Sex with animals: what is and is not allowed

One of the more curious revelations about the Tottenham Hotspur bestiality case is the fact that the North London club has a training ground of such bucolic charm that it could have been the inspiration for Beethoven’s Pastoral Symphony. Mr Lovell is due to be sentenced in March for outraging public decency by trying to have sex with a variety of sheep and cows in a field next to the club’s training ground.

Much of the evidence against him came from Lawrence Stephen, a 23 year old tree surgeon and his girlfriend Natasha Brennan who were picnicking “underneath their favourite oak tree” last September. Not only was it an apparently attractive picnicking spot, it was also full of cows and sheep that, at least at first, were quietly grazing. As they settled down to enjoy their picnic their emotions would have matched those depicted by the maestro in the first movement: “cheerful thoughts upon arriving in the countryside.”

I know North London quite well and, away from the obvious spots such as Hampstead Heath (where there are no longer any farm animals) and a few scattered fields in Finchley there are precious few places with a choice of oak trees suitable for a picnic. We don’t know quite how far they had got with their lunch before matters moved swiftly to an unexpected scherzo. This was not at all like Beethoven’s version of “country folk dancing and revelling” but something a little darker and more bizarre. Perhaps Shostakovich or Bartok would have been better at catching the mood. Certainly Bach’s Sheep may safely graze would have been particularly inappropriate.

The facts of the case are by now very well-known. The couple noticed Mr Lovell, wearing only his shoes and socks, and carrying a Sainsbury’s bag and a can of Skol lager, walking around the field, and according to Mr Stephen: “…trying to thrust his waist towards the cows and using his hands to get the cow’s mouth towards his crotch …. “

Although Mr Lovell’s behaviour could hardly be called gentlemanly, it is to his credit that he relied on guile rather than brute force to persuade the cow: “I can’t remember him forcing the cow – he wasn’t actually grabbing the cow, but he was trying what he could.” It is, in truth, very hard to know what, other than “grabbing the cow” he could have done to persuade her. Offered a bunch of grass? A peppermint perhaps? The report does not make it clear whether he tried to employ either of these stratagems. Having failed to get satisfaction with the cow, he then turned his attention to the sheep in the same field, this time attempting, again it seems without success, to penetrate them from behind.

Contrary to popular belief Mr Lovell was not in fact charged with “bestiality”, or “having intercourse with an animal,” which is a statutory offence under S.69 of the Sexual Offences Act 2003: nor even with with attempting to do so. Instead he was indicted for the common law offence of “outraging public decency.” This is an offence which covers: “All open lewdness, grossly scandalous behaviour, and whatever openly outrages decency or is offensive and disgusting, or is injurious to public morals by tending to corrupt the mind and destroy the love of decency, morality and good order.” The essential point is that the conduct in question must be openly lewd: it must be done in public.

By choosing a popular picnicking spot next to the Spurs training ground Mr Lovell seems to have chosen a place where he was very likely to be seen. The argument at the trial was about whether Mr Lovell had done what was alleged. If he did it, there can have been no argument that his behaviour was openly lewd, or as Scottish law even more censoriously puts it, with a scandalised Jean Brodie Edinburgh accent, “lewd and libidinous.” A more interesting legal point is how, if at all, Mr Lovell’s behaviour would have been criminal had it been done not in a picnicking spot, but in an isolated and completely rural English or Welsh field. The answer is that no offence would necessarily have been committed. The law does not in fact ban all sexual activity with animals. Though something of a legal minefield, it is perfectly possible for the cautious zoophiliac to avoid committing a criminal offence if he, or she, is careful.

It is worth looking at S.69 of the Act in a little detail.

69  Intercourse with an animal

(1) A person commits an offence if—

(a) he intentionally performs an act of penetration with his penis,

(b) what is penetrated is the vagina or anus of a living animal, and

(c) he knows that, or is reckless as to whether, that is what is penetrated. 

(2) A person (A) commits an offence if—

(a) A intentionally causes, or allows, A’s vagina or anus to be penetrated,

(b) the penetration is by the penis of a living animal, and

(c) A knows that, or is reckless as to whether, that is what A is being penetrated by.  

(3) A person guilty of an offence under this section is liable—

(a) on summary conviction, to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum or both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 2 years.

The first point to note is that whilst it is an offence to have vaginal or anal sex with a living animal, the sort of oral sex that Mr Lovell was soliciting with the cow is perfectly legal, as long as it is done in private. The consent of the animal is legally irrelevant, although common sense dictates that where most animals are concerned – and certainly cows – it would be wise to emulate Mr Lovell and try to obtain it first. Secondly, the act contains no definition of “animal.” Given that the offence carries a possible two year sentence this is an unfortunate lacuna. Matters are not made much clearer by the partial definition contained in S.79 (10): “In relation to an animal, references to the vagina or anus include references to any similar part.”   It is unclear exactly what it is getting at by the words “any similar part”. All mammals,possess an anus and all female mammals have a vagina.

So the mischief at which the extended definition is aimed seems to be sexual activity with non-mammals: the draftsman seems to have in mind, in particular, birds.  Birds certainly possess a vagina but it is accessible only through the cloaca, an organ which is not exactly an anus, but it is almost certainly a “similar” organ within the meaning of the Act.

This brings us neatly to the Bishop of Gloucester.

A vice both obscene and unsavoury

Holds the Bishop of Gloucester in slavery.

With demonic howls

He deflowers young owls

Which he keeps in an underground aviary.

His Grace is, I am afraid, guilty of the statutory offence under S.69 (1), although not of outraging public decency as his aviary seems to be private.

Unlike other forms of depravity, sexual misconduct with snakes has never been a serious problem in the Church of England, or even in the Church of Rome. On the other hand it was a common practice amongst the more decadent Roman Emperors. Female snakes possess a vagina but my understanding is that that fact was rather beside the point in Roman orgies. Those who wish to know more will find no details here. Barristerblogger may not be a family blog, but there are limits beyond which it will not go. It suffices to say that many of the bizarre practices indulged in with snakes would, in fact, be perfectly legal under English law (providing no cruelty was perpetrated to the snakes). As an interesting aside male snakes do not possess penises. Instead they have paired copulatory organs called “hemipenes”. Whilst these could be said to be “similar” to a penis that is legally irrelevant. A true penis is a requirement for the offence under S.69 (2). “Penis” is not defined in the act, and unlike the words “anus” and “vagina” there is no extension to cover “similar parts”.

One might have thought that there was little need to deter people from having sex with insects, but in fact the opposite is the case. Only last year a Swedish man was reportedly killed after trying to have sex with a hornets’ nest.  Perhaps he was testing the limits of the law by trying insects because Sweden recently made sex with animals illegal. Even if the actual story is a little hard to believe there is certainly a considerable public interest in discouraging sexual experimentation with stinging insects. S.69 provides no real deterrent: it requires penetration of the insect’s anus or vagina with a human penis and it is impossible to imagine either an insect large enough or a penis small enough to commit the offence, although I suppose it is just possible that someone could be charged with attempting to do so. As the House of Lords decided in Shivpuri [1987] A.C. 1 it is an offence to attempt a crime, even though its completion is in fact impossible.

Mr Lovell is to be sentenced by Judge James Patrick who is not only one of the most humane and civilised of circuit judges, he is also an ordained minister in the Church of England. He will need to call on all his wisdom in deciding what sentence he should pass on Mr Lovell. There are no sentencing guidelines for outraging public decency, although those for bestiality suggest that leniency is appropriate where the offence is a “symptom of isolation rather than depravity.” I hope and expect that he will pass a lenient sentence. The thought of a man like Mr Lovell having to endure a prison sentence is horrible to contemplate.