The law, penalties and defences for making bestiality pornography in NSW

A Queensland couple has been charged with  engaging in a series of sexual acts involving dogs and capturing it on video.

37-year old Crystal May Hoare and 28-year old Jay Wade Veenstra, 28 are each charged with five counts of engaging in bestiality with 2 dogs over a 12 month period from October 2021 in the Sarina, a coastal locality of the Mackay region in Queensland, and filming the conduct.

The were arrested, charged and taken to a Queensland watch house last month, before being released on conditional bail.

They briefly appeared in court on Monday, at which time the proceedings were adjourned for further mention later this year.

Here in New South Wales, the acts of engaging in or attempting to engage in sexual activity with an animal – known as 'bestiality' – and possessing, producing or disseminating (sharing) bestiality or animal crush material are criminal offences under the law.

Here's an outline of those laws, as well as the maximum penalties and defences that apply.

The Offence of Bestiality in NSW

Under section 79 of the Crimes Act 1900 (NSW), a person who commits an act of bestiality faces a maximum penalty of 14 years' imprisonment.

'Bestiality' is not defined in the Act, but under common law is defined as 'sexual intercourse with an animal'; see R v Brown  (1889) 24 QBD 357.

The common law has has found that bestiality is not limited to sexual penetration to an animal – it can include acts of oral sex and manual stimulation; see R v Bourne  (1952) 36 Cr App R 125. However, the recent decision of  Elnami v Tasmania  [2020] TASSC 54 has thrown this into doubt.

The Offence of Attempted Bestiality in NSW

Section 80  of the Crimes Act 1900 provides that a person who attempts to commit an act of bestiality with any animal faces a maximum penalty of 5 years' imprisonment.

Section 344 of the Act is a catch-all provision which makes clear that, even if the offence is not specifically designated as an 'attempt', "any person who attempts to commit any offence for which a penalty is provided under this Act shall be liable to that penalty".

The meaning of 'attempt'  was explained by Murphy J in Britten v Alpogut  as follows:

Further tests have been provided to attempt to determine whether an attempt occurred including:

• If actions are more than mere preparatory and there is one 'last act' required for the offence to occur; R v Eagleton.
• If a person's conduct demonstrate that they unequivocally and without reasonable doubt actually intend to carry out a crime; R v Baker.
• If a person had mad made 'substantial steps' towards the commission of the offence; R v Stonehouse.

The Offence Of Making Bestiality Pornography in NSW

Section 547E of the Crimes Act makes it an offence punishable by up to 5 years' imprisonment to possess, produce or disseminate bestiality or  animal crush material.

"Bestiality or animal crush material" is defined as material that:

• Depicts or describes bestiality or an animal being crushed, burned, drowned, suffocated, impaled or otherwise killed or subjected to serious injury; and
• Is material that a reasonable person would regard in all the circumstances as being intended or apparently intended to excite or gratify a sexual interest or excite or gratify a sadistic or other perverted interest in violence or cruelty.

An "animal"  is limited to a mammal, a bird or a reptile and does not include insects, spiders or worms.

A person will "produce" material if they:

• Film, photograph, print or otherwise make bestiality or animal crush material, or 
• Alter or manipulate an image for the purpose of making bestiality or animal crush material, or 
• Enter into an agreement or arrangement to do so.

A person will "disseminate" material if they:

• Send, supply, exhibit, transmit or communicate the material to another person, or 
• Make the material available for access by another person, or 
• Enter into an agreement or arrangement to do so.

Section 547E(2) of the Act also outlines an offence for the possession of bestiality or animal crush material, which carries a maximum penalty of 3 years imprisonment. Possession includes accessing material online.

There are a number of defences are outlined in the Act, including circumstances where:

• The defendant did not know, and could not reasonably be expected to have known, that the material the defendant produced, disseminated or possessed was bestiality or animal crush material;
• The defendant was, at the time of the offence, a law enforcement officer acting in the course of the defendant's duties and the conduct of the defendant was reasonable in the circumstances for the purpose of performing the duty;
• The material concerned was classified, whether before or after the commission of the alleged offence, under the Classification (Publications, Films and Computer Games) Act 1995  of the Commonwealth, other than as refused classification (RC).
• The conduct engaged in by the defendant was necessary for or of assistance in conducting scientific, medical or educational research approved, authorised or otherwise permitted under a law of the State or of another State, a Territory or the Commonwealth,

• For an offence involving possession of bestiality or animal crush material, but without limiting the defences above–the material came into the defendant's possession unsolicited and the defendant, as soon as the defendant became aware of its nature, took reasonable steps to get rid of it.
• The conduct was otherwise engaged for the "public benefit" including for purpose of enforcing, administering or monitoring compliance with the law or the administration of justice.

General legal defences

General legal defences including  the defence of duress as well as necessity apply to each of the three bestiality-related offences outlined above.

Where evidence is raised of a general legal defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence does not apply in the circumstances.

The defendant is entitled to an acquittal – in other words, a not guilty verdict – if the prosecution is unable to do this.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.