Critiquing the Conception of “Crimes Against Nature”: The Necessity for a New “Natural” Law

• Author: Richard Jochelson,James Gacek,Alicia Dueck-Read
• Date: 01 March 2022
• Published date: 01 March 2022
• DOI: 10.1177/0306624X20967945
• Subject Matter: Articles

https://doi.org/10.1177/0306624X20967945

International Journal of

Offender Therapy and

Comparative Criminology

2022, Vol. 66(4) 345 –368

© The Author(s) 2020

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DOI: 10.1177/0306624X20967945

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Article

Critiquing the Conception

of “Crimes Against

Nature”: The Necessity

for a New “Natural” Law

James Gacek1, Richard Jochelson2,

and Alicia Dueck-Read2

Abstract

Drawing upon historical developments and legal interpretations of “crimes against

nature” as it relates to bestiality, this paper endeavors to promote further discussions

surrounding the conception of “natural” and/or extant law, by which an understanding

of historical and modern objections to crimes against nature opens them up to the

critique of thin-universalism—that is, that despite disparate socio-moral fundaments,

laws of prohibition coalesce around evangelical totalities. We contend that a paradigm

shift in respect of naturalness is necessitated—naturalness should be packaged and

represented, in part, by the empirical. Thus, conceptions of vulnerability and sentience

rooted in social scientific understandings and in hospitable forms of rights protections

ought to provide a new understanding of governance of the natural. In turn, this

naturalness ought to be reflected in law so long as the boundaries we propose are

not unduly transgressed. If unnatural acts like bestiality have their prohibitions in the

legal tethering points of Judeo-Christian and, later Victorian roots, the new natural

law ought to be apprised of rights-based constitutionalism and informed by green

criminological and animal rights logics. Law, apprised of these ethics, would evolve to

expand protections for animals, human and non-human alike. Laws based on the new

naturalness could protect species and environments as evidence demands.

Keywords

green criminology, law, bestiality, crimes against nature, natural law

1University of Regina, Regina, Canada

2University of Manitoba, Winnipeg, Canada

Corresponding Author:

James Gacek, University of Regina, Classroom Building, 3737 Wascana Parkway, Regina, SK S4S 0A2,

Canada.

Email: James.Gacek@uregina.ca

967945IJOXXX10.1177/0306624X20967945International Journal of Offender Therapy and Comparative CriminologyGacek et al.

research-article2020

346 International Journal of Offender Therapy and Comparative Criminology 66(4)

Introduction: Reclaiming “Naturalness”

Societies proliferate rules: they construct and regulate behavior, and sanction conduct

which transgresses these rules. The governance of behavior can certainly be formal

or informal. In this paper, we focus in on formal regulation, and the role of law in

shaping, reflecting and refracting societal approaches to the treatment of animals in

society, particularly in societies which are governed by formal legal systems, and

especially societies whose governance is informed by conceptions of constitutional

supremacy. In Canada, for example, constitutional documents such as the Canadian

Charter of Rights and Freedoms (1982) outline the rights, duties, and obligations

between government and persons, and delineates the contours of how a free and dem-

ocratic society of the governed should be ordered and maintained. This is not to say

that informal forms of governance do not inure—scholars have written about the

effect of family, the church, the school, the prison and other institutions on behavior

within a society (e.g., see Derrida, 1992; Foucault, 1991) It is simply beyond dispute

that formal legal challenge has led to a number of emancipatory outcomes in the last

decades in a number of contexts—for example, the recognition of same sex marriage

in Canada was a direct result of a constitutional challenges that used the equality

guarantees of the Charter to demand social recognition for same sex rights in this

context (M. v. H., 1999; Reference re Same-Sex Marriage, 2004). One may question

what social transformation lay the groundwork for these legal victories? Is it the

grace of law that allows transformation? The conception that law is “good,” in of

itself, is contested. For example, some argue that media and pop culture often reflect,

and indeed, drive social change many years before landmark legal challenges reflect

and regulate societal values (Cossman, 2007). In any case, formal recognition lays in

abatement until legislatures or courts act or react. One could postulate that morality

fosters these cycles of transformation. Indeed, from recognition of same sex marriage

in Canada through to desegregation of schools in America, morality is often touted as

the leading edge of transformation, and law seems merely to act to reflect, and for-

mally advance these moving tides.

Yet the relation of law to morality complicates matters. One can easily recall

throughout history of particular societies which denigrated or ignored citizens

through law that was considered morally indefensible. As Honoré indicates: “There

can be evil laws and corrupt legal systems. The Third Reich had a legal system.

Apartheid South Africa had a legal system. It is true that not only these societies but

every society has, at least, some unjust laws. These laws and legal systems are

imperfect because, unless rights and duties mean something different in law and

morality, laws and legal systems claim to be morally in order” (Honoré, 2002, pp.

489–490; italics in original; for differing perspectives on the social and legal con-

structions of crime in society, see also Hillyard and Tombs, 2007; Quinney, 1970;

Sellin, 1938; Sutherland, 1940 among others).

There exist ongoing debates of how law is to be explicated, and how law relates to

morality (e.g., see Deane-Drummond, 2015; Hamburger, 1993; Mineur, 2012). There

are debates about how to discern law’s inherent connection to the social (see Gacek &