Tuesday, September 29, 2009

New Jersey Judge Explores the Meaning of Bestiality and New Jersey Criminal Law

Judge of the Day: James Morley


Here's an interesting question. How do we know that animals involved in bestiality don't actually like it? This question was recently on the mind of one New Jersey jurist.

From the Philadelphia Daily News:

During a bizarre hearing [in Burlington County, NJ], a Superior Court judge dismissed animal-cruelty charges against a Moorestown police officer accused of sticking his penis into the mouths of five calves in rural Southampton in 2006, claiming a grand jury couldn't infer whether the cows had been "tormented" or "puzzled" by the situation or even irritated that they'd been duped out of a meal.

"If the cow had the cognitive ability to form thought and speak, would it say, 'Where's the milk? I'm not getting any milk,' " Judge James J. Morley asked.

Children, Morley said, seemed "comforted" when given pacifiers, but there's no way to know what bovine minds thought of Robert Melia Jr. substituting his member for a cow's teat.

"They [children] enjoy the act of suckling," the judge said. "Cows may be of a different disposition."

In its weirdness, this is all very Ally McBeal-ish (although too explicit for that show).

So how did the prosecutor feel about all this?

Burlington County Assistant County Prosecutor Kevin Morgan was certainly irritated by the ruling, claiming the grand jury didn't see the videos of the alleged incident, including one in which one hungry calf allegedly head-butts Melia in the stomach.

Should the alleged head-butt be construed as an expression of dissent? Or perhaps the calf just wished that Melia were more well-endowed?

"I think any reasonable juror could infer that a man's penis in the mouth of a calf is torment," Morgan argued. "It's a crime against nature."

Ah, but what is a crime against nature? Many sexual acts once viewed as "crimes against nature" are now perfectly acceptable. If at least some human beings enjoy administering fellatio, how can we say -- as a per se rule -- that all cows do not?

Here's the legal reason this matters:

Although a bill was introduced in 2005 to ban bestiality, New Jersey still has no explicit ban on the sexual penetration of animals, which is why the Burlington County Prosecutor's Office charged Melia with animal cruelty.
We're with Judge Morley on this. If New Jersey had a law on the books criminalizing sexual penetration of animals, then perhaps Melia would be guilty. But in this case, where Melia is charged only with animal cruelty, shouldn't the rule of lenity be applied? The ambiguous statute should be interpreted in favor of the defendant.
Morley said it was questionable whether Melia's alleged crimes against cows, although "disgusting," fit the definitions in the animal-cruelty statute.
"I'm not saying it's OK," Morley said. "This is a legal question for me. It's not a questions of morals. It's not a question of hygiene. It's not a question of how people should conduct themselves."

Indeed. Mouth-f**king a cow may not make you a model citizen. But should you go to jail for it -- especially if you live in a state that does not explicitly prohibit sexual penetration of animals?

Morgan, the prosecutor, said in court that the owner of the cows was "very upset" by the incident.

Trespass to chattels? Maybe. Animal cruelty? Surely not.
"If the cock doesn't fit, you must acquit."

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