Chapter 8 Animal Cruelty, Crimes, and the Constitution
"The essence of humanity's dilemma is that we evolved genetically to accept one truth and discovered another."
—E.O. Wilson
In 1641, an early American settlement called the Massachusetts Bay Colony passed a law called "Body of Liberties." According to this law, "No man shall exercise any Tyranny or Cruelty towards any bruit Creature which are usually kept for man's use."1 In 1862, in State v. Avery,2 a man was criminally charged for whipping a horse and inflicting pain.
Despite early and continuing views that animal cruelty should be circumscribed, the national government failed to track animal abuse until 2014,3 when the Federal Bureau of Investigation (FBI) entered a separate category in its database for animal cruelty; this was an aspect of the FBI's Uniform Crime Report National Incident Based Reporting System. Law enforcement now provides the FBI with incident reports on four categories: simple or gross neglect; intentional abuse and torture; organized abuse, including dogfighting and cockfighting; and animal sexual abuse.4 The FBI has announced that animal cruelty may be charged as a Group A felony, along with homicide and arson.
HUMAN AND ANIMAL ABUSE LINK
Many people are aware of the link between animal abuse and human abuse.5 Serial killers often have a history of animal abuse;6 the three major predictors of serial killers are animal cruelty, bed-wetting, and fire starting. The National Center for Prosecution of Animal Abuse (NCPAA),7 part of the National District Attorneys Association, was created "in partnership with the American Society for the Prevention of Cruelty to Animals (ASPCA) and Animal Legal Defense Fund (ALDF) to educate and train prosecutors and allied professionals on the effective handling of animal cruelty and neglect cases, including cases involving the co-occurrence of animal abuse and violence to people."8 Their mission is to make people aware of animal cruelty and to "bring greater awareness to the often misunderstood nature of animal maltreatment and how it can interconnect with family violence and contribute to lethality issues for victims of interpersonal violence."9 Animal abuse in the home is a predictor of human abuse.
Although at first glance, the work of the NCPAA may seem unrelated to the role of family lawyers in a pet custody dispute, this entity focuses on the same types of issues that arise in cases where there is domestic abuse. One way a warning is communicated to a family member is by threats of violence against an animal. If you are approached about representing a client in a case where domestic abuse has occurred, always remember to ask animal-related questions, too. If there has been recent harm to an animal, under state cruelty laws, and with the help of the NCPAA, a charge could be made and the conditions of release for the offender could ensure an animal's safety.
STATE ANIMAL-RELATED REGULATIONS AND STATUTES
There is a broad spectrum of laws and regulations at the state or local level pertaining to animal cruelty, animal safety public health, commerce, animal health, public safety, natural resources, captive wildlife, harmful exotics, endangered and threatened species, licensed breeders and dealers, pound seizures, trespass, emergency management, commercial interests, animal welfare, and animal cruelty.
Laws and regulations may also pertain to agro terrorism, animal enterprise terrorism, hunting and hunter harassment, animal fighting, abuse, cruelty, lost or estray animals, animals at large, service animals, harm to service animals,10 overworking, owner obligations, exposure, sanitation, restricted or exotic species, transport, loading, traffic, guardianship, nuisance, veterinary reporting, liens, quarantines, seizures, destruction, humane killings, animals as prizes, and animals causing damage or injury.
ANIMAL SEX OFFENDERS
Another aspect of this subject is the number of registries with regard to sex offenders. While the state of Michigan once required that repeat animal offenders be listed under the state's Sex Offenders Registration Act, the Michigan Court of Appeals later determined that animals could not be victims of sex crimes under the state's law given the plain meaning of the word "victim."11 This same "victim" problem came before the court six years later in State v. Nix,12 a decision where the Supreme Court of Oregon found that animals were victims in a case involving cruelty to horses and goats.13 Although the Oregon Supreme Court's decision in Nix was later vacated based upon a jurisdictional issue, the Oregon Court of Appeals reaffirmed this court's "animal as crime victim" approach in State v. Hess,14 a case involving cat hoarding.
BESTIALITY
Bestiality is a form of animal cruelty. Laws on this subject are progressing swiftly. More than 40 states have laws that address sexual conduct between humans and animals.15 The states that still lack these laws are Hawaii, Kentucky, Nevada, New Mexico, Ohio, Texas, Vermont, West Virginia, and Wyoming, as well as the District of Columbia.16 For first-time offenders, sexual contact or penetration may result in a Class A misdemeanor; the same behavior could result in a Class B felony thereafter.17
The subject of bestiality interfaces with the subject of pet custody disputes, too. Although at one time, a strict property analysis might have been outcome determinative in an ownership dispute, there seems to be growing consensus that at the very least, animal cruelty should also be considered in the analysis. Even if a state has not made a crime out of sex with animals, hopefully civil courts will consider evidence on this subject when making a pet custody determination.
FELONY AND MISDEMEANOR ANIMAL CRUELTY LAWS
Animal cruelty and laws that pertain to animal protection have gained momentum in the United States. When South Dakota passed a felony law against animal cruelty in 2014, this meant that all 50 states had animal cruelty felony laws.18 Egregious acts toward pets or companion animals increasingly subject perpetrators to felony prosecution and jail time.
There are two types of misdemeanor offenses; the first type involves an intentional act to harm an animal, including overdriving, overloading, torturing, cruelly beating, neglecting, unjustifiably injuring, maiming, mutilating, or killing an animal.19 The second type is negligence based, including failure to act. For example, an individual state may establish minimums for food, water, shelter, and veterinary care.
ANIMALS AS VICTIMS
As mentioned before, momentous decisions about animal cruelty include State v. Nix,20 State v. Fessenden,21 and State v. Hess.22 Nix, which is still good law, as explained above, was a landmark decision. The Oregon court reasoned that although the word "victim" in a criminal statute typically pertains to a human person, the term may be interpreted differently in laws pertaining to animal welfare and cruelty. The logical interpretation of the word "victim" in animal welfare and cruelty statutes takes into account legislative history and legislative intent pertaining to animal protection.
PERSONHOOD
Just as Nix shows that the term "victim" is not restricted to mean human victims, the court in the companion decision of Fessenden also shifted the center of gravity about where animals belong on the continuum toward the concept of personhood.23 There, an animal control officer was lawfully in a driveway when he saw an emaciated horse that he believed could easily fall, which would constitute a life-ending event. Using an emergency and exigent circumstances rationale, the court determined that the officer's warrantless search and seizure, as embodied by the officer's seizure of the horse, was permissible. In a carefully worded opinion, the court reminded the reader that animals are only property, while at the same time it promoted help for animal victims; victims are not just humans anymore.24
Following these two decisions, when it was necessary to vacate Nix because of a jurisdictional issue, as stated earlier in this chapter, the Nix decision was reaffirmed in the cat hoarding case of State v. Hess.25 In Hess, the merger doctrine did not apply when sentencing the defendant, as each cat was a victim.26
ANIMAL MISTREATMENT
Although Nix, and its progeny, do not mention the words "best interests of the animal," the decision will be of great use to a practitioner looking for the types of elements that can be cobbled together to make a forceful best-interests legal argument. In a pet custody dispute, the court should not award a companion animal that has been the victim of any type of animal cruelty. In Minnesota, the court signaled in Pratt v. Pratt27 that if a future case before the court involved "mistreatment" of a companion animal, the court could consider this behavior in rendering its decision.
PIT BULL CRUELTY
Animal cruelty may be directed at Pit Bulls, a dog breed that has received considerable attention in evolving pet law jurisprudence. When a malnourished Pit Bull was found in a garbage bag that had been thrown down a garbage chute,28 the maintenance worker who found the dog took him to a humane shelter, where they found the dog's temperature was extremely low.29 The shelter nicknamed the dog "Patrick" because he was found the day before St. Patrick's Day. Patrick's owner was charged with two counts of fourth-degree animal abuse and two disorderly person offenses.30 In just three days, the hospital received more than $30,000 in charitable donations for Patrick's care.31 A dispute about Patrick's ownership ensued. The court, utilizing a best-interest standard, awarded Patrick to the animal hospital that saved his life.
Another Pit Bull animal cruelty case that caught the public's attention and sympathy involved a dog named Louis Vuitton. Louis Vuitton's owner sprayed him with lighter fluid and set him on fire while beating him with a shovel. Sentenced to nine and a...
