduly restricted preoccupation. Since it was a well-established principle of statutory interpretation that the legislature did not intend to produce absurd consequences, what parliament must have intended was protection for children from having to witness or being forced to participate in any sexual activity with animals.
  4. Parliament’s goal of having to protect children from sexual conduct with animals in the new bestiality provision could have also been inferred from the other changes to the Code in the 1988 Amendments. Parliament introduced the offences of sexual interference, sexual exploitation, and invitation to sexual touching, all of which protected minors and none which required penetration. It would have been anomalous if no penetration was required for these offences, which focused on protecting children from sexual exploitation generally, but remained an essential element of section 160(3) of the Canadian Criminal Code 1985, on bestiality in the presence of a child, which protected children from sexual exploitation with animals
  5. Absence of a requirement of penetration was not a broadening of the scope of bestiality. It was more as a reflection of parliament’s common sense assumption that since penetration was physically impossible with most animals and for half the population, requiring it as an element of the offence eliminated from censure most sexually exploitative conduct with animals. Acts with animals that had a sexual purpose were inherently exploitative whether or not penetration occurred, and the prevention of sexual exploitation was what the 1988 Amendments to the Canadian Criminal Code were all about.

Appeal dismissed

Relevance to the Kenyan Situation:

Bestiality under the Kenyan law is provided for in the Penal Code under sections 162 (b) and 163. Section 162 (b) of the aforementioned statute provides that any person who has carnal knowledge of an animal, is guilty of a felony and is liable to imprisonment for fourteen years. Section 163 provides that any person who attempts to commit any of the offences specified in section 162 is guilty of a felony and is liable to imprisonment for seven years. However the Penal Code does not define the term bestiality.

Courts in Kenya have handled various cases dealing with bestiality and have taken the approach that there must be penetration for the offence of bestiality to be established. In Stephen Muthee Wakuthiye v Republic, Criminal Appeal No. 21 of 2013, the High Court upheld the Trial Magistrate’s decision of finding the Appellant guilty of the offense of bestiality. The Appellant’s clothing and identity card had been found next to the cow and he had cow dung on his genitals also the cow had a red swollen vulva with bruises, the High Court held that to be sufficient circumstantial evidence for the offence of bestiality.

This case is relevant in the Kenyan context since it brings out the need for the Kenyan parliament to define key legal terms used in the statutes they enact. As the law stands now Kenyan courts would not find one guilty of bestiality should they be found to perform such similar sexual acts with animals as long as there’s no penetration.

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