Bryan James Hathaway, 20, of Superior, was arrested on "a misdemeanour charge of sexual gratification with an animal" after indulging in intercourse with said deceased deer on 11 October.
His attorney, public defender Fredric Anderson, last week filed a motion with a Douglas County court which argued "because the deer was dead, it was not considered an animal and the charge should be dismissed". He wrote: "The statute does not prohibit one from having sex with a carcass."
He further argued that, according to Webster's dictionary, an animal is "any of a kingdom of living beings". If you include carcasses in that definition, Anderson reasoned, "you really go down a slippery slope with absurd results".
Anderson demanded that a judge clarify "what the Legislature intended 'animal' to mean in the statute", insisting: "And the only clear point to draw the line in that definition, I believe, is the point of death."
Assistant district attorney James Boughner countered by saying that the court could indeed use a dictionary to determine the meaning of a word, but isn't obliged to do so. He told Judge Michael Lucci that "when a person's pet dog dies, the person still refers to the dog as his or her dog, not a carcass".
"It stays a dog for some time," Boughner added, noting that Hathaway himself had referred to the dead deer as exactly that, and not a carcass, when confronted by police.
Brougher concluded by stating the "statute was on punishing the human behaviour, not protecting animals".
"It does not seem to draw a line between the living and the dead," he noted. Interpreting the statue to exclude carcasses would, moreover, "also exclude freshly killed animals", Boughner insisted. This, in turn, "could lead to people who commit such acts with animals to kill them".
Boughner's latter point seems to be backed up by Hathaway's previous form, which saw him in April 2005 plead "no contest to one felony charge of mistreatment of an animal for the shooting death of Bambrick, a 26-year-old horse, to have sex with the animal".
Judge Lucci summed the matter up concisely with: "I'm a little surprised this issue hasn't been tackled before in another case." He then promised to render a decision before Hathaway's next court appearance on 1 December.Hathaway faces a possible nine months' jail and a fine of up to $10,000 on the deer sex rap, but if convicted, "could serve a prison term of up to two years because of a previous conviction".