With high rates of sexual violence in the country, it’s not surprising that bestiality exists. (Getty)
In May this year, the Roodepoort magistrate’s court found Mojalesa Plaas Mofokeng guilty of bestiality and sentenced him to eight years in prison. This arose from Mofokeng committing an act of bestiality with the puppy belonging to his neighbour, Fred Sitole, in November 2020.
In South Africa, the offence of bestiality is set out in terms of criminal law (Sexual Offences and Related Matters Amendment Act (Sorma). It is described as an unlawful and intentional act which causes the penetration, to any extent, by the genital organs of X into the mouth, genital organs or anus of an animal. Or an unlawful and intentional act by X which causes the penetration to any extent, by the genital organs of an animal, into the mouth, genital organs or anus of X. The offence also includes the masturbation of an animal unless for scientific or breeding purposes.
Significantly, South African legislation acknowledges bestiality as akin to sexual violations against human victims, such as rape, sexual assault and sexual grooming. This inclusion of bestiality under Sorma reflects the gradual movement of South African law to acknowledge the value of animal lives and their welfare.
This can be seen by comparing the different approaches towards the interests and welfare of animals in older court cases versus more recent ones. For example, in the case of R v Moato in 1947, the judge said that laws which aimed to protect animals at the time were “plainly [in place] to prohibit one legal subject behaving so cruelly to animals that he offends the finer feelings and sensibilities of his fellow humans”.
The predominant view of the judiciary in those times was that mistreatment and violence against animals did not necessarily harm the individual animal but rather the feelings and emotions of those who witnessed the abuse.
In 2016, in NSPCA v Minister of Constitutional Development, Justice Sisi Khampepe, writing for a unanimous quorum in the constitutional court stated that “the rationale behind protecting animal welfare has shifted from merely safeguarding the moral status of humans to placing intrinsic value on animals as individuals”.
With high rates of sexual violence in South Africa, it is not surprising that bestiality exists. Sexual violence is not solely concerned with the physical act or sexual encounter but more predominantly with the exertion of force over an individual whom the perpetrator considers weaker than themselves.
Acting Justice AJ Mathopo recently reiterated this in the constitutional court case of Tshabalala v S, where he referred to the case of Masiya v DPP where it was stated that “[t]oday rape is recognised as being less about sex and more about the expression of power through degradation and the concurrent violation of the victim’s dignity, bodily integrity and privacy”.
When we acknowledge that sexual violence is concerned with dominance and the exertion of power over a vulnerable individual, we can see why many victims and survivors of sexual violence are vulnerable individuals in our society. These vulnerable groups include women, children, persons with disabilities, members of lesbian, gay, bisexual, transgender, intersex, asexual, and queer/questioning people and animals.
Along with sexual offences against human victims, sexual offences against animals are often unreported. The reasons for this are that animals cannot communicate their violation and because the nature of sexual offences is that they are committed in private spaces. Furthermore, some individuals may not be aware that the sexual violation of an animal is an offence in our law.
How then is one prosecuted for a sexual offence against an animal? The charge for committing a sexual offence against an animal falls under section 13 of Sorma and provisions of the Animal Protection Act, which creates crimes involving animal cruelty.
Unfortunately, many cases of violence and sexual violence against animals are not pursued by the National Prosecuting Authority (NPA). This may be for capacity reasons or even ideologically not valuing animals as individuals worth spending resources on. This is where the National Council of Societies for the Prevention of Cruelty to Animals (NSPCA) comes in.
In NSPCA v Minister of Constitutional Development, the constitutional court found that in instances where the NPA decides not to prosecute an offence related to animal cruelty or abuse, the NSPCA has the authority to proceed with a private prosecution. This is not always as positive as expected, because the NSPCA is a not-for-profit entity and depends on donors for funding. Thus, the NSPCA cannot be expected to prosecute all violations of animals as they do not have the financial capacity to do so.
Why should we be pushing for the prosecution of cases of sexual offences against animals? The first reason is that animals are interested in being protected by the law. They think and feel and thus experience pain and emotional distress when violated and harmed. The second reason is that by preventing violence (both physical and sexual) against animals and also prosecuting acts of violence, we are protecting everyone, both animal and human.
‘The Link’
For about three decades, interpersonal violence studies have acknowledged that there is something called “the link”. This is where there is an intersection of violence involving animals, children and women in the home. These studies have further shown that this violence also occurs against other vulnerable individuals, such as older people. This intersection of violence in the home is prevalent in instances of domestic violence against women and violence against children.
In a study by academic Frank Ascione of women in a domestic violence shelter, 38% said that they had a pet before entering the shelter; of these women, 71% reported that their abusive partner had threatened to kill or killed their pet. Ascione’s study also showed how vulnerable individuals who are abused could, in turn, become violators. He found that 58% of women interviewed had children and of those women, 32% reported that their child or children had hurt or killed a pet.
There have also been studies about the abuse of animals as one factor that could predict the future abuse of other humans. An interview with an FBI special agent, Alan Bradley of the FBI’s Behavioural Science Unit, said that in the 1970s, the FBI had interviewed 36 multiple murders in prison. Of these 36 individuals, 36% described the killing and torturing of animals when they were children and 46% admitted to doing this when they were adolescents.
By looking at these intersections of violence against animals and various vulnerable individuals, it can be seen that understanding “the link” and how it can affect a web of individuals is a strong reason why prosecutors should pursue cases of violence against animals. By intervening through sanctions or possibly other rehabilitative measures, we can aim to prevent violence against other animals and other humans.
Sheena Swemmer is the head of the gender justice programme at the Centre for Applied Legal Studies, University of the Witwatersrand.
The views expressed are those of the author and do not necessarily reflect the official policy or position of the Mail & Guardian.
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