When we decided in 2013 to file a lawsuit against §3 Satz 1 Nummer 13 TierSchG we had to consider a situation that at first seemed to be a dilemma: To protest against a law that forbids to “force animals into a behavior that’s inappropriate to their species” is the opposite of what all we zoos stick up for in society and animal welfare work. So apparently it would be a mistake to attack this law, if only there hadn’t been the impression in society that we were the “target” of this prohibition.
But this law was named in the (low profile) public discussion a “zoophilia ban” and those, who wanted a “zoophilia ban” celebrated this law as a success of their endeavor. It was obvious that everyone thought we were meant by this ban and be it only because of the horror stories which are spread about us (basically comparable to the horror stories that are nowadays spread by reactionary circles about refugees) and that caused drawing a wrong picture of us in certain parts of the society. So not to fight this law which quite clearly “meant” us would have been just as unwise. Nevertheless, a closer consideration of this apparent dilemma showed two possible prospects of success deriving of a constitutional complaint:
- The appeal is granted. The Federal Constitutional Court would come to the conclusion that we were “meant” by thislaw and this would be considered as a inappropriate restriction of the right ?on sexual self-determination . The law would be history and we would have achieved a moderate political success.
- The appeal is not accepted for decision. The Federal Constitutional Court would state that we are not meant by the law, but only those people who apply sexual violence to animals (as by forcing them to sex). Then our constitutional complaint would indeed seem to be failed, but the clarification of the Constitutional Court would mean that our goal, to have sexual partnerships between humans and other animals regarded as legal in the public opinion again, would still be achieved.
Accordingly we would only have failed at the Constitutional Court, if the Federal Constitutional Court accepted the complaint for the decision and then rejected it (e.g. as it was in the case of the contentious incest sentence).
With the decision of the second Senate, by some important wordings, our second possible prospect of success has now become reality. The first important wording is:
The concept of the inappropriate behaviour is closely related to the matter of fact of “forcing” to such a behaviour, which unfolds a matter-limitative fact. After the law grounds “forcing” should be possible by physical force as well as by other means (cf. BTDrucks 17/11811, p. 28). An interpretation based on the systematics of the §3 TierSchG and in regard of the purpose of the ban proves, that this different way of coercion must be a behaviour which is comparable to the use of physical force.
Consequently, the interspecific sexual relationships which zoophile people often have with their animal partners cannot be meant. The legal text does not state that the act of forcing is an essential element of sexual actions between humans and other animals (as quotation mark-animal-welfarists do), but it requires the proof of (this) force by the authorities.
Also the concept of the “species-appropriate ” or “not-species-appropriate” is not foreign to the law. It is a common legal term in the animals protection right which refers to the keeping and housing of animals (cf. §2 TierSchG, §8 TierSchHuV).
This is a not to be underestimated interpretation and part of a detailed definition of the meaning of the term “species-inappropriate”, because the assumption that sexual actions between different animal species were generally “not species-appropriate“ is not only not proven, but can also be fundamentally questioned on the base of actual field researches.
Another indication of the court provides a further confirmation for the impunity of zoophile actions:
Even if §3 Satz 1 No. 13 TierSchG encroaches in the sexual self-determination of the appellant, §3 Satz 1 No. 13 TierSchG is only given, if the animal is forced to a species-inappropriate behaviour. Furthermore the legislator does not apply criminal law, but moulds the norm as an administrative offence, whose prosecution and punishment follows the principles of appropriateness (§47 paragraph 1 sentence 1 OWiG) and is therefore in the dutiful judgement of the prosecuting agency. Besides it might be, that the presence of, not necessarily exceptional circumstances, the degree of wrongdoing of the offense and the consequent potential risk can be so low, that a pursuit and punishment seems not compulsory (cf. Seitz, in: Göhler, OWiG, 16th ed. in 2012, §47 Rn. 2).
A variety of expert reports
about the animal partners of zoophile people have pointed out, that these animals are generally in the best physical and psychological shape. Some zoos already outed themselves years ago to their veterinarians (also in order to prevent zoonoses). Therefore also the veterenarian can give a realistic assessment of the human-animal-relationship and the potential danger to the animal by his/her zoophile person, respectively it has to be rated low enough, so that usually a penalty is not imposed.
Altogether, the decision of the Federal Constitutional Court served us well is indeed a reason for celebration. Our many thanks for helping bringing this project this far are valid for both zoos which have made themselves available with their real names as complainants, the experts who provided certificates for us on the subject animal and human sexuality and of course to all who have made this constitutional complaint possible by their financial support in the first place.