Monday, March 13, 2006

Sen. Creem Protecting Cats & Chickens from Rapists!

State Senator Cynthia Creem is not pleased with our analysis of her bill lessening the penalities for bestiality, S938. We never said she wanted to decriminalize it, just lessen the penalties. She says she wants to protect cats and chickens from human rapists! Her Legal Counsel asked us to publish his response explaining their reasoning (below).

(Now we wonder if
Rep. David Linsky will come back with a response on our posting on his bill, H819, saying it was a simple error by his secretary when she filed it, and he didn't really mean to decriminalize bestiality?)

Here's what the law in question currently states: "Whoever commits the abominable and detestable crime against nature, either with mankind or with a beast, shall be punished by imprisonment in the state prison for not more than twenty years." (Ch. 272, Sec. 34.)

And here's how Sen. Creem's bill (S938) would change it: [First it removes human-to-human sodomy altogether and reads ...] Whoever commits a sexual act on an animal shall be punished by imprisonment in the state prison for not more than 20 years or in a house of correction for not more than 2 ½ years, or by a fine of not more than $5,000, or by both such fine and imprisonment.

You don't have to be a lawyer to see that one of the proposed penalties is just a fine with no prison time. And that fine could be as low as $1. That looks like "lessening the penalty" compared to some prison time as required in current law!

To MassResistance:
I read your inaccurate portrayal of Senator Creem's bill to revise the bestiality statute on your web site. Unfortunately, there has been a great deal of misinformation about the bill posted on the internet without any attempt at fact checking. To help explain the purposes and the need for the bill, I have attached a letter I sent one of our constituents several months ago. Since your posting has generated several calls to our office, I would appreciate it if you would post a retraction.
Thank you for your attention to this matter.

Sean Kealy, Legal Counsel
Office of Senator Cynthia Stone Creem

[He attached an earlier letter to Brian Camenker at Article 8 Alliance:]
Thank you for the opportunity to give you some accurate information about Senator Creem’s proposal to repeal several archaic crimes and to revise and update the bestiality statute. Since you are a constituent of Senator Creem’s, I am surprised that you did not contact us for clarification or explanation for one of her bills. It seems as though you have received bad information from your sources within the State House. Clearly they, like Mr. McMorrow from Weekly Dig, are neither trained in criminal law nor familiar with the drafting of criminal statutes. If they had researched this issue, you would not be so misinformed.

Your internet postings create the impression that Senator Creem is trying to legalize bestiality. This seems to be a poor attempt to give credence to Senator Rick Santorum’s ridiculous and hyperbolic statements that the legalization of gay marriage in Massachusetts would naturally lead to the legalization of bestiality. This accusation is absolutely baseless—especially since we are taking pains to not only retain the bestiality statute, but also make it more effective.

Secondly, the substitution of the word “animal” for the word beast will absolutely expand the reach of the bestiality statute. You may not be aware of people in Massachusetts having sex acts with ‘dogs, cats or fowl,’ but it is an unfortunate and deviant behavior that occurs throughout the world. In fact, the Humane Society of the United States reported that,

“Cases of sexual abuse of animals include many species, both domestic and wild. Dogs and horses are the most frequently mentioned targets. Their availability and status as companions may make them likely victims. Dogs may be acquired from free-to good home advertisements, pet shops, breeders, animal shelters or as strays. Animals who are kept outside, such as dogs, horses, cows sheep, chickens, may be abused by “fence-jumpers” who trespass to gain access to animal victims. Wildlife in captivity, such as those in roadside zoos, may also be vulnerable to abusers.” (“Animal Sexual Abuse” Report of The Humane Society of the United States, January, 1999).

The Humane Society Report goes on to report 11 cases of charged bestiality with dogs and cats in Florida, Montana, South Carolina, West Virginia, Pennsylvania, Indiana, Tennessee and Ohio.

Furthermore, you may not be aware of the problem in Massachusetts because the statute is ineffective and such people are not being charged appropriately. In support of my contention, I would offer Boston Police Officer John Sacco’s “Police Beat” column from the June 18, 1998 edition of South End News (page 9). Officer Sacco reported that:

“[T]he residents of a local elderly building became upset when a 47 –year-old male resident started having sex with his female dog in plain view in the common areas. People complained that on one occasion, in the elevator, ‘He lifted the dog by the hind legs and performed oral sex.’ When asked why he was doing that, he said, ‘The dog was in heat.’ On another occasion he was having digital sex with the dog while saying, ‘You love it.’ The outrage by residents was heard loud and clear. He had to be charged. A research of law revealed that the crime of bestiality, sex with an animal, referred only to ‘hoofed beasts.’ Our law is based on the old English common law. Our forefathers saw sex with a horse, donkey, sheep, etc. as an abomination. Sex with a web-footed animal such as a duck or a pawed animal like a dog or cat was okay.…A court of law will decide the fate of the dog lover—soon, we hope.”

Part of the problem is that the term “beast” is itself archaic within a legal context. The term is not even included in the 8th or 6th editions of Black’s Law Dictionary. Using the 4th edition of Black’s, however, defendants have been able to argue that the term beasts are limited to horses, cows pigs and livestock. See eg. People v. McKnight, 302 N.W.2d 241, 243 (Michigan App. Ct., 1981). Absent a current legally accepted definition, a court might rely upon a common usage dictionary definition. The American Heritage Dictionary defines a beast as a “large four footed mammal.” Even this definition, which does not rely upon the hoofed/pawed/webbed foot distinction, would seemingly exclude a small dog, a cat, or a bird. Some state courts, such as the Appellate Court of Indiana, have judicially expanded the definition of “beast” to encompass all animals, but only through some legal sleight of hand. See e.g. Gates v. Petri, 143 N.E.2d 293 (1957) (finding that defendant’s sex act with a chicken was covered by the Indiana bestiality statute). The Massachusetts appellate courts have not made such a ruling to date, leaving prosecutors and police confused. Changing the word to “animal” would at least remove confusion and at best expand the reach of the statute.

Thirdly, your flippant comment that the courts are “not clogged up with grand jury investigations on bestiality” misses the point. It is a common practice today to give the prosecutor the flexibility to charge and prosecute even serious crimes in the District Court. As a former prosecutor, I can report that there may be many reasons for this decision including: the particular facts of a case, the criminal record of the offender, a multi-defendant strategy (e.g. prosecuting a minor player in a criminal conspiracy at the district court level to elicit a cooperation agreement against a major player), or if the underlying crime was not completed and the only available charge is an attempt or a conspiracy. It should be noted that the maximum sentence would only be 2 ½ years if the prosecutor chose to bring the charges in the District Court. While the District Court did not exist when the bestiality statute was first enacted, this option is very common statutory device today. Such an option is available to prosecutors when charging other extremely serious felonies. Each of the following have a maximum prison sentence of 20 years in prison but also include a District Court option with a 2 ½ year house of correction sentence: Voluntary Manslaughter, Mayhem, Attempted Murder and Armed Carjacking.

Fourthly, the penalties contained in this bill would continue to be the most severe in the United States with a maximum penalty of 20 years. Twenty-eight states have no statutes against bestiality. Only 11 states make this crime a felony, with Massachusetts and Rhode Island penalizing the crime with potential 20 year sentences; Oklahoma, Montana, Mississippi and Maryland penalizing the crime with maximum 10 year sentences, and Louisiana punishes the crime with a maximum of 5 years. Bestiality is only a misdemeanor in the other 17 states.

Finally, you accuse me of being dishonest about the real motivation of this bill, which is to satisfy a legislative goal of the “homosexual movement.” This bill does not seek to repeal the sodomy portion of the “Crime Against Nature” to advance any movement, but because that portion of the statute is truly archaic—charges will not be brought by a state prosecutor and even if they were, no court would allow the case to go forward. This state of affairs is the result of two recent court cases. In 2002, the Massachusetts Supreme Judicial Court unanimously ruled that consensual conduct in private between adults is not prohibited by G.L. ch 272 § 34. Gay & Lesbian Advocates & Defenders v. Attorney General, 436 Mass. 132 (2002). This ruling in accord with the U.S. Supreme Court’s ruling in Lawrence v. Texas, 123 S.Ct. 2472 (2003), which struck down the Texas sodomy statute. Even if the State and Federal courts had not ruled, the Mass. Attorney General’s Office and the District Attorneys for Middlesex and Suffolk Counties (comprising 43% of the state by population) stipulated in GLAD v. Attorney General that their offices will not prosecute anyone under the Crime Against Nature for sodomy unless the prohibited conduct occurred either in public or without consent. Either of those two situations would be better charged as Lewd and Lascivious Conduct or Rape. Therefore, the sodomy portion of the “Crime Against Nature” is not needed. An unnecessary crime that has been ruled unconstitutional by two Supreme Courts is archaic and may safely be removed from the books.

Thank you for your attention to this important issue. I hope this has been helpful.
Sean J. Kealy, Legal Counsel
Senator Cynthia Stone Creem’s