From the moment of statehood, in 1821, until the middle of the 20th century, Maine law forbade what was to the legal profession and in popular parlance referred to as “Among Christians a Crime Not to be Named.” From materials in the Maine State archives, it is clear that until roughly the middle of the 19th century a few individuals were actually prosecuted for the unmentionable offence of bestiality in Maine and that, if convicted, they were liable to be sentenced to serve 10 years at hard labor.

Why in our distant and forgotten past the criminal justice system penalized convicted bestialists so severely is an interesting question. It no doubt requires a complex answer, the key part of which is perhaps that sexual relations between humans and other animals at one time widely offended Judaeo-Christian sensibilities about the boundaries of rightful conduct. Legal, religious and public opinion condemned bestiality so harshly because passages in Leviticus, Exodus and Deuteronomy commanded God-fearing folk to view bestiality as among the most evil of all crimes. Specifically, it was held to be a hideous rupture of the divine order of Creation, which occasionally produces monstrous offspring, and which thwarts and makes a mockery of the preeminently reproductive ends of (hetero-)sexual intercourse.

However, especially since the end of World War II, social attitudes toward bestiality have, in some respects, undergone a fundamental revolution. Though the effective decriminalization of bestiality in Maine was never very carefully thought out – much less debated in public- it was one among several categories of nonreproductive sexual practices towards which society in general has tended to exercise a growing tolerance. Indeed, in the last 50 or so years, those offenders whose bestiality has been reported to authorities have faced considerably lesser charges – for example, breach of the peace or offence against public order. Instead of criminal prosecution, offenders have typically been sent for counseling or to a psychiatrist for treatment of a mental illness or, with probably greatest effect, have been subject to public ridicule in their local communities.

How quickly the times change! Now Maine, like 24 states already have done and six others are proposing to do, is considering whether to (re-)criminalize bestiality. Last week the Legislature’s Criminal Justice Committee heard testimony on LD 1283, sponsored by Sen. Lloyd LaFountain of York. The bill would make bestiality either a Class C or a Class B crime – which class would depend on whether the act was committed in the presence of a minor. Additionally, the bill identifies several possible penalties, including mandatory psychological evaluation and counseling at the offender’s expense, a fine up to $10,000, prohibition from places or activities involving animals, and imprison-ment to a maximum of 10 years.

At the public hearings last week, the committee received support from several groups and individuals, including concerned citizens, prosecutors, licensed social workers, animal control officers and a college professor.

It is fair to say that testimony in favor of criminalization overwhelmingly focused on two arguments – that bestiality is a form of animal cruelty in and of itself and that it is a form of violence linked to other forms of violence, particularly in the family.

The proposed bill had only two opponents who testified at the public hearing. One was a representative from the Maine Civil Liberties’ Union. She opposed the bill on the grounds that Maine prisons were already full enough. The other was a well-known male, age 44, from Parkman, who regards his dog Lady as his spouse and who has been candid about his sexual orientation. In his testimony this self-proclaimed “zoo” – or “zoophile” – positioned himself as a victim of a Maine citizenry that is uneducated, backward, untruthful and, at root, prejudiced against his sexual orientation to animals. There is nothing unnatural or wrong about humans having sex with animals, he proclaimed, because it involves no cruelty, it has been practiced for millennia, because animals are beloved family members and because, in his own case, he is quite certain that his dog assents to having sex with him and that she enjoys it as much as he does.

I am firmly convinced that bestiality is a violation of the rights and the integrity of nonhuman animals.

Whether bestiality should be lawful or not surely hinges on the answer to one overriding question: is it consensual behavior or does it involve coercion? Sexual coercion occurs whenever one party does not genuinely consent to sexual relations or does not have the ability to communicate consent to the other. For genuine consent to sexual relations to be present, both participants must be conscious, fully informed and positive in their desires.

If genuine consent – defined in this way – is necessary to avoid a relationship of coercion between one human and another, then there is no good reason to suppose that it may be dispensed with in the case of sex between humans and other sentient animals. Bestiality involves sexual coercion because animals are incapable of genuinely saying “yes” or “no” to humans in forms that we can readily understand. A different way of putting this is to suggest that, if it is true that we can never know what it is like to be a nonhuman animal, then presumably we will never know if animals are able to assent – in their terms – to human suggestions for sexual intimacy.

Like infants, young children and some others, animals are beings without an effective voice. Some animals are not equipped to resist human sexual advances in any meaningful way, owing to their docile and often human-bred natures.

Other animals, in trying to resist human sexual advances, can certainly scratch, bite, growl, howl, hiss and otherwise communicate protest about unwanted advances, but in most situations animals are incapable of enforcing their will to resist sexual assault, especially when a human is determined to effect his purpose. Moreover, animals are disadvantaged in yet another way, for when they are subjected to sexual coercion and to sexual assault, it is impossible for them to communicate the facts of their abuse to those who might give them aid.

In short, because bestiality is, in certain key respects, so similar to the sexual assault of women, children and infants, it should be named “animal sexual assault,” condemned as such, and should be made unlawful. In the current climate, I see no acceptable or realistic alternative to the criminalization of this behavior.

Piers Beirne is a sociologist who is professor and chair of the Department of Criminology at the University of Southern Maine, where he teaches a course on animal abuse. His recent books include Inventing Criminology (1993), Issues in Comparative Criminology (1997, edited with David Nelken) and Criminology (2000, with Jim Messerschmidt).