The Supreme Court of Canada ruled Thursday the Criminal Code charge of bestiality must require the element of penetration, and that acts such as oral sex with an animal are not part of the offence — unless Parliament chooses to change the law.

“Penetration has always been understood to be an essential element of bestiality,” Justice Thomas Cromwell said, writing for the majority. “Parliament adopted that term without adding a definition of it and the legislative history and evolution of the relevant provisions show no intent to depart from the well-understood legal meaning of the term.”

The decision was 6-1, with Justice Rosalie Abella dissenting.

The ruling is a blow to the burgeoning animal law movement, which had argued that any sexual activity between an animal and a human should be considered bestiality, and therefore illegal.

Camille Labchuk, head of the non-profit group Animal Justice, said, in the foyer of the Supreme Court building in Ottawa, “I think the decision is a wake-up call that the laws protecting animals in Canada are so severely out of date that the Supreme Court was forced to decide that some types of sexual abuse of animals are actually legal.”

The facts of the case, known as Crown v. D.L.W., are disturbing. A publication ban on the offender’s name protects the identities of his two stepdaughters who were underage teens when D.L.W. began molesting them. He is currently is serving a 16-year jail sentence for sexually assaulting his stepdaughters over a period of nearly ten years.

D.L.W. began assaulting the girls by sexual touching and intercourse starting when each turned 12. During four incidents he included the family dog, and once tried to have the dog penetrate one of the girls when she was 15 or 16, but the attempt failed because the animal had been neutered. He then filmed the dog filmed licking peanut butter from his stepdaughter’s vagina.

The trial judge found D.L.W. guilty of bestiality, a charge that added two years to his sentence, even though no penetration had occurred and there was no evidence the dog had been harmed. In his judgement Justice Selwyn Romilly wrote: “Physical harm is not an essential element of bestiality … Members of our society have a responsibility to treat animals humanely.”

No one is arguing D.L.W. doesn’t deserve a lengthy prison term.

But D.L.W. appealed the bestiality charge that had increased his sentence from 14 years to 16. He was successful in a 2-1 decision from the B.C. Court of Appeal.

Two of the appeal judges found that when Parliament in 1955 separated the offence of bestiality from an older crime known as buggery — an archaic term that applied to anyone engaging in anal intercourse with a human or sexual penetration of an animal — it logically followed the new crime of bestiality must retain the element of penetration.

But the Crown argued before seven justices of the Supreme Court there should be no requirement for penetration in a bestiality charge because the law could lead to absurdities that Parliament never intended. No penetration could mean, for instance, a child could be enticed by an adult into having oral sex with an animal without any crime occurring.

However, the top court Thursday was adamant that if the law is wrong, it must be changed by Parliament, not the judiciary. “Creating and defining crimes is for Parliament; the courts must not expand the scope of criminal liability beyond that established by Parliament.”

The ruling means that D.L.W., a religious man who met his new family in church, and who beat at least one of his stepdaughters with a two-by-four if she refused to participate in sex with him, will have two years knocked off his sentence.

Nowhere in the Crown’s submission was any plea made to consider the dog’s abuse. That is why it was extraordinary for the top court to agree in November to give the group Animal Justice intervener status in order to make a case for the rights of the dog.

Both the majority of the court and dissenter Abella mentioned Animal Justice’s submission in their judgments, but they threw the matter back to Parliament.

That’s what Liberal MP Nathaniel Erskine-Smith is doing with a piece of legislation called C-246, the Modernizing Animal Protections Act.

“It’s frustrating the laws are so outdated,” he said in the courthouse foyer Thursday. His bill would change “a number of things related to animal fighting and making it easier to prosecute deplorable puppy mill provisions, but with respect to bestiality in particular, it adopts the Australia definition which criminalizes all sexual activities between humans and animals.”

But Erskine-Smith’s legislation, which would also ban the importation of shark fins and cat and dog fur, is a private member’s bill. His government is not supporting him even though similar laws, without the bestiality section, were sponsored by Liberal justice ministers in the past, but failed usually due to being killed by an election call.

It doesn’t mean Erskine-Smith’s Liberal colleagues would vote his proposed legislation down in a free vote, if the bill even makes it to committee stage in September. But he admits there has been opposition to similar bills from hunters’ and anglers’ associations.