Philosophy in the Barnyard

Submitted by calais on Mon, 07/21/2008 - 08:57.

What's Really Wrong With Bestiality

Justin E. H. Smith

Books and articles discussed in this essay:

John Corvino, "Homosexuality and the
PIB Argument," Ethics 115 (2005): 501-34

Cora Diamond, "Eating Animals and Eating People," Philosophy 53 (1978): 465-79.

Lawrence Krader, Social Organization of the Mongol-Turkic Pastoral Nomads (The Hague: Mouton, 1963).

Ruwen Ogien, L'éthique minimale (Bayard, 2006) (contains a fascinating treatment of Kant on masturbation).

Peter Singer, "Heavy Petting" (2001), posted at www.nerve.com. Available here.

Richard Sorabji, Animal Minds and Human Morals: The Origins of the Western Debate (Cornell University Press, 1995).

Cass R. Sunstein and Martha C. Nussbaum (Eds.), Animal Rights: Current Debates and New Directions (Oxford, 2004) (contains the essays by Catharine MacKinnon and Richard Posner cited below).

It’s exceedingly difficult to know how to broach this interest of mine: if I
don’t explain why it interests me, my readers will assume that I have a
personal stake in the matter; if I insist that it interests me only as an intellectual challenge, I will no doubt hear that I
protest too much. So let me confess at the outset that I am ineed a
zoophile, but only in the English sense that I love animals, and not in
the French sense that I really, you know, love animals. I
believe, much more importantly, that crucial lessons about our
conceptualization of animals, and the moral stance we take towards them
as a result of the way we conceptualize them, may be learned by an
unflinching examination of the supposed moral obstacles to having sex
with them.

Elsewhere, I have argued that most of what we think we may and may
not do to or with animals is a result of pre-moral concept formation,
and that the subsequent moral explanations we give for why we do x to one species and not another are only ad hoc
attempts at rationalizing in moral terms a code of conduct that lies
much more deeply in us than any of our commitments to Christian ethics,
Kantian ethics, utilitarianism, ‘inalienable rights’, or what have
you. Clearly, for example, there can be no account in terms of a
consistent ethical theory of why one would placidly accept the
factory-farming and brutal slaughter of billions of cattle per year,
but then find eating dog meat or rat meat morally abhorrent (the fact
that we in turn find dog meat and rat meat abhorrent for very different
reasons is a problem we’ll get back to soon enough). Similarly, there
is no ethical theory (at least not one that takes animals
themselves as morally relevant subjects) on which one could
consistently hold that it is a moral transgression against an animal to
use it for one’s own sexual gratification, but that it is at the same
time morally permissible to slaughter that animal and eat it.

Better screwed than stewed, is how Dan Savage put this same
point, attempting to give voice to the interests of a sheep. Of
course, the presumption that sheep can’t have interests --and along
with this that they can’t have life projects, preferences, that they
can’t give consent or withhold it-- is one that underlies much of the
anthropocentric argument that slaughtering them can’t count as a moral
transgression against them. But it is precisely this same point, that
sheep are not the sort of creatures that can give consent, that is
supposedly one of the most important grounds of our moral prohibition
on having sex with them. Theorists attempting to account for the behavior of non-bestial carnivores --i.e., the huge
majority of the human race--- seem to want to have it both ways: they
invoke the animals’ diminished capacity to have a say in constructing
their own life as both a license to kill them --the ultimate withholding of moral concern-- and
as generating all sorts of particular obligations to animals, including
the obligation not to have sex with them. There’s something fishy about
this, and I think I know what it is: our explanations in terms of moral
theories of what we can or can't do with animals cannot possibly be
made to be coherent, since what we can and can’t do with or to animals
has nothing to do with our concern for their status as morally relevant entities, or with their rights, or anything of the sort.

II.

Not mere things, but not people either, is how Catharine MacKinnon
has acerbically characterized the received human view of animals.
Certainly, any effort to push animals towards one end of this continuum
or the other has generally been rejected as going too far. Thus
Descartes’s doctrine of the bête-machine was disputed by nearly
all of his contemporaries as extremist and as a violation of common sense,
while this doctrine itself constituted a rejection of the extremism of
figures such as Girolamo Rorario, the 16th-century Italian author of the
treatise That Brute Animals Make Better Use of Reason than Humans.
Aristotle accounted for the animals’ intermediacy by appeal to their
possession of the sensitive, but not the rational soul; Leibniz, by
appeal to their faculty of perception without apperception; and many
today, by appeal to their low-grade cognition, without any grasp of the
syntax that makes our own thinking so rich and distinctively human.
How the grasp of syntax, or the failure to grasp it, is meant to
translate into a measure of moral status remains, however, entirely
unclear. As Richard Sorabji has noted, “They lack syntax, therefore we
may eat them” is hardly a compelling argument.

Arguments have been proferred for the past two centuries to
the effect that such and such things may not be done to animals in
virtue of the rights these entities have, and that these rights are
traceable to what these entities, in themselves, are, to their very
natures. But these arguments come very late in a very long history of human coexistence with animals, in which the various things that we do with or to animals have been held to be significant principally in view of their
significance for us. We think of this significance as a
‘moral’ significance, but it seems to be one that arises prior to any
moral reflection at all, one that is built into the very concept of
animal. Lists of rules governing contact with animals date back
much earlier than animal rights, much earlier than the concept of
rights itself, indeed much earlier than philosophy, and it remains the
case today that most of what we consider permissible or impermissible
to do with or to animal is pretheoretical, and theoretical elaborations
of why we ought or ought not do certain things with or to animals tend
to look a good deal like medieval philosophical arguments against
‘sodomy’: ad hoc rationalizations, under cover of deductive argumentation, of what is already largely accepted as the status quo.

We learn what animals and humans are, Cora Diamond argues, through "the
structure of a life" in which we are here and do this, and they are
there and do that. For example, “we learn what a human being is in --among other ways-- sitting at a table where we [humans] eat them
[animals]” (98). This structure of a life that gives rise to our very
concepts of humans and animals is also what defines what it is possible
to consider doing to these different sorts of entity. Thus, there is
no concept of a human or an animal independently of our understanding
of what we may and may not do in our relation to them. What we may and
may not do to a certain sort of entity might eventually be explicated
in terms of moral duties, but for Diamond what one may do to a certain
kind of thing is simply built into the concept of it, prior to any
considerations of a ‘moral’ character in the sense that Singer
understands morality.

Concept-formation precedes ‘morality’, and the
grasp of a concept just is a grasp of the various ways in which one
may enter into relations with a thing. The duties we have to human
beings, Diamond holds, are a consequence not of the sort of things
human beings are, but of the notion that we have of them, and we form
our idea of the difference between humans and animals -of the range of
things one may do to the different sorts of entity-- in full awareness of
the relevant respects in which they are similar to us. Diamond is interested here in accounting for why human beings tend
to think it is alright to kill animals and eat their meat even though
we are aware of the various respects --neurophysiological, etc.-- in
which they are similar to us. Yet a line of reflection similar to
Diamond's is also fruitful in attempting to account for why human
beings tend to think it is not alright to engage in sexual relations with animals.

What defines the range of what may appropriately be done to animals
--and what makes this range something different from the respective
ranges of what one may do to or with plants, humans, and artefacts--
has nothing to do with the animal's innate capacities, but only with
the valenced position they occupy in a social system that has always
already existed once any effort is made to reflect on it in terms of
moral philosophy. The discovery of the irrelevance of capacities
arguments in general gives us occasion to reconsider the true sources
of our sense of what it is or is not moral to do to animals. This
sense, I believe, is not something separate from our very concept of
animal: concept formation consists precisely in learning the range of
possible relations with the entity in question.

III.

I would like now to attempt to lay out what I take to be the
principal arguments against bestiality, in order then to show, in the following and final section, why all of them so
far have missed the mark entirely.

1. Impossibility of consent. We generally take the treatment
of an entity as a morally relevant one to be wrapped up with the fact
that this entity is of the sort that is capable of having projects for
its future. The sort of entity that can form long term projects is the
sort we take to be able to give consent to enter into certain kinds of
relations, among these sexual relations. We take it to be wrong to
enter into certain relations with entities that might, under other
circumstances, give consent, that might be able to say, ‘this is
consonant with my conception of how I want my life to unfold,’ but
nonetheless are unable to do so at present. Thus child-molestation and
necrophilia can be denounced on the grounds that a potentially
project-having creature cannot give consent, due to the fact that one
person is approaching another with sexual intentions either too soon or

too late. (Necrophilia is a more complicated case, since it is
difficult to account for how a dead person can have interests at all
that might be violated, but I do not want to pursue this difficulty
here.)

There
has been precious little discussion of bestiality among moral
philosophers, other than one succinct notice in the popular press from
Peter Singer, of which the purpose seems more to taunt the mainstream
for the vehemence of their opposition to it, rather than to inquire
after the reasons for this opposition. Here, Singer’s one criterion
for the rightness or wrongness of conduct with an animal is, as in his
other writings, whether the animal suffers. Some men, he notes coolly,
decapitate chickens in the middle of raping them. But, Singer asks,
"is it worse for the hen than living for a year or more crowded with
four or five other hens in barren wire cage so small that they can
never stretch their wings, and then being stuffed into crates to be
taken to the slaughterhouse, strung upside down on a conveyor belt and
killed? If not, then it is no worse than what egg producers do to their
hens all the time." Moreover, Singer continues, “sex with animals does not always
involve cruelty.”

What Singer fails to notice, though, is that cruelty
is generally not at issue in the way people assess the moral valence
of sex with animals. Having sex with a chicken is no worse for the
chicken than what is involved in egg production, yet few will deny that
sex with chickens is further from what is generally perceived as
acceptable behavior than is support of the poultry industry. Singer believes that current practice is not
acceptable, and wants to make our moral commitments vis-à-vis
animals line up with a reasoned consideration of what animals are. His
reasoned consideration leaves him with the conclusion that sex with
animals is fine, as long as it does not hurt them, whereas beating them
and killing them, insofar as these hurt them, are always wrong. In
other words, considering what animals in themselves are leads Singer to
the conclusion that the rules governing our actions with them should be
the same as those governing our actions with other humans.

MacKinnon for her part sees the inability of animals to consent as one
possible source of our prohibilition of bestiality: “Why do laws
against sex with animals exist?… Moralism aside, maybe the answer is
that people cannot be sure if animals want to have sex with us. Put
another way, we cannot know if their consent is meaningful” (267). Mac
Kinnon notes however that “[t]o the degree an injured party is envisioned
in bestiality laws, though, it is structurally imagined to be the human
or the community." But does anyone really think non-violent sexual contact with a non-consenting animal is really bad for it?
It seems much more likely that MacKinnon is off the mark here, and that
any effort to account for prohibitions on bestiality in terms of
protecting the rights of beasts amounts to a gross overstretching of
rights talk into areas of the lives of creatures where it clearly does
not have any relevance. Singer, though perhaps the most vocal defender
of a comportment towards animals that takes seriously the idea that
they are rights-bearing entities, to his credit acknowledges that, even
if animals have rights, non-violent sexual contact doesn't seem to be a
violation of these rights.

Yet the very fact that animals react with such
indifference to behavior --namely, sexual behavior-- that in humans is
always accompanied by all manner of questions about how this instance
of it fits into our lives, about whether it enhances or diminishes our
autonomy, whether it is 'good' or not, shows that animals are so very
different from humans that it might not be an easy matter at all to
extend a concept --that of rights-- from its original application in
the human domain all the way to sea-anemones. A sea-anemone can't be
raped, not violently, not statutorily. It's just not the sort of
entity for which this is a meaningful concept to employ. What about a
sheep? A sheep could almost certainly be raped violently, but what the
creature itself would find objectionable, if I may be permitted to imagine myself into its place, would probably be the violence
of it, and not the rape itself. On MacKinnon's thinking, a sheep could
also be a victim of statutory rape: it could be ignorant of the harm
done to it, yet harmed it would still be. This strikes me as absurd.

2. The Kantian position: bestiality as masturbation. Most
animal protection laws, in any case, do not take animals to be
rights-bearers at all, but instead are rooted in a
Christian-cum-Kantian ethical theory according to which animals are a
sort of simulation of morally relevant entities. Thus in the US, "only
Utah categorizes the laws against sexual contact by humans with animals
under cruelty to animals” (MacKinnon, ibid.). For a Kantian, it is not
that beating a dog is really a moral wrong committed against the dog
itself, but since beating dogs might serve as a gateway to beating
morally relevant humans, it is nonetheless forbidden. "Animals are a
means to an end," as Kant says, "and humans are that end." If behavior
towards animals could eventually impact behavior towards humans, it
becomes indirectly morally relevant.

For a strict Kantian, masturbation with the help of a sex toy and
bestiality are wrong for exactly the same reason. Both involve the use
of a mere means to an end for one's own self-gratification, and for
Kant there could be no ontological difference between the artefact and
the animal that might make a moral difference. The simple act of
self-gratification, Kant thinks, means that one also takes oneself as
a means to an end, that is, one fails to recognize one's proper human
status as an end that cannot be a means. For this reason, Kant
believes that "such an unnatural use of one's sexual attributes"
amounts to "a violation of one's duty to himself," regardless of
whatever morally irrelevant tools, including animals, might come into
play. For Kant, masturbation is so terrible that it does not even deserve to be called by its name. It is worse than suicide, since in suicide one at least displays the fortitude to transform oneself into a non-end once and for all. Masturbation is so infinitely bad that the mere incorporation of an additional tool into the act can't possibly tip the scale any further.

For anyone who is not a strict Kantian (most of us, I think, as far
as this question is concerned), tool-aided masturbation and bestiality
clearly are different, for the simple reason that sexual contact with
an animal, unlike sexual contact with a vibrator, is unavoidably a
sexual relation. A vibrator is a tool, a means to an end, and
this end may be fulfilled alone. Even if we are all in disagreement
about whether animals have full moral status, we non-Kantians will all
agree that an animal is not like a vibrator. It cannot be a tool, but
is always a being, and if one has sexual contact with it, one has
sexual contact with some sort of other.

3. Non-mutuality. Some argue that the problem with
bestiality is that, even if an animal is undeniably an other, it is
still the sort of other that lacks life projects. Thus a sexual
relation with an animal can't amount to a shared life project,
and --it is presumed-- any morally praiseworthy sexual relation ought
to be such a project. Something like this account is often heard in
response to the conservative complaint that to permit homosexuality in
our society will lead quickly to an 'anything goes' atmosphere in which
bestiality, among other perversions, thrives. As Rick Santorum said,
once you've got man-on-man sex, why not man-on-dog?

John Corvino, in a recent article, responds to Santorum's reasoning
with a lengthy account of the various respects in which homosexuality
differs from 'PIB', that trifecta of unacceptable relations:
pedophilia, incest, and bestiality. Corvino's argument to keep bestiality in its traditional place, while
helping to promote homosexuality from its (recently) traditional place
into a preferable one, is based in the claim that sexual contact with
an animal cannot contribute to the development of a meaningful
relationship with an other, cannot, by definition, contribute to a
profound interpersonal interaction, while a homosexual, intraspecies
relationship is as well suited to do so as a heterosexual one. This
claim is true, as far as it goes, but it presupposes that such
profundity is an intrinsic feature of any morally salutary sexual
contact. I'm not saying it's not, but as Corvino himself says, it is
the job of philosophers to investigate presuppositions.

There are all kinds of sexual activity that one could argue are morally
salutary, or at least not morally nugatory, that nonetheless do not
involve mutual growth and profound interpersonal communication. Consider Jan Švankmajer's film, Conspirators of Pleasure. This is the
story of people who build elaborate machines with which to masturbate.
These count as projects, to say the least, and this is to say that
masturbation --a form of sexual activity that cannot by definition
involve mutual growth or communication, since there is only one person
involved-- is not necessarily just a sexual release. Potentially, one
may approach bestiality in the same way in which Švankmajer’s
characters approach masturbation, as a project, or even a consuming
passion. The rural adolescent with limited options is one thing, the
protagonist of Edward Albee's play, The Goat
--who falls in love with a goat after looking into its eyes
and sensing, deep in his soul, that the beast undersands him-- is quite
another. (We might also consider Roberto Benigni's character in Jim Jarmusch's Night on Earth, who recounts to a priest his past affairs, and how he decided to move on from a watermelon to a sheep after realizing that a meaningful sexual encounter involves a creature "with a soul.") We may say
Albee's character is warped, and leave it at that. But --and this is
something Albee clearly wants us to consider-- the same point has often
been made about homosexual desire, and it behooves the philosopher as
well as the playwright to provide an account of what it is about this
particular class of entities that makes desiring them something only a
warped person could do.

In any case Santorum was comparing apples and oranges (or maybe
something more like apples and orange-hood), since what was at issue in the state of Pennsylvania, where he served as congressman, was not whether men were having sex with men
(they were), but rather whether men should be allowed to marry other
men. For this, there is no analogous debate regarding human-animal
relations, which goes to show how very different are the issues of sex
and marriage. We do know that among certain groups of Mongol-Turkic nomads, it
is possible to marry inanimate objects. Lawrence Krader tells us that
"[a]n unwed mother or a pregnant girl who has no husband is often
married to a prayer rug, a tree, a terra-cotta figurine (of a lion,
etc.)… The purpose of these anomalous marriages is to give a social
standing to the child… Another form of anomalous marriage is that of
an unmarried girl with a belt belonging to a guest who is permitted to
cohabit with the girl with a family in accordance with the rules of
hospitality." These possibilities do not stem from a prior recognition
of the possibility of having sex with the inanimate objects; girls who are married off to statues or to rugs know at the outset that
they will not be having sex with their unresponsive spouses. The
objects simply function as placeholders in a logic of kinship that
requires pairings at all costs, and that makes do with things like
statues when there are no men available.

This anthropological datum serves to underline how different the
question of possible legal kinship pairings is from the question of
possible morally permissible sex acts. This example even suggests the
surprising conclusion that we might sooner find a culture that
permits marriage to animals than we could find one that permits sex
with them. In our culture, of course, marriage is thought (or hoped)
to be based on love, and in-love is a state in which people having sex
are thought, or hoped, to be. But this is by no means a necessary
feature of the concept of marriage in general, or of particular
instances of marriage in reality. At a minimum, to be married is to
conceive of oneself, and to be so conceived by one’s society, as being

one of the members of a pair. Corvino is right to distinguish the
question of sex from the question of legal recognition of a
relationship that is seen as ideally involving sex, but again, wrong to
presume that the moral status of bestiality derives directly from the
objective limits to the reciprocal meaningfulness of an animal-human
relationship. Anyway we can grant that sex with a horse will not lead to mutual
emotional growth, but Corvino is wrong to take it for granted that such mutuality is a sine qua non of salutary sexual relations (again, it might in fact be a sine qua non, but philosophers don't take things for granted).

4. Fear of hybridism. There is another argument that we should
perhaps briefly mention, one that was once very important but that has fallen out of fashion
in the light of increased knowledge of the relevant scientific facts. For
much of history, one concern about bestiality was that it would lead to
monstrous hybrids. The classical moral argument
against bestiality thus resembled the one still commonly invoked
against incest: it leads to birth defects, and so our morality is a simple reflection of inflexible genetic facts. Richard Posner notes that “[t]he belief… behind making
it a capital offense for a human being to have sexual intercourse with
an animal --that such intercourse could produce a monster-- was unsound,
and showing that it was unsound undermined the case for punishment”
(67). Today, we have more or less accepted that it is unsound, as we now know that, for the
most part, cross-fertility is not a real possibility. But it is certainly
understandable that in the absence of real knowledge of how genetics
works, our ancestors might have been truly concerned about the need to
police the boundaries of our species by prohibiting bestiality. In this respect, the prohibition
on sex with animals would have nothing to do with morality at all, but
would simply be an instance of group selection, and the moral accounts
given of it simply afterthoughts.

5. Debasement. Just as Peter Singer had predicted, the primary mainstream objection to his stance in partial favor of bestiality --if the The New Republic and National Review Online
are representative-- is that sex between humans and nonhumans,
regardless of the circumstances in which it occurs, is
"an offence to our status and dignity as human beings." For
Kathryn Lopez of National Review Online, for example, the red
flag is any suggestion that "humans ain't nothing special" ("Peter
Singer Strikes Again," March 8).
Singer notes that the vehemence with which people react to bestiality
"suggests that there is another powerful force at work: our desire to
differentiate ourselves, erotically and in every other way, from
animals." I can also imagine a second version of the debasment argument
that would not emphasize the specialness of humans, as does Lopez's
version, but instead would locate the wrongness of bestiality in the
fact that it is an instance of promiscuity in general.

To invoke the debasing character of bestiality is hardly to make an argument; it is only to give a gut reaction without explaining why the idea of this deed has this effect on the gut. Gut reactions may be the most we can hope for in issues such as this, but I think I have at least an inkling of an explanation of why we might justly call bestiality wrong, an explanation that does not, I hope, amount to either a mere gut reaction (as does 5), nor to a reliance on false scientific beliefs (as does 4), nor a reliance on an unargued presupposition about the minimal conditions of salutary sexual contact (as does 3), nor a reduction of the animal to a morally irrelevant tool, coupled with an implausible argument against self-gratification as a betrayal of human dignity (as does 2), nor a strained invocation of the animal's supposed rights (as does 1).

IV.

I have already argued that most of what we believe it is permissible
or impermissible to do with or to animals arises not from moral
reflection, but from pre-moral concept formation, from, as Cora Diamond
says, the fact that we are here and do this, and they are there and do
that. I think this approach can help us to get to the heart of the
matter and to determine what's really so abhorrent about bestiality.

Bestiality is, quite simply, weird. Now I want to make an important theoretical distinction between, on the
one hand, the predicate ‘weird’ in this instance, and, on the other
hand, predicates such as ‘base’ or ‘vile’ or ‘repulsive’. ‘Weird’ here
means ‘does not fit with our concept of the thing’, a concept that is
formed prior to moral reflection. On this view, then, having sex with
an animal is weird in the same way as, say, keeping a watch-pony in the
yard, hitching up your German shepherd to plow the field, going to the
zoo to look at common house cats, or serving up rat meat. There is
nothing ‘morally’ wrong with any of these activities, in the sense that
no real harm is done to any creatures (or at least no more harm is done
to the rat or the German shepherd than the harm ordinarily permitted
when it comes to beasts of burden or beef on the hoof), but they
nonetheless make a mess of our usual conceptual distinctions between
work animals, food animals, exotic animals, pets, and vermin.

In important respects, pets, vermin, food animals, and work animals are
as different from one another as all of them are from human beings. In
some cases, the rigidity with which these different conceptual
categories determine what we may do with or to animals belonging in
them is at least as great as the rigidity with which an entity’s
membership in the class of animals determines that we may not have sex
with it, or another entity’s membership in the class of humans
determines that we may not keep it on a leash. Zoophile pornography is
illegal, but largely tolerated, whereas a restaurant that would dare to
serve dog meat, in North America, anyway, would be shut right down,
even though, I insist again, there is nothing worse in eating a dog
than there is in eating a cow. It seems reasonable to suggest,
moreover, that the significance of an act of bestiality with a beloved
pet is at least as different from, say, one with a sea anemone as it is
from one with another human being. Barnyard bestiality seems
already quite different from pet bestiality, and this, we may presume,
has to do with the important conceptual difference between food animals
and pets. The use of a sea anemone seems barely worth denouncing as
bestiality at all, but rather seems more similar to the use of any
inanimate sex toy; or to the now legendary purpose to which a cow’s liver
was put by Philip Roth’s protagonist in Portnoy’s Complaint.

Conceptual distinctions between vermin, pet, etc., I think, do the
heavy work of determining the range of what we perceive it fitting to
do with the differents sorts of animal, prior to any moral reflection
about what sort of treatment animals, in view of what they in
themselves are, deserve. The conceptual categories into which
different sorts of animal are placed have nothing to do with their
neurophysiology, their ability or inability to use syntax to generate
novel sentences, or their ability or inability to freely give consent.
The wrongness involved in an action that betrays a failure to
grasp the concept of pet or vermin, in turn, has nothing to do with
the perception of harm to the creature. It has only to do with the
perception of harm to the shared conceptual scheme that enables us to
give order and meaning to the world around us. No set of rules does
more to contribute to this order and meaning than the set that
dictates who may have sex with whom or what, when, where, and in what manner. And
this is why bestiality is wrong.