(Warning: Graphic Content)
The immense impact of the recent movie The Shape of Water suggests that a cultural shift may be taking shape – albeit, in an amorphous, watery kind of way – encouraging us all to become more accepting and tolerant of inter-species sex. This possibility – along with the fact that many forms of sex with animals is currently legal in Canada – should be of concern to us all.
Although this is a very difficult subject to broach, it’s also incredibly important; especially now, given the phenomenal success of this recent movie and the fact that both Parliament and the Courts have been dealing with this issue, which is why I believe it’s important for us to be aware of these events and be willing to discuss them. I offer some important factual information in this article as well as some personal observations, especially how these themes and issues relate to the current social, cultural and legal status of inter-species sex in Canada, which is facing something of a legal “watershed” moment. My article has two parts:
Part I looks at how inter-species sex in “The Shape of Water” has garnered widespread sentimental support for the idea that having sex with non-human beings (animals) can be, at least in principle, a potentially beautiful and acceptable practice, as long as that sex is an expression of love.
Part II offers a summary overview of the current legal status of inter-species (human-animal) sex in Canada, especially several recent court rulings on a charge of bestiality, where a B.C. man was initially found guilty, but then had that conviction overturned when he appealed the decision to the B.C. Court of Appeal. The Crown then sought leave to have the Supreme Court of Canada hear the case, and heard arguments in November, 2017. A ruling has not yet been delivered. The only thing we know for sure is it will be a ruling that will decide whether all forms of sex with animals (other than penetration) will remain legal in Canada.
Part 1: The Shape of Water – An Inter-Species Love Story with Sex
In the interest of full-disclosure, let me start by saying that I watched Guillermo del Toro’s sci-fi romance movie The Shape of Water and, as a work of fictional entertainment, I enjoyed it. However, it also left me feeling quite uneasy. The movie was beautifully-constructed and powerfully-delivered. The main characters were both likable and believable, and I’m sure both the creature and the woman who became embroiled in an evolving and intensifying romantic relationship elicited nothing but an increasing amount of sympathetic support from the audience as the movie progressed. Most of the other characters in the movie were human monsters and were a lot less likable than the creature.
The movie made a compelling case for the acceptance of inter-species love and sex without offering a single rational argument. It was entirely based on sentiment. The woman and the creature were obviously very unhappy before meeting, and were clearly much happier as their relationship flourished. They weren’t hurting anyone, so who would have such a cold heart as to demand they separate simply because they weren’t of the same species, only to return to their former lonely, miserable states? And it seemed that the creature was intelligent, so unlike animal activists who argue that sex with animals should be wholly forbidden because sex must be consensual, and animals would seem to be incapable of communicating consent, the creature in the movie – although the extent and nature of his intelligence. and his capacity to communicate consent was somewhat unclear – seemed a willing participant and not simply driven by instinct.
Still, as I watched the movie I became increasingly troubled by how the cinematography and carefully-crafted story were slowly bringing me to an emotional place completely incompatible with my general world-view and moral principles, both of which clearly told me that what I was watching on the screen was, for countless reasons, inappropriate and morally wrong.
This kind of subtle, powerful and extremely-effective form of persuasion was by no means unfamiliar to me. In fact, the same kind of dynamic has often played itself out with really good movies that serve up likeable characters with a powerful storyline; especially vigilanté stories, where some poor down-on-his-luck underdog gets brutalized or tortured by nasty, brutish people (or, more often, the guy’s innocent wife or girlfriend gets raped or tortured) then he miraculously finds a way to get justice and, against all odds, goes on an amazingly-successful killing spree, wiping out the whole crew of evil-doers while hardly incurring a scratch. I think we all tend to cheer for such characters (but usually without making that too obvious, due to the implicit moral ambiguity we experience from wanting justice on the one hand, but not wanting to be seen as celebrating genocide on the other) and then we leave the theatre feeling strangely satisfied with the movie’s outcome when it’s all over. It’s just a movie.
But we don’t leave the theatre with new ideas in our heads about how justice should be guaranteed in society. We don’t suddenly change our view about the justice system and policing – in the space of 2.5 hrs – and resolve that whenever people are treated really badly in the future, and the police and courts aren’t able or willing to do anything much about it, then it’s okay to go on a killing spree. In other words, we’re able to easily keep the lines between fiction and real life in view.
The Shape of Water wielded a different kind of power – it seemed to have the ability to not only shape water, but also the ideas we take with us back into the real world when the movie is over. I believe this was because our culture currently seems far more concerned with whether “feelings” are “positive or negative” than whether “ideas” are “right or wrong”. But it was just an entertaining work of fiction right? Well, not exactly. I found that the lines between reality and fantasy were really fuzzy in this movie, and they were blurred along the line regarding whether, or to what extent, we have the right to infringe on the freedom and/or dignity of other independent beings, human or otherwise. As Roger Ebert noted in his thoughtful review of the film:
“The Shape of Water” shows over and over again the demonizing of the “Other,” the heartlessness of denying living creatures dignity. The film is on certain footing when it’s focusing on the brutal treatment of the monster, the “voicelessness” of Elisa, the lonely pre-Stonewall gay man. They all come from “the future,” before their time. But when the film portrays contemporary real-life events—the African-American couple told they can’t sit at the counter, Strickland’s racist comments to Zelda, the news footage of fire hoses turned on actual civil rights marchers—the fragile fabric of the film is broken. There’s something unsettling about using these things as “atmosphere,” even as the moments dovetail with the overall theme. At its worst, using these real-life events feels like a shorthand, a too-obvious pointing out of the similarities between the real world and the fairy tale, in case we didn’t get it.
Ebert may be talking primarily about a confusion of literary genres here, however a subtle confusion of genres can create a mystifying effect that can lead to psychological and intellectual confusion. That’s why I believe the movie’s influence was so significant: it magnified the impact of ideas in a fictional movie by inclining us to take those same ideas with us into the real world in which we live.
With inter-species sex being presented as completely normal in the Shape of Water, I fully expect that the level of openness to the notion that we shouldn’t stand in the way of “love” [best expressed in the oft-heard slogan “It doesn’t matter who we love, as long as we love”] will increase exponentially as a result of this film, and is likely to soon give rise to a much broader free-love slogan: “It doesn’t matter WHAT we love, as long as we love.” Animal activists may have a fight on their hand arguing that animals can’t give consent. Does a dog give consent when you play frisbee and he wags his tail and jumps to catch it? His owner would likely say of course. Does the dog express “love” for his owner and the owner for his dog? Again, most would say yes. Is that “consent” given the level and degree of animal intelligence? Courts have yet to rule on these fundamental questions.
Nominations were recently announced for the Oscars, and The Shape of Water led all films with an impressive 13 nominations, including Best Picture, Best Actress for star Sally Hawkins, and Best Director for del Toro. And read the glowing reviews – especially what reviewers are saying about the intercourse scene between the slimy fish creature and the mute female protagonist in the movie. From the New York Times:
“You may marvel at just how far Mr. del Toro takes this interspecies romance — all the way, basically — and also at how natural, how un-creepy, how pure and right he makes it seem. And why not?” (From a review in the New York Times by A.O. Scott).
Or, from Forbes Magazine:
And in The Shape of Water, he’s managed to accomplish something very difficult indeed. He’s managed to depict a loving, consummated relationship between Sally Hawkins and a slimy fish creature, and not induce the audience into vomiting. Not only is this most-unconventional relationship not stomach-churning, it’s actually rather beautiful.
It’s not hard to find many other equally-glowing endorsements of a sex scene between a shy, mute human woman and a slimy fish creature. That’s troubling.
During the same-sex debates (mostly over now) some opposing same-sex marriage argued that by divorcing sex from its primary purpose society was opening the door to acceptance (or at least increased tolerance) of polygamy and, eventually bestiality, but they were widely rejected as fallacious “slippery-slope” arguments having no merit. Anyone suggesting a possible connection between the cultural and legal acceptance of same-sex marriage and polygamy and/or bestiality were usually immediately and unanimously condemned, ostracized (even by colleagues) and made to suffer some significant form of punitive consequence.
Take, for example, what happened to Senator Cory Bernardi in Australia in 2012 when he expressed this idea in the Australian Senate. He was immediately forced to step down as parliamentary secretary to the Prime Minister. Here’s what he said:
The next step, quite frankly, is having three people or four people that love each other being able to enter into a permanent union endorsed by society – or any other type of relationship.
Then Bernardi went a step further down the “slippery slope” by saying:
There are even some creepy people out there… [who] say it is okay to have consensual sexual relations between humans and animals. Will that be a future step? In the future will we say, ‘These two creatures love each other and maybe they should be able to be joined in a union? I think that these things are the next step.’
I suspect that there are far more people who are not really put-off or shocked with the idea of inter-species sex as there were even a few years ago. And I believe that’s largely because of the kind of over-simplified cultural mantras we’ve been hearing (and seeing on placards) over and over again like: “Love wins;” or, “It doesn’t matter who you love;” or some other variation of that idea, including the completely meaningless “Love is Love”. But to state the obvious: yes, you can love whoever you want, but you can’t have sex with whoever you love. Love is not one thing.
And let’s be honest, what’s intended with these slogans is indeed “erotic love” and to put it in even earthier terms “carnal sex”….. how do I know that? Because you don’t have to protest with placards or issue press releases to win social, cultural, political, or legal support for platonic love. Absolutely no one has a problem with anyone loving anyone else in a non-sexual way…you know what I mean, loving by being kind and caring and compassionate.
It would benefit us all to read (or reread) C.S. Lewis’ excellent delineation of the main types of love in his little book: The Four Loves which nicely summarizes four kinds of human love–affection, friendship, erotic love, and the love of God. Only one type of love “erotic love” involves sex. Enough said. Consider all of what you’ve just read as background to what comes next, which is the really important part of this article.
Preamble to Part II
Given what looks like an evolving cultural acceptance of being sexual within relationships outside of male-female relationships [relationships in which sexual intimacy has nothing to do with its primary biological purpose of sex – procreation] it shouldn’t come as a surprise that the Trudeau government has just weeks ago voted to keep most forms of bestiality legal in Canada. But you may not know that, since – as far as I know – that fact didn’t make the mainstream news.
On October 5, 2017, the federal Liberal government was given the chance to pass a private member’s Bill that would have banned all forms of sex between people and animals and refused to do so I know…I was pretty shocked to learn that too!
Whether most types of inter-species sex between people and animals will remain legal in Canada is now in the hands of the Supreme Court of Canada. We are currently awaiting a ruling on a bestiality case which the Supreme Court heard in November, 2017. My educated guess is that the Supreme Court will decide to declare that all sex acts with animals are legal except penetration, given how the law is currently written and being interpreted by lower courts. The Supreme court will also likely defer the matter back to parliament, as it did with the issue of protecting unborn children in the 1988 Morgentaler case….we all know how that turned out: 30 years later and parliament has yet to enact a law.
Part 2: The Current Legal Status of Inter-Species Sex in Canada
On June 9, 2016, the B.C. Court of Appeal ruled 6-1 that acts of bestiality are LEGAL in Canada as long as penetration does not happen. That’s how they read the provision on bestiality in the Criminal Code, and regardless of how they may have felt about it personally, all but one judge insisted that it isn’t the role of jurists to broaden the definition in the law to include other types of sexual acts with animals.
Their decision acquitted a B.C. man who had been found guilty of bestiality after compelling the family dog to sexually abuse his 16-year-old stepdaughter. He had smeared peanut butter on her genitals and then videotaped the dog licking her vagina. He appealed the decision to the B.C. Court of Appeal and won. The Crown then sought leave to have the Appeal Court’s decision reviewed by the Supreme Court.
In a comment by Camille Labchuk (who Islanders likely know as an animal rights lawyer, the Executive Director of Animal Justice, and the daughter of well-know Island environmentalist Sharon Labchuk) she called on parliament to correct this situation by amending the Criminal Code definition of bestiality to give it a much broader meaning:
“As of today, Canadian law gives animal abusers a licence to use animals for their own sexual gratification,” said Ms. Labchuk. “The Supreme Court has essentially thrown the ball into Parliament’s court and we’re calling on Parliament to step in immediately to fix our outdated laws and protect vulnerable animals from sexual exploitation.”
I agree, animals shouldn’t be sexually exploited by people, but there’s also the issue of how people shouldn’t be debased and exploited in sexual acts with animals, like that poor 16 yr old step-daughter. At any rate, as luck would have it, Bill C-246 (Modernizing Animal Protections Act) was before Parliament at the time of the B.C. Court of Appeal ruling.
The Bill was described as an enactment that “….amends the Criminal Code to consolidate and modernize various offences against animals.” One such amendment was specifically designed to broaden the definition of “bestiality” to include any sexual activity between a person and an animal and read as follows:
(4) For the purposes of this section, bestiality means sexual activity between a person and an animal.
Liberal MP Arif Virani, Parliamentary Secretary to the Minister of Immigration gives some good back-story to the Bill in a speech to the House he delivered during second reading of the Bill:
In the case of D.L.W., our Supreme Court acquitted a man accused of bestiality where the sexual conduct involved a dog and the man’s teenager stepdaughter. Because the act in question involved a disturbing act of oral sex and not physical penetration, the Supreme Court of Canada overturned the man’s conviction.
In his majority ruling, Justice Cromwell said:
The term bestiality has a well-established legal meaning and refers to sexual intercourse between a human and an animal…. It is manifestly not the role of the courts to expand that definition. Any expansion of criminal liability for this offence is within Parliament’s exclusive domain.
As can be imagined, the public response to this decision was incredulous, not because of the judge’s interpretation—Justice Cromwell was simply applying the law—but because the actual definition of bestiality was so narrow. We do not need to be lawyers, we just need to apply some common sense to recognize that the bestiality prohibition ought to prevent all sexual acts with animals as exploitative. Whether penetration occurs or not is not the issue and should not be determinative.
That is exactly what this bill will address, a legal void. It will expand the definition of bestiality, as the Supreme Court invited this Parliament to do to cover all “sexual activity between a person and an animal”.
A vote was taken at Second Reading in Ottawa on October 5, 2017, and although Liberal MP Arif Virani and a few other Liberal MPs did vote in favour of the Bill, many Conservative MPs and most Liberal MPs did not. Although the Trudeau government could have easily passed this bill, they chose to keep oral sex with animals (or any other kind of sex besides penetration) legal in Canada, with a final vote of 84 MPs in favour and 198 MPs against.
It’s also worth noting that neither Wayne Easter nor Sean Casey voted on October 5 when the Bill was defeated (so we can only speculate on how they would have voted) but both Hon. Robert Morrissey and Hon. Lawrence MacAulay voted to defeat the Bill.
It may still happen that the highest court in the land will overturn the B.C. Court of Appeal and give a much broader interpretation to the term “bestiality” than simply penetration. Camille Labchuk’s group applied for and was granted intervenor status on the case, and argued on behalf of animals before the Supreme Court on November 9, 2017 (a legal first in Canada). You can read their arguments (Factum) here:
This will be a groundbreaking ruling that will decide whether some forms of sexual abuse of animals are acceptable under Canadian criminal law, and whether many types of inter-species sex with animals will remain legal. We can hope for the best, but like I said earlier, I suspect the Court will support the B.C. Appeal Court’s decision and declare that if the law is to be changed, then Parliament will have to make that change. And sadly, we already found out last October where Trudeau’s Liberal government stands on the issue.