Abstract
Criminal provisions governing the treatment of animals collectively embody inconsistencies that reflect deep-seated ambivalence about who counts as the victim of animal cruelty, what constitutes the wrong of such cruelty, and what role punishment ought to play in response to it. In the first part, I shall sketch how animal cruelty laws embody tensions and contradictions that make manifest the criminal law’s need for philosophical clarity. In the second part, I shall argue that one way to bring a modicum of order to animal cruelty provisions is to recognize that their cross-cutting prohibitions and permissions respond to, and perhaps exploit, competing understandings of whether one, some, or all of the five principles of legislation appropriately inform the reach of the criminal law. I shall, accordingly, unpack the significant doctrinal disagreements about when and why we should punish animal abusers by working through the ways in which animal cruelty provisions appear to be responsive to inconsistent views about the very point of the criminal law.
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Notes
- 1.
These principles include (1) the Principle of Democracy, (2) the Harm Principle, (3) the Offense Principle, (4) the Paternalism Principle, and (5) the Legal Moralism Principle.
- 2.
Federal sources of animal protections also reside within the Fish and Wildlife Act (16 U.S.C. §§ 741-754a (2012)), as well as within numerous conservation statutes. These provisions, however, do not embody protections for individual animals, except only incidentally; they rather seek to regulate the harvesting of, or activities that have an impact on, larger collectivities of animals, whole species, habitats essential to species preservation, and so on.
- 3.
- 4.
See, for example, Me. Rev. Stat. Ann. tit. 17, § 1034 (2018) (allowing issuance of search warrants to humane agents).
- 5.
See, for example, Me. Rev. Stat. Ann. tit. 7, § 4018 (2018) (granting veterinarians immunity for reporting or testifying about suspected animal cruelty); Mich. Comp. Laws Ann. § 333.18827 (West 2018); Or. Rev. Stat. Ann. § 686.445 (West 2018).
- 6.
See, for example, 510 Ill. Comp. Stat. Ann. 70/3.03(c) (West 2018) (allowing courts to order psychiatric evaluations of persons convicted of depictions of animal cruelty).
- 7.
See, for example, La. Stat. Ann. § 14:102.2(c) (2018) (requiring bonds to cover animal care costs for 30 days).
- 8.
See, for example, Ga. Code Ann. § 4-11-9.3(b) (West 2018) (allowing liens for animal impoundments).
- 9.
See, for example, Cal. Penal Code § 597(f) (West 2018) (requiring forfeiture of animal upon conviction).
- 10.
Rhode Island was the first to introduce legislation containing an offender registration provision (H.B. 7789 at 4-1-46(d), 2004 Gen. Assembly (R.I. 2004); H.B. 5817 at 4-23-23(d), 2003 Gen. Assembly (R.I. 2003); Otto 2005, 157 n. 70). See also, S.B. 1232, 85th Leg. (Tx. 2017); Tex. Code Crim. Proc. Ann. art. 62.001(5) (West 2017) (categorizing bestiality as a “reportable conviction or adjudication” for a sexual offender registration program).
- 11.
While the term “animal cruelty” is often used within state and federal provisions to refer solely to physical abuse, torture, and neglect (perpetrated intentionally or recklessly), I shall employ the term more generously and shall describe “animal cruelty laws” as all substantive and procedural criminal law enactments that have been devised in answer to forms of animal alteration, injury, neglect, and suffering.
- 12.
Thus, for example, the Animal Welfare Act (7 U.S.C. § 2131(g) (2012)) exempts from the definition of an “animal” birds, rats, and mice that are “bred for use in research.”
- 13.
Utah has similarly excluded livestock from the definition of “animals,” “if the conduct toward the creature, and the care provided to the creature, is in accordance with accepted animal husbandry practices or customary farming practices” (Utah Code Ann. § 76-9-301 (11)(b)(ii) (West 2018)).
- 14.
For another example of a state that varies the meaning of “animal” between pet rodents and rodents considered pests, see Wisconsin, which prohibits cruelty to rodents except when poison is used on them within one’s own premises for purposes of pest control (Wis. Stat. Ann. § 951.06 (West 2018)).
- 15.
Versions of this puzzle reappear in numerous animal cruelty statutes. For example, in Illinois, “aggravated cruelty,” a felony, is only possible in cases that involve the abuse of a “companion animal” (defined as an animal “commonly considered to be, or is considered by the owner to be, a pet”) (510 Ill. Comp. Stat. Ann. 70/2.01a (West 2018); 510 Ill. Comp. Stat. Ann. 70/3.02 (West 2018)). Thus, one who tortures a pet rabbit in Illinois invites felony liability, while one who tortures an ensnared wild rabbit invites only misdemeanor liability.
- 16.
As several authors have made clear, while at least 13 states do not statutorily exempt either agricultural practices or animal experimentation from their anti-cruelty provisions, courts in those states have interpreted these statutes not to prohibit the infliction of even extreme suffering so long as it is incidental to accepted practices (Francione 1996, p. 58; Ibrahim 2006, pp. 191–194).
- 17.
“Anti-cruelty statues … are intended to protect animals from the kinds of behavior that no responsible hunter or farmer would defend” (Frasch et al. 1999, pp. 75–76).
- 18.
For example, Illinois’ Humane Care for Animal Act (510 Ill. Comp. Stat. Ann. 70/3.03 (West 2018)), which has been celebrated as one of the five toughest animal cruelty prevention measures in the nation by the Animal Legal Defense Fund, explicitly states:
-
(b) For the purposes of this Section, ‘animal torture’ does not include any death, harm, or injury caused to any animal by any of the following activities:
-
…
-
(3) any alteration or destruction of any animal by any person for any legitimate purpose, including, but not limited to: castration, culling, declawing, defanging, ear cropping, euthanasia, gelding, grooming, neutering, polling, shearing, shoeing, slaughtering, spaying, tail docking, and vivisection.
-
- 19.
“28 states have laws that either prohibit leaving an animal in confined vehicle[s] under dangerous conditions or provide civil immunity (protection from being sued) for a person who rescues a distressed animal from a vehicle” (Wisch 2018).
- 20.
In State v. Cleve, for example, a defendant was convicted of animal cruelty after snaring two deer in ways that caused one to die of strangulation and the other to die of fatigue, starvation, or dehydration. The New Mexico Supreme Court reversed the defendant’s conviction on the basis that the state game and fish laws preempted the state’s animal cruelty laws. As the court observed, otherwise “the lawful hunting of deer would appear to subject [all] hunter[s] to potential prosecution for cruelty to animals” (ibid., p. 36).
- 21.
See, for example, Maine’s Animal Welfare Act (Me. Rev. Stat. Ann. tit. 7, § 3906-C (2017)), which specifies the membership and role of an Animal Welfare Advisory Committee. See also the Baltimore Animal Services Advisory Commission which “advise[s] the County Council and the County Executive on issues pertaining to animal care and welfare” (Baltimore County Code § 3-3-2401), as well as the Kankakee County Animal Welfare Advisory Committee which consists of nine members who advise the Kankakee County Board (Illinois) (Shapiro 2017).
- 22.
See, for example, Colo. Rev. Stat. Ann. §§ 18-9-201.5, 18-9-202 (2)(a.5)(VII) (West 2018); Mont. Code Ann. § 45-8-211(4)(b) (West 2017); Utah Code Ann. § 76-9-301(1)(b)(ii) (West 2018).
- 23.
See, for example, Neb. Rev. Stat. Ann. § 28-1013(8) (West 2018); Wyo. Stat. Ann. § 6-3-203(f) (West 2018).
- 24.
See, for example, Mich. Comp. Laws Ann. § 750.50 (11)(d) (West 2018); Mont. Code Ann § 45-8-211(4)(c) (West 2017); Or. Rev. Stat. Ann. § 167.335(2) (West 2018).
- 25.
See, for example, Me. Rev. Stat. Ann. tit. 7, § 4011 I-A (2018) (also permitting the shooting of one’s own cats and dogs).
- 26.
See, for example, Alaska Stat. Ann. § 11.61.140(c)(3) (West 2018); Conn. Gen. Stat. Ann. § 53-247(b) (West 2018).
- 27.
See, for example, Idaho Code Ann. § 25-3514(3) (West 2018); Tex. Penal Code Ann. § 42.09(e) (West 2017).
- 28.
This taxonomy owes a debt to Luis Chiesa’s similar effort to explain animal cruelty offenses in terms of five distinct social interests that are implicated by the injurious treatment of animals (Chiesa 2008, pp. 30–50). Others have similarly recognized some combination of these interests as doing work to explain various kinds of animal protections (Ibrahim 2006; Livingston 2001; Madeline 2000).
- 29.
This is the position that Robert Bork ultimately took in defending majoritarianism as the onlyprincipled basis for settling contested questions of law (Bork 1971, pp. 1–35). Similarly, John Ely insisted that “as between courts and legislatures, it is clear that the latter are better situated to reflect consensus,” and absent objective moral values that could constrain either individual citizens or legislators, governance by consensus is the best that can be hoped for (Ely 1980, p. 67). On both Bork’s and Ely’s views, then, if the process by which values compete is kept democratic, then whatever the outcome of that competition, it will be fair and just in the only sense in which those terms make sense. For a critique of the “relativist jurisprudence” inherent in these views, see Hurd (1988, pp. 1417–1510).
- 30.
This vague formulation clearly disguises large issues concerning how to preserve the consent of the people when direct democracy is replaced with representative democracy; when the views and values of representatives often have little or no direct impact on the formulation of legislation upon which those representatives are asked to vote; when legislators often vote for legislation without any real appreciation of its justification or impact; when legislators have conflicting reasons for, and intentions with regard to, legislation for which they vote so as to defeat any notion that there is any shared majority intention with regard to the legislation in question; and when not all legislators vote for all legislation so as to leave at least some constituencies altogether unrepresented in the legislative process.
- 31.
Today, special criminal provisions protect service animals for much the same reason that horses were protected in the nineteenth century, namely, because they are essential to the full participation of their owners in the life of the community. See, for example, Col. Colo. Rev. Stat. Ann. §§ 18-9-202 (2)(b)(III)(d)(I) (West 2018). (“If a person is convicted of cruelty to a service animal … the court shall order him or her to make restitution to the agency or individual owning the service animal for any veterinary bills and replacement costs of the service animal if it is disabled or killed as a result of the cruelty to animals incident.”)
- 32.
But see Chiesa (2008, p. 62) (warning against over-stating the degree to which modern animal cruelty statutes perpetuate a property-based conception of animals).
- 33.
“Human interests are protected by rights in general and by the right to own property in particular …. As far as the law is concerned, [a conflict between human and animal interests] is identical to that between a person and her shoe” (Francione 1996, p. 127). It follows that “[b]y viewing animals as mere objects, animal welfare laws, like property laws, allow owners to determine the ‘proper uses’ of their animal property” (Madeline 2000, p. 329 n. 129).
- 34.
See generally Lockwood and Ascione (1998) (a collection of studies demonstrating the correlation between animal abuse and human-directed violence).
- 35.
See also Chiesa (2008, p. 32).
- 36.
Senator Cohen’s statement references studies by The National Research Council and the Federal Bureau of Investigation that demonstrate significant connections between child abuse and childhood cruelty to animals and between childhood cruelty to animals and violence to others during the perpetrator’s life (142 Cong. Rec. S4630-05). As William Ritter recounts, 25 percent of male offenders and 36 percent of female offenders incarcerated for violent crimes report prior histories of animal cruelty, and 48 percent of convicted rapists and 30 percent of convicted child molesters admit to childhood animal abuse (Ritter1996). See also Bershadker and Clark 2015.
- 37.
Recall Joel Feinberg’s famous “ride on a bus”—an exercise designed to persuade readers of the legitimacy of employing criminal law to punish and prevent conduct that causes non-de minimis affronts to the senses, strong sensations of disgust, shocks to moral sensibilities, inducements of annoyance, and significant anxiety (Feinberg 1985, pp. 10–13).
- 38.
“Thus, many early animal welfare laws were housed in chapters of the criminal code entitled, ‘Of Offenses Against Chastity, Decency and Morality.’ This was the case in New Hampshire, Minnesota, Michigan, and Pennsylvania among others” (Favre 1993, p. 11).
- 39.
California Senate Bill 313, known as theCircus Cruelty Prevention Act, was recently introduced by Senator Ben Hueso to prohibit the use of wild or exotic animals in traveling acts. Among the rationales for this Act is that those who witness animal abuse become desensitized to cruelty and thus impoverished in their empathetic capacities. Numerous studies of childhood exposure to animalabuse support this claim. For useful summaries of these, see Ascione and Arkow (1999) and Linzey (2009).
- 40.
In United States v. Stevens, when “analyzing the constitutionality of a statute regulating videos depicting animal cruelty, [Justice Alito] stated that the most relevant prior decisions of the United States Supreme Court concerned child pornography” (Serafino 2011, p. 1124). Both acts involve “record[ing] the actual commission of a criminal act” that “inflicts severe physical injury” (Stevens, p. 494 (Alito, J., dissenting)).
- 41.
This case inspired Luis Chiesa’s insightful examination and critique of anti-cruelty offenses (Chiesa 2008, pp. 1–68).
- 42.
See, for example, New York’s “Buster’s Law” (N.Y. Agric. & Mkts. Law § 353-a (McKinney 2018)), which reserves the crime of aggravated cruelty, which alone merits felony liability, for injurious act to a companion animal.
- 43.
Additionally, “hoarders fail to acknowledge the … negative effect of their behavior on their own … health and wellbeing” (Arluke and Killeen 2009, p. 112).
- 44.
- 45.
- 46.
It is worth recognizing that there is logical space for a second version of this theory that effectively collapses the distinction between paternalism andlegal moralism. Were one to believe that criminal legislation is an appropriate means of safeguarding the moral well-being of individuals, rather than their health, welfare, economic well-being, or psychological interests, then the demands placed on the criminal law by paternalism would be co-extensive with those oflegal moralism. Gerald Dworkin labels such a theory “moral paternalism” and very capably explores its implications and problems (Dworkin 2005, pp. 305–319).
- 47.
Still, in Chiesa’s view:
[I]t is a strategic blunder to ignore that … people “virtually universally” accept the proposition that “the primary purpose of [anti-cruelty] laws is to protect animals.” Thus, instead of decrying statutes that criminalize animal abuse as another example of how animals are treated as “fungible” and ‘disposable’ goods, we should argue against the existence of the many exemptions that plague such laws by tapping into the basic sentiment that has led people to call for enactment of anti-cruelty statutes in the first place. (Chiesa 2008, p. 62; quoting Tannenbaum 1995, p. 580; Bryant 2006, p. 76)
- 48.
Special thanks to Heather Simmons, Stephanie Davidson, and the rest of the research team at the University of Illinois College of Law Library for their very helpful and expeditious research assistance. Thanks also to Lauren DeCarlo (Illinois Class of 2020) for her excellent editing and bibliographic assistance. And much appreciation to Adam Kolber for his thoughtful comments on the piece.
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Hurd, H.M. (2019). Crimes Against Animals. In: Alexander, L., Kessler Ferzan, K. (eds) The Palgrave Handbook of Applied Ethics and the Criminal Law. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-22811-8_4
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