Attorney argues bestiality charge is ‘unconstitutional’

By Elisa Sand
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The attorney for an Ipswich man accused of bestiality argues the charge is unconstitutional because an animal is considered personal property.

James M. Schumacher, 57, has pleaded not guilty to six felony charges of bestiality, which is defined as engaging in a sexual act with an animal.

He was arrested in July by the Brown County Sheriff’s Office after a farmer near Bath reported finding a man with one of his 4-week-old calves.

According to court documents filed this week by defense attorney Marshall Lovrien, charging a person with bestiality is a violation of the state constitution and the 14th Amendment of the U.S. Constitution.

The 14th Amendment prohibits laws that curtail a person’s privileges or immunities. A person can’t be deprived of life, liberty or property without due process of the law and a person cannot be denied equal protection under the law.

In his argument for a dismissal of the indictment, Lovrien points to recent U.S. Supreme Court rulings that have upheld a person’s right to privacy when it comes to sexual intimacy.

Lovrien points to Lawrence v. Texas and Obergefell v. Hodges to support his argument.

In Lawrence v. Texas, a same-sex couple that was found engaged in a sexual act in their apartment when police were responding to a report of a weapons disturbance. Police filed charges because Texas state law prohibited sexual intercourse with someone of the same sex. Ultimately, the Supreme Court struck down the Texas law ruling it violated the constitution.

In Obergefell v. Hodges, same-sex couples were challenging their right to be married and the Supreme Court ruled in their favor.

In arguing for dismissal of the indictment, Lovrien argues South Dakota’s law criminalizing bestiality is a violation of the 14th amendment because it interferes with a person’s right to engage in private, intimate conduct of his or her choosing. Bestiality involves human intimacy and using an animal as a means to that end — an animal that is legally considered property.

Continuing this argument, Lovrien said, property doesn’t have rights and the state’s bestiality law is merely an attempt to regulate private sexual conduct between a human and a piece of property.

In this case, however, the calves involved were not Schumacher’s. Brown County State’s Attorney Chris White said prosecutors are alleging that the cows belonged to another person.

Schumacher is charged with engaging in a sexual act with one of the calves once between June 1 and July 19, then once July 20 and once July 27. The other three charges stem from alleged sexual acts involving a second calf between April 26, 2016, and Jan. 1, 2017.

Schumacher has asked for a court trial before Judge Scott Myren. That trial is March 7-8. A Feb. 13 hearing has been set to present arguments on this and other pending motions including a motion by the state asking for a trial by jury.

Each count of bestiality is punishable by as much as two years in prison and a $4,000 fine.

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