This article was last modified on November 27, 2006.


Are Dead Animals Still Animals?

On October 11, 2006, Bryan James Hathaway, 20, of Superior, Wisconsin engaged in sexual activity with the carcass of a deer he found alongside Stinson Avenue. He was charged in Douglas County with one misdemeanor count of sexual gratification with an animal. The misdemeanor charge carries a maximum penalty of nine months in jail and a fine of up to $10,000. If convicted, Hathaway could serve a prison term of up to two years because of a previous conviction.

On April 4, 2005, Hathaway pleaded no contest to one felony charge of mistreatment of an animal for the shooting death of Bambrick, a 26-year-old horse owned by Brenda Egan, to have sex with the animal. He had killed Bambrick on December 6, 2004 in Douglas County. Coincidentally, he had both the same prosecutor and same judge in the 2004 case as in the 2006 case.

While there seems little debate over whether or not Hathaway actually engaged in the sexual conduct with the deer carcass, there is the legal technicality of what the word “animal” means. If the carcass of the deer is not an animal, then Hathaway did not engage in sexual activity with an animal. The following article will detail the defense’s explanation of what “animal” is legally defined as, the judge’s rejection of said definition and a further argument by this author in defense of Bryan Hathaway.

Hathaway’s Defense

Public defender Fredric Anderson argued that because the deer was dead, it was not considered an animal and the charge should be dismissed. “The statute does not prohibit one from having sex with a carcass,” Anderson wrote.

Apparently, the argument had never been raised in court before. “I’m a little surprised this issue hasn’t been tackled before in another case,” Judge Lucci said, indicating that the legal definition had probably never been properly challenged and refined in prior case law.

The Webster’s dictionary defines “animal” as “any of a kingdom of living beings,” Anderson posited, accepting the most literal interpretation. If you include carcasses in that definition, he said, “you really go down a slippery slope with absurd results.”

Anderson argued: When does a turkey cease to be an animal? When the bird is dead? When the turkey is wrapped in plastic packaging in the freezer? When the meat is served, fully cooked? Or in this case, at which point between death and the complete deterioration of the body does an animal cease to be an animal? To choose one point between death and complete decay seems as arbitrary as many of the arguments in abortion law (which we will not even begin to tackle here, as that would certainly be in vain).

A judge should decide what the Wisconsin Legislature intended “animal” to mean in the statute, he said. “And the only clear point to draw the line in that definition, I believe, is the point of death.”

Anderson argued that the statute, which falls under the heading “crimes against sexual morality,” was meant to protect animals. That would be unnecessary in the case of a dead animal.

“If you look at the other crimes that are in this subsection, they all protect against something other than simply things we don’t like or things we find disgusting,” he said. Other crimes in that subsection include incest, bigamy, public fornication and lewd and lascivious behavior. Whether or not these protect things besides “things we don’t like” I will leave at the discretion of the reader, as some would not have any moral objection to bigamy or incest in particular contexts.

Perhaps most unusual about the motion filed on behalf of Hathaway is the reference to a 1980s pop culture film. Anderson includes the line: “As Billy Crystal noted in The Princess Bride (1987), ‘There’s a big difference between mostly dead and all dead.'”

The Prosecution’s Rebuttal

“The common and ordinary meaning of a word can be found in how people actually use the word,” District Attorney Boughner wrote in his response to the motion.

When a person’s pet dog expires, he told Judge Michael Lucci, the owner still refers to the dog as his or her dog, not a carcass. “It stays a dog for some time,” Boughner said. Indeed, the common usage here would be “dog” or “animal”, not “carcass” or “corpse”.

The prosecutor referred to the criminal complaint, in which Hathaway told police he saw the dead deer in the ditch and moved the body into the woods. Hathaway called the victim a dead deer, Boughner said, not a carcass. “It did not lose its essence as a deer, an animal, when it died,” he said.

Boughner said the focus of the statute was on punishing the human behavior, not protecting animals. “It does not seem to draw a line between the living and the dead,” he said.

Interpreting the statute to exclude dead animals would also exclude freshly killed animals, Boughner said. That, he said, could lead to people who commit such acts with animals to kill them. This point may be particularly relevent, as Hathaway had done precisely this very thing in his 2004 incident.

Judge’s Decision

Judge Michael Lucci ultimately came down entirely in favor of the prosecution. In a memorandum, he wrote the primary focus of the law was protecting sexual morality in the community, not protecting animals. “It’s essentially the legislature’s effort to codify what is legally unacceptable in society with respect to human behavior,” he wrote, and as such the law would include situations “involving even dead animals.”

Lucci also disagreed with the defense’s literal definition of the word “animal”. To go strictly by the dictionary definition of the word, he wrote, the statute could be expanded to include human beings (as human beings are, in fact, animals under the literal definition). Therefore, the statute could be interpreted to prohibit a person from committing an act of sexual gratification with another person, which would be “absurd.”

The court can consider the “common sense” and ordinary meaning of the word based on common parlance, Judge Lucci wrote, rather than a dictionary definition. In addition, he pointed out, the Wisconsin Legislature put language in the statute itself that is specific enough to enable a court or jury to decide if the law had been broken. The statute lists a number of animal body parts that would have to be involved for the law to be violated.

“It’s certainly reasonable to conclude that it’s possible for a person to engage in such behavior even with a dead animal so long as enough of the animal remains for such a determination to be made,” Lucci wrote.

Counter-Arguments

While this author fully understands the position of the judge and prosecutor, some issues remain unresolved in the law, and they are issues I feel ought to be raised. Three in particular I would like to focus on are as follows:

The observation that a literal definition of the word “animal” includes people is a very good and valid point, but I feel the wrong conclusion was drawn from this. The judge chose this as an excuse to reject the defense’s idea that a carcass is not an animal and to assert that a “common sense” definition of “animal” (which excludes people but includes carcasses) should be used. But what the judge failed to realize is that he pointed out another flaw in the statute, and actually supported the contention that the original wording was vague. Whether it should be revised to include “dead animals” or not, the wording would be much more clear if stated as “animals other than humans”, as most people would now agree that humans are, in fact, animals. The absurd situation he describes could well happen if the statute is left unrevised.

The prosecutor argued that protecting living animals but not dead animals would lead to zoophiles killing animals for sex, to use the alleged loophole to escape prosecution. But this is ridiculous, as animals are already protected from harm under other laws. Hathaway had been charged with one of these laws upon killing the horse in 2004. Furthermore, the killing of the horse was a felony and the sexual act with the deer carcass was a misdemeanor — so avoiding the sexual deviancy law would actually trap the perpetrator in an even more serious situation.

An interesting distinction is made clear when you compare the laws involving animals to the laws involving people. If the judge is interpreting the statute in this case correctly, the law does not vary between animals that are living and those that are dead. Yet, with human beings, whether the person is alive or dead makes a world of difference. Sexual assault of a living person is “rape”, whereas sexual assault of a corpse is “abuse of a corpse”. The hiding of a living person is “kidnapping” or “false imprisonment”, but the same thing with a corpse is “hiding a corpse”. If human beings have distinctions (and with these distinctions, the crimes against corpses are much less serious), should animals not also have distinctions to make cruelty to living animals more serious than those that are deceased?

Humans and Other Animals

Let us assume that distinctions should be made between living persons and dead persons, as the law would have us believe. A living person has far more rights than a dead person does, surely, as the dead person can no longer be the legal owner of property, for example, or be legally married. On what basis would animals that are dead have the same rights as those that are living (ignoring that animals cannot legally possess things or be married)?

An argument could be made that a living person has a soul, but a dead person does not, while animals (living or dead) never possess a soul at all. Theologically, this might carry some weight, but legally you would be hard-pressed to use any argument involving “souls” in a court of law. If not souls, what legal basis signifies the difference?

To my knowledge, there is none. I would not argue that animals are on the same level as human beings legally, but with regards to sex laws or violence the species of a creature ought to make little difference if the reason behind the law is the same for either species. I think the reason “rape” is illegal is the same reason sexually assaulting an animal is illegal, for the most part. Therefore, I think it’s quite clear if “abuse of a corpse” is less serious than “rape”, then animals ought to have some distinction between “animal abuse” and “abuse of a carcass”, as well.

That no such distinction of the law exists currently is not the fault of the defendant, Bryan Hathaway, and he should not be punished for a crime that ought to be distinct but clearly is not.

Conclusion

Both sides have made excellent points in this case. Personally, I believe the defense worded their arguments poorly and this resulted in an easy dismissal from the judge. Common sense has won over semantic sophistry, and it probably should. But a similar defense with another approach, not unlike what I have outlined, might have resulted differently.

Hathaway returns to court December 1, 2006, and will have another court date after that before the mess is sorted out. If I were to predict the outcome of this trial, I would say in the short term Hathaway loses and receives punishment for receiving sexual gratification from the deer carcass. However, in the long run, I do not doubt the Wisconsin Legislature will make some refinements to the law and will vindicate the defense after the fact. Perhaps years from now, the governor will have no choice but to pardon Bryan Hathaway?

Also try another article under Philosophical
or another one of the writings of Gavin.

One Response to “Are Dead Animals Still Animals?”

  1. Carsten Says:

    I agree with your line of reasoning concerning animal-carcasses.

    Law should protect citizens from aggressions and punish the offender for causing suffering or loss.

    In this case:
    1) Has Hathaway himself suffered? Oh no!
    2) Has the carcass suffered? No
    Conclusion : No suffering caused, no punishment necessary

    But the judge has another goal: punishing not acceptable behavior.
    And here my line of defense would be (probably in vain as the need of some people to deem others is VERY strong):

    Again: Law should protect citizens from aggressions and punish the offender for causing suffering or loss.
    The only suffering Hathaway is blamed for is obviously in the head of some people because THEY do consider his doing as not acceptable.
    But it is not even he who caused this suffering because it is of those peoples own making: It is their own resentment which they are suffering from.
    Is it really possible to send Hathaway to jail only because he did something which disturbed the mind of others? Should we then not be send to jail altogether because we at least once a day annoy somebody with our doing or not doing ? Is such a law a constructive tool to build a free country?

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