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Photo of Matt M. McClenahen

Sex Offenses: The Strange Tale of How Pennsylvania Legalized Bestiality

On Behalf of | Jul 22, 2013 | Sex Offenses

There have been no shortage of utterly absurd laws in the United States criminalizing sexual activity between consenting adults, and Pennsylvania is no exception. Pennsylvania once had an offense known as “voluntary deviate sexual intercourse,” with “deviate sexual intercourse” being defined as oral or anal sex. This was distinguished from “involuntary deviate sexual intercourse,” which entails oral or anal sex without a victim’s consent, or in situations where a person under age 16 factually consents, but is too young to legally consent to any form of sex with someone more than four years older.

The crime of voluntary deviate sexual intercourse made it a crime in Pennsylvania for unmarried people to have consensual oral or anal sex, while such activity was perfectly legal within the confines of marriage. It goes without saying that those who passed this law were married men. The offense was graded as a second degree misdemeanor punishable by a sentence of one to two years incarceration and a $5,000 fine.

So, it was perfectly legal for consenting adults to have vaginal intercourse or engage in mutual masturbation outside of marriage, but oral or anal sex was reserved for married people. As illogical as this distinction may seem to anyone with a functioning brain, believe it or not, the absurdity does not end here. The same statute which outlawed consensual fellatio, cunnilingus and anal sex, also outlawed sex between a human and animal. Yes, the enlightened writers of this statute seemed to think that bestiality was in the same perversion category as oral and anal sex between humans and, therefore, these activities were all lumped into the same statute and carried the same penalties.

In practice, Pennsylvania’s voluntary deviate sexual intercourse law was rarely enforced against unmarried heterosexual couples or against married people engaged in heterosexual adulterous affairs. It was primarily used to oppress gay people. Eventually, the Pennsylvania Supreme Court declared the law unconstitutional in 1980, but the unconstitutional law remained on the books for another 15 years, although it could no longer be legally enforced.

In 1995, the Pennsylvania General Assembly set about rewriting the Pennsylvania Crimes Code in order to remove statutes which had either been declared unconstitutional, or which had essentially been replaced by more modern statutes. At this time, the voluntary deviate sexual intercourse statute was erased from all future versions of the Pennsylvania Crimes Code, but the General Assembly scrapped the entire statute, including the part which criminalized sex between humans and animals.

With bestiality no longer a crime after the 1995 repeal of the voluntary deviate sexual intercourse statute, Pennsylvania law enforcement decided to get creative when dealing with bestiality cases, rather than just looking the other way. They would charge people with offenses such as cruelty to animals or agricultural vandalism. Charging such offenses amounted to trying to fit a square peg into a wrong hole, as these statutes did not contemplate bestiality when they were written. Thus, law enforcement needed a specific law, which unequivocally outlawed bestiality, as had existed before 1995. Finally, in 1999, the General Assembly added a new offense called “sexual intercourse with animal.” Like its predecessor statute, it is graded as a second degree misdemeanor punishable by one to two years in state prison and a $5,000 fine.

In case you are wondering, the fact that bestiality was not a crime in Pennsylvania for a four year period did not lead to an increase in such activity. There are certain things normal people are not going to do, regardless of whether it is legal or not.

Matt McClenahen is a criminal defense attorney in State College, Pennsylvania, with years of experience in sex offense cases. He limits his practice to criminal law.

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