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Chapter 5 Companion animals, law, and animal cruelty.

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No man shall exercise any Tirrany or Crueltie towards any bruite Creature which are usuallie kept for mans use.

The Body of Liberties, Massachusetts Bay Colonie, 1641 (as cited in Ascione & Arkow, 1999, p. 271)

KEY TERMS

law

wildlife

state law

federal laws

local laws

Animal Welfare Act (AWA)

regulations

dealers

animal fighting

licensing

exotic animals

Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)

trade

liability

insurance

breed-specific bans

cruelty

abuse

neglect

hoarding

Hoarding of Animals Research Consortium

bestiality

zoophilia

The Link

violence

legislation

Animals are covered by a complex mix of federal, state, and local laws. These laws sometimes overlap and sometimes are contradicting. Even the definition of animal will vary from one place to another. This is a rapidly changing field and Animal Law is an accepted specialty in the legal profession. Courses are taught at major law schools, there are specialty journals devoted to the field, and many bar associations are forming animal law subcommittees. The first part of this chapter will provide a brief introduction to the range of laws that impact companion animals, owners, and others associated with their care. The second part of this chapter will focus on animal cruelty laws and the connection between animal cruelty and other forms of violent and abusive behavior.

Rules related to the treatment of animals in America date back to the earliest days of European colonization. These typically reflected concerns related to the value of animals as property or concerns about the moral impact that mistreatment of animals had on humans (Favre, 2003). The ensuing centuries have seen the development of a complicated web of legal authority that sometimes overlap in jurisdiction and sometimes omit or overlook issues related to animals. The earliest laws were most often directed toward the treatment of livestock and horses. These animals were frequently among the most valuable possessions that an individual might have, and were critical for transportation and work, food, and fiber. As such, these laws were typically concerned with the protection and treatment of animals as property. Indeed, the very definition of animal as covered under these laws reflected the extent to which the animal could be owned, controlled, and have value. At one end of the scale was wildlife, which could not be owned, controlled, or possessed and therefore had no legal protection. At the other end was livestock, which could be owned, controlled, and had value. Dogs, cats, caged birds, and other animals that we now think of as pets or companions existed in a nether region of the law (Favre, 2003).

A New York state law passed in 1866, due to the influence of Henry Bergh, founder of the American Society for the Prevention of Cruelty to Animals (ASPCA), is generally seen as watershed in the development of effective anticruelty laws. This law and its subsequent amendment in 1867 made several important contributions to animal law (Favre, 2003). First, while previous laws were limited to the protection of owned animals with commercial value, these improvements eventually extended protection to "any living creature." The law included both intentional and negligent acts and expanded the list of illegal actions. Therefore, the early laws that were meant to protect owned animals with commercial value were expanded, and time and precedent eventually succeeded in finding a secure place for the treatment of companion animals under law. Many other states soon followed the lead of New York in the passage of similar laws to prevent cruelty to animals. States that followed rapidly on the heels of New York often copied the New York law's language quite closely. However, in the following decades, each state, including New York, modified its laws in this area, and there is now a surprising range of variation in state laws across the country. At the same time, nearly all local communities have passed their own regulations related to animals, their ownership, and their treatment. There are very limited federal laws related to animals. David Favre has indicated that, "There is nothing in the U.S. Constitution to suggest that the U.S. Congress is authorized to deal with animal issues" (Favre, 2003, p. 362). As a result, these state and local laws are the main source of regulations and legal oversight regarding animals in the United States. This chapter will examine the various laws at the federal, state, and local level that are relevant to ownership and treatment of companion animals.

FEDERAL LAWS

While Congress does not have explicit authority to legislate regarding animal issues, it does possess the power to pass laws related to interstate commerce. As a result, the limited spectrum of federal law related to animals is generally derived from this authority. The first federal law related to animals was passed to require provision of food, water, and rest for livestock being shipped interstate. In similar fashion, the application of other federal laws related to animals is typically associated with interstate commerce. This authority can be extended to cover the treatment of animals before and after they are shipped and the purpose for which they are shipped between states.

Other constitutional issues associated with companion animals are generally those associated with their status as property and rights of pet owners to due process in the protection of their rights and property. Due process accorded to an individual is protected by the Fifth and Fourteenth Amendments, protection against the seizure of public property by the Fifth Amendment and equal protection under the law by the Fourteenth Amendment (Favre, 2003). While at times frustrating for Animal Control authorities, these protections do help to ensure that laws related to the regulation of animal ownership and responsibility are enforced fairly and consistently.

Animal Welfare Act

The most significant federal law related to companion animals is the Animal Welfare Act (AWA). In the early 1960s, as medical research using animals was expanding in the United States, it became a significant concern that companion dogs and cats were being stolen and sold to institutions for use as research subjects. The AWA was passed in 1966 with the express purpose to protect pet owners from the theft of their pets and to prevent the sale of stolen dogs or cats for research or experimentation. As a way to deal with the source of animals used in research, regulations were developed to cover the treatment of dogs and cats at breeders and dealers and the research facilities. The AWA has been amended several times in 1970, 1976, 1985, and 1990, expanding its scope and authority, most specifically related to care and treatment of animals in research facilities. The current primary concerns of the AWA include the following (for the full text, visit <http://www.animallaw .info/statutes/stusawa.htm>):

* The theft of pet dogs and cats being sold to research and testing facilities

* Mammals in zoos and exhibitions

* Animal fighting (dogs and cocks primarily)

* The breeding and wholesale distribution of some mammals

* Auctions of animals/mammals

* Animals in research laboratories (universities and private industry)

* The transportation of listed animals by other than common carriers (Favre, 2003)

The United States Department of Agriculture (USDA) through its Animal and Plant Health Inspection Service (APHIS) was given the task of enforcing the AWA. Most of the regulatory activity is accomplished through the use of licensing requirements, inspections, corrective actions, administrative hearings, monetary fines, and license revocation. There are three main classes of dealers and exhibitors:

* Class A: Businesses or individuals that breed and sell animals

* Class B: Businesses or individuals that buy and/or resell animals, including brokers and individuals that operate an auction sale

* Class C: Businesses or individuals who exhibit or display animals to the public--buying or selling animals may be a minor part of the business to maintain the animal collection

The AWA has specific impact on companion animals in several ways. First, the system of regulations and licensing required for animal dealers provides pet owners with some protection against the theft of their pets. Regulated research facilities may purchase animals covered by the act only from licensed breeders or dealers, who are required to document and track the sources of the animals that they sell. These licensing requirements also govern the breeders and dealers that provide puppies and kittens for sale in retail pet stores. These businesses are controversial. Animal protection groups have called them "puppy mills" and have criticized them for the treatment of the dogs used for breeding stock (Figure 5-1), failing to provide proper care and husbandry, and the overall quality of the puppies shipped for sale to the public (Curnutt, 2001). In 2005, Pennsylvania Senator Santorum sponsored a bill that further would have amended the AWA, providing additional regulations to protect the welfare of the animals used for breeding by licensed regulated businesses and individuals, and the puppies they produced. This bill is still pending, as various parties debate the merits of specific elements and whether and how it could address large-scale breeding operations that sell directly to public, in addition to sales to brokers and other retail outlets (<http://www.thomas.loc.gov/cgibin/ query/z?c109:S.1139.IS:>).

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The AWA does provide specific authority for the regulation of animals transported by commercial air carriers. For example, the law requires that animals to be shipped by a commercial carrier have a licensed veterinarian examine the animal not more than 10 days before the shipping date and provide a certificate of health. This certificate must be submitted to the commercial carrier when the animal is presented for shipping, whether or not the animal is accompanied by its owner on the flight. The carrier used for shipping must also meet standards for sturdiness to protect the animal and the airline personnel. In 2000, following a number of cases where animals either died in cargo areas during flights or escaped during the process of loading or unloading from airplanes, the Code of Federal Regulations was amended under the authority granted to the Secretary of Agriculture in the AWA, requiring that airlines maintain public records on the number of animals that die during transportation. So far, data for the first 13 months show there were 28 deaths, 12 injuries, and 6 lost animals on 15 of the 22 airlines that reported their data to the Bureau of Transportation Statistics (BTS). Full reports on each incident are available from the BTS (<http:// www.airconsumer.ost.dot.gov/reports/index.htm>). In one well-publicized incident, a whippet named Vivi, returning from the Westminster Kennel Club show in New York City in February 2006, was lost at John F. Kennedy Airport when she escaped from her kennel on the tarmac. As of February 2007, she was still lost, with sporadic reports of her being sighted in the area of the airport (McGee, 2007). In much the same way that travelers may choose a particular air carrier based on its reported on time record, pet owners who want to travel with their pets can choose an air carrier based on the now public record for safe pet transport.

Funding for the USDA is provided through the annual appropriations process in Congress, specifically through the Farm Bill. From time to time, amendments to the Farm Bill have provided updates or changes to the AWA. One recent example in 2005 was the stipulation that the USDA evaluate the use of radio frequency identification (RFID), or microchips, for companion animal identification and establish a national standard for their use. As noted in Chapter 4, microchips have not been fully utilized by pet owners or the various agencies that could benefit by reliable identification of pets because of problems with standardization of the microchips and the readers. In this case, the USDA would be acting under the authority of Congress to regulate interstate commerce. It is interesting that the nature and language for this amendment was being considered during recovery efforts that followed Hurricanes Katrina and Rita in late summer 2005. Because of the devastation wrought by those storms, animal rescue efforts required the movement of pets out of the Gulf Coast region for foster care at animal shelters and rescue groups around the country (see sidebar The Perfect Storm in Chapter 4). The author was a party to meetings related to the Farm Bill amendment and was active during the animal rescue activities. The need for a national standard was made clear during the animal rescue process and did influence support that resulted in passage of the amendment.

The AWA does set specific husbandry requirements for dogs, cats, and other regulated animals kept in research facilities. These requirements set minimum standards for cage sizes, sanitation, and feeding, among other things. In addition, dogs must be exercised daily.While these regulations are limited to the regulated research establishments, in the absence of husbandry regulations in other circumstances, they do provide a reference point when evaluating conditions at animal shelters, boarding facilities, and breeding kennels.

Federal Regulations Related to Wildlife

Several different federal laws limit the capture, ownership, and transport of wildlife or exotic animals. These laws have particular significance for people interested in collecting specimens of exotic pets, including large cats, primates, reptiles, birds, and other animals.

Human Health. The Food and Drug Administration and the Department of Health and Human Services will exercise their authority to prohibit or regulate practices that have potential impact on human health. For example, in the 1970s there was concern about the spread of turtle-associated salmonellosis. Salmonella are naturally occurring bacteria in turtles. However, juvenile turtles are considered a greater risk for shedding the bacteria, posing a health risk to humans. As a result, in 1975 the Food and Drug Administration banned the sale of baby turtles, those with a carapace length of less than four inches (for more information visit <http://www.fda.gov/cvm/turtlereg.htm>).

Additional attention to regulation in this area developed in 2003 when monkey pox was contracted by pet owners in Wisconsin, Illinois, and Indiana, who had purchased prairie dogs. The prairie dogs had been housed next to a Gambian giant pouched rat at an animal dealer (Enserink, 2003). A number of states issued emergency orders to limit or prohibit the importation, sale, and distribution of prairie dogs and certain other rodents (Department of Health and Human Services and Food and Drug Administration, 2003). Because the animals were moving across state lines, the Centers for Disease Control and the Food and Drug Administration issued a joint order prohibiting the transportation for interstate commerce or sale of prairie dogs, Gambian giant pouched rats, and several other rodent species.

Conservation. The Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) came into force in 1975, has over 150 member countries or parties, and regulates the capture, killing, confinement, or possession of wildlife designated as endangered, whether alive or dead, whole or parts. While CITES is actually an international treaty, it required federal authorization and depends on the cooperation and support of federal authorities for enforcement. CITES lists species under three appendices. Animal species listed under Appendix I are threatened with extinction and international trade is banned. This would include all the great ape species, a number of parrots, and marine turtles. Appendix II species are not currently in danger of extinction, but there is concern that uncontrolled trade could place them at risk. Trade in these species is permitted, but it is regulated and requires valid permits for transport. Finally, individual parties to the treaty can request that a native plant or animal be protected by having it listed under Appendix III (<http://www.cites.org>; appendices are listed at <http://www.cites.org/eng/ app/appendices.shtml>).

Wild Bird Conservation Act (WBCA). During the 1980s, the United States imported approximately 700,000 birds per year for the pet trade, and about 90 percent of these were caught in the wild. In an effort to support the conservation of wild populations of exotic birds around the world, the Wild Bird Conservation Act was passed in 1992 (<http://www.defenders.org/ wbcafact.html>; January 12, 2006). The act restricts importation of birds listed in the appendices of CITES as well as unlisted species at the discretion of the Secretary of the Interior (16 U. S. C. [section] 4907). The Secretary also has the ability to permit the import of CITES species or ban importation of all species from a particular country.

Americans with Disabilities Act of 1990 (ADA)

Under the Americans with Disabilities Act of 1990 (ADA), people who use service animals cannot be discriminated against by privately owned businesses that serve the public (ADA, n.d.). The ADA defines a service animal as any guide dog, signal dog, or other animal trained to provide an individual with a disability with assistance. Some examples would include the following:

* Assisting a person who is blind

* Alerting persons with hearing impairments to sounds

* Pulling wheelchairs or otherwise assisting persons with mobility impairments

* Assisting persons with mobility impairments with balance

While many trained service dogs wear a special harness or vest, people with service animals are not required to carry documentation of their disability or certification that their animal is trained as a service animal. However, business owners may inquire (for clarification purposes) if the animal is a service animal (for more information visit <http://www.ada.gov/svcanimb.htm>).

Pets and Public Housing. Federal law (12 U.S.C. [section] 1701r-1) protects the right of pet ownership for the elderly or handicapped in assisted rental housing. As a result, no owner or manager of federally assisted rental housing for the elderly or handicapped may (a) prohibit or prevent any tenant from owning common household pets or having common household pets living in the dwelling in such housing, or (b) restrict or discriminate against any person by reason of the ownership of such pets or the presence of these in the dwelling. However, owners may require removal of any pet whose conduct or condition is duly determined to constitute a nuisance or a threat to health and safety of other occupants of the housing or persons in the community.

Tax Code--Nonprofit and 501(c)(3). Nonprofit, tax-exempt charitable organizations are typically organized as corporations under 26 U.S.C.S [section] 501 of the Internal Revenue Law. The law specifically authorizes the formation of corporations to further "prevention of cruelty to children or animals," under 501(c)(3). These organizations do not pay tax on revenues that they collect related to their work, and contributions to the organization from members of the public are tax deductible. Groups organized as 501(c)(3) corporations are limited in their ability to be active politically. They can engage in public education related to their cause, but cannot endorse or campaign for a political candidate or make contributions to political campaigns.

STATE AND LOCAL LAWS

The majority of laws related to companion animals exist at the state and local level. These cover a wide range of animals and activities, including the types of animals that may be kept as pets, licenses for individual pets and pet-related businesses, the practice of veterinary medicine, regulations for animal shelters, and laws related to animal cruelty. Companion animals, their owners, and other people that come in contact with the animals will also be affected by laws and regulations that govern liability and insurance practice. Several Web-based resources provide summaries of state laws related to animals (visit <http:// www.animallaw.info>). This is a dynamic area, with hundreds if not thousands of laws and amendments considered in state legislatures each year. Students and professionals working in the area are well advised to consult these sources, and other resources, to stay current.

Facility Licensing

Regulations related to the licenses or permits needed to operate an animal facility will vary greatly from state to state. These would include regulation of animal shelters, boarding facilities, grooming businesses, and pet stores. The regulatory authority for each situation might be found with the State Department of Health or Department of Agriculture. Placement of the oversight will give a sense of whether the intent of the regulations is directed at animal or human health issues. When regulations exist, they will generally provide standards for cleanliness and hygiene and the types of practices or procedures permitted on the premises. Inspections may or may not be required as part of the regulations. The lack of uniform practice in this area of regulations is clearly seen in Table 5-1, showing the differences in state regulations of animal shelters. While some states specifically prohibit pound seizure, other states require it for government run animal shelters. In those states that have no specific state law related to pound seizure, local laws or regulations may govern the practice.

Veterinary Medicine

All states require that veterinarians be licensed to practice veterinary medicine within that state. This will typically require possession of a valid degree in veterinary medicine from an approved veterinary medical program and passing a licensing exam. In addition to the standards for the initial licensure of a veterinarian, states may set additional standards to require continuing education for an individual to maintain his or her license to practice. These regulations will be governed by the Veterinary Practice Act applicable to the individual state. The American Association of Veterinary State Boards has drafted a Model State Veterinary Practice Act that represents a broad consensus of current practice in the various states, as well as recommendations for change and modification (available at <http://www.aavsb.org>). It is interesting that in the model act, the purpose of the act is not related to the protection and or treatment of animals; rather it is stated, "... to promote, preserve, and protect the public health, safety, and welfare by and through the effective control and regulation of persons, residing in or out of the state that practice veterinary medicine within this state" (Section 103, Statement of Purpose of the Model Act). The practice of veterinary medicine is then defined as, "Any person practices veterinary medicine with respect to animals when such person performs any one or more of the following: (a) directly or indirectly consults, diagnoses, prognoses, corrects, supervises, or recommends treatment of an animal, for the prevention, cure or relief of a wound, fracture, bodily injury, disease, physical or mental condition; (b) prescribes, dispenses or administers a drug, medicine, biologic, appliance, application or treatment of whatever nature; (c) performs upon an animal a surgical or dental operation or a Complementary or Alternative Veterinary Medical Procedure; (d) performs upon an animal any manual procedure for the diagnoses and/or treatment of pregnancy, sterility, or infertility; (e) determines the health, fitness, or soundness of an animal; (f) represents oneself directly or indirectly, as engaging in the practice of veterinary medicine; or (g) uses words, letters, or titles under such circumstance as to induce the belief that the person using them is qualified to engage in the practice of veterinary medicine, as defined. Such use shall be prima facie evidence of the intention to represent oneself as engaged in the practice of veterinary medicine" (Section 104). Oversight of veterinary practice in a state is typically handled by the State Veterinary Board, working under the auspices of the State Education Department. The State Board is responsible for investigating allegations of malpractice or unprofessional conduct.

Veterinary technicians may or may not be licensed. In some states licensing for veterinary technicians may be voluntary. In most cases, this would require completion of an accredited program in veterinary technology and passing an exam. Licensed Veterinary Technicians (LVT; also called Certified Veterinary Technicians, Registered Veterinary Technicians, or Certified Animal Health Technicians, depending on the state) will often be permitted to perform a variety of procedures related to animal care under the supervision of a licensed veterinarian. It is likely that as veterinary medicine becomes more sophisticated, the training and requirements of licensing for veterinary technicians will become more common.

Other Professions and Activities

It is not uncommon for a state to require that dog groomers be licensed to practice. This typically reflects the desire to ensure that proper standards of hygiene are maintained and that the animal being groomed is protected from harm. It is surprising that there is limited regulation to govern dog training. Trainers do not need to be licensed or show evidence of completing any form of educational study related to being a dog trainer. Voluntary guidelines for dog training were developed by the American Humane Association (2001) and the Delta Society (2001).

States will typically limit or restrict the ability of individuals to capture, hold, or keep native wildlife as pets. In addition to the restrictions that may be stipulated on what animals may or may not be kept, the state will generally require that individuals, even including veterinarians and animal shelters that hold, care for, and rehabilitate wildlife, be licensed by the state (Casey & Casey, 2000). Holding or keeping migratory birds would require a federal license. In addition, states may issue permits to individuals to keep, hold, or exhibit other exotic species such as primates.

Dangerous Dogs

Media accounts of dog attacks that result in serious injury or fatality will often stimulate discussion of the need for "tougher" regulations regarding dangerous or vicious dogs in a state or community. There is limited accurate information on the frequency of severe dog attacks. There is no standard national, and limited local, reporting system to keep track of such attacks. In general, dangerous dog laws and regulations are based on restrictions placed on owners and dogs that have demonstrated some form of behavior considered threatening. A model law supported by the American Veterinary Medical Association follows a well-defined process to determine if a dog should be considered dangerous, appropriate steps to take to protect public safety (AVMA Task Force on Canine Aggression and Human--Canine Interactions, 2001). An alternative approach being followed by other communities are breed-specific bans (Bresch, 2005). Under these laws, municipalities may preemptively ban specific breeds of dogs as a prophylactic effort to protect public safety. The breeds generally covered by these bans include pit bulls (generally considered to be American Staffordshire bull terriers, Staffordshire terriers, and Staffordshire bull terriers), rottweilers, German shepherd dogs, chow chows, and Doberman pinschers, among others. Some states have specific prohibitions that prevent communities from having animal control laws that target particular breeds. Ohio has targeted pit bulls for special attention. By definition, pit bulls are automatically determined to be vicious dogs and must be penned or tied up on the owner's property (Cunningham, 2005). Florida, on the other hand, allows municipalities to regulate dangerous dogs only if done so in a way that does not target or single out specific breeds (substantial additional information on these laws is available at <http://www.dogbitelaw.com>). Breed-specific laws have been based on sparse statistical evidence that pit bulls, or any other breed, pose an increased risk of bite frequency. In fact, the AVMA Task Force on Canine Aggression (2001) concluded that the available numbers related to dog bites do not give an accurate picture of which breeds are likely to bite. Insufficient data have been collected to determine if these laws have been effective in their intent to protect public safety. Resolution in this area will probably require several rounds of court tests, redrafting of dangerous dog laws, and more accurate statistical reporting models.

Liability, Tort, and Insurance Law

Pet owners confront liability in two ways. They can be liable for damage or injury caused by their pet, or they may want to recover damages as a result of the injury or death of their pet. The growing importance of this area is reflected in the American Bar Association's formation of the Animal Law Committee through its section on Tort, Trial, and Insurance Practice in November 2004 (Gislason & Fershtman, 2006).

Dog bites are the most common way in which pet owners may be held liable for damage or injury. While there is no standard system in place for reporting dog bites, various sources suggest that dog bites are an important public health issue and do result in significant numbers of injuries and monetary loss. The Insurance Information Institute (III), an insurance industry resource, estimates that over $345 million was paid in claims in 2002 and $317 million in 2005 (III, n.d.). Traditional precedents relied on the "one-bite rule." Dogs were generally considered safe until they had bitten one time (see <http://www.dogbitelaw .com>). Owners (and the dog) would not be liable for that first bite, since it could not be predicted. However, after a first bite, the owner would be on notice that his or her dog had a history, and he or she could be held liable for damages or injury caused by subsequent bites. Practice in this area is changing and it is now more likely that owners will be responsible for damages or injury caused by a first bite inflicted by their dog. A dog owner's homeowner's insurance policy would typically pay for any damages for which the dog's owner is found liable. Some insurance companies have decided not to provide insurance to owners of some breeds that they consider a high risk (Cunningham, 2005). Cunningham has argued against this practice, citing a lack of evidence to support the practice, and the fact that it places a significant strain on families that are forced to choose between keeping their family pet and being able to get the insurance needed to keep their home. It is interesting to note that both sides of this debate point toward many of the same studies cited by the AVMA Task Force on Canine Aggression to support their position. It should be noted, however, that the authors of that report point out that their research does not provide adequate data to justify discrimination against particular breeds of dogs. Dog owners will need to be aware of the increasing attention being paid to their responsibilities in this area.

Another rapidly changing area of law is related to the damages that a pet owner can recover if their pet is injured or killed. The traditional view of the law that recognizes animals as property allowed an owner to recover damages based on the fair market value of the animal (Favre, 2003). Under this scenario, pure bred, pedigreed animals would have a greater value than non-pedigreed animals. Similarly, animals with special training or abilities would have a greater market value. However, the emotional value of the animal to the owner was not recognized and valued, and would not be part of any calculation to compensate an owner for damages. This precedent is changing based on the growing evidence that companion animals provide their owners with positive physical and mental health benefits. At the same time, greater recognition is now given to the fact that pets are considered to be part of the family where they live. As a result, both legislative and trial decisions support compensation for the emotional value of the bond that families have with their pets. In 2000, the State of Tennessee passed the T-Bo Act that allows a pet owner to recover up to $4,000 in noneconomic damages if his or her pet is killed or dies due to injuries caused by either the intentional or negligent acts of another (Favre, 2003). Recent court decisions have resulted in even larger awards to pet owners. In 2005, a judge in the State of Washington awarded over $45,000 to the owner of a cat that had been killed by the neighbor's dog. The award included $30,000 for the value of the cat, $15,000 in emotional distress, and additional compensation for medical expenses and the cremation of the remains (Cornwall & Welch, 2005). Additional cases are working their way through the courts across the country and it is likely that compensation awards that recognize the unique place companion animals hold in our society will become more common (visit <http://www.animallaw.info/topics/spuspetdamages.htm>).

Animal Cruelty

Many state anticruelty laws date back to the late 1800s, following the lead of New York State. While all states now have laws that in one way or another prohibit the cruel treatment of animals, there is substantial variation among the states. For example, differences in language from one state law to another will determine which species or types of animals are covered (Patronek, 2004). Some states may simply use the word "animal" while others will provide more detail by specifically including types of animals. For example, the state of South Dakota includes "mammals, birds, reptiles, amphibians and fish"; however, in the state of Georgia, the statute animal does not include "any fish nor shall such term include any pest that might be exterminated or removed from a business, residence, or other structure." In addition to these biological references to whether an animal is covered, whether the animal is owned or captive will determine if its treatment is covered under the anticruelty laws. For example, a cat may or may not be covered under a state's anticruelty law depending on whether it was "owned" by a person and kept in the house, was allowed to roam freely between indoors and outdoors, or is an unsocialized feral cat that lives on its own. The definition of ownership will also differ from state to state.

The question of how an animal is classified and whether or not it is owned has particular significance for a new development in animal cruelty laws. While animal cruelty has typically been classified as a misdemeanor crime, several states have amended their laws to classify intentional animal cruelty as a felony. These efforts have been based on research showing a link between cruelty to animals and other violent behavior. This topic will be discussed later in the chapter. However, it is significant that in a number of cases, felony cruelty statutes have been limited to domestic companion animals. This represents an interesting evolution from the earliest laws to prevent the mistreatment of animals that largely ignored companion animals and focused on owned livestock and animals that had economic value.

Defining Animal Cruelty. Animal cruelty laws typically address both intentional acts that cause unwarranted or unnecessary pain or suffering to an animal, and the failure to act in providing necessary food, water, shelter, or medical care. The former is generally classed as animal cruelty or abuse and the latter as neglect. The various states differ to the extent that they enumerate prohibited acts, practices that might be exempted, and as noted above, even the definition of animals pertaining to the law. Common agricultural procedures, biomedical research, hunting, fishing, and trapping are among the practices that are frequently exempted from state anticruelty laws. In addition to these two broad categories of animal mistreatment, several specific examples will be discussed: hoarding, animal fighting, and bestiality/zoophilia.

Animal Neglect. Animal neglect is failure to provide an animal with appropriate, nutritious food, adequate potable water, shelter from the elements, and medical and other care needed for the animal's well-being. The lack of widely accepted husbandry standards for companion animal care can complicate the investigation and prosecution of these cases (Patronek, 2004). Authorities may reference the standards defined in the Animal Welfare Act, written standards, or guidelines published by fanciers or breeders, among other sources. Judgment frequently requires documentation that the animal's condition falls outside the normally accepted standards for body condition or health. The Tufts Animal Care and Condition (TACC) scales were developed to provide an objective standard to evaluate an animal's body condition, physical health, and environmental conditions (Patronek, 1998). The scales provide visual examples and clear descriptions of the animal's physical condition related to various stages of neglect (Figure 5-2). Further evaluation of the condition of hair coat, teeth, and claws or nails, and evidence of discharge or dirt in the eyes, ears, nose, and anus may also be used to help demonstrate neglect (Figure 5-3). It is important to recognize that untreatable medical conditions must be ruled out as the cause of the condition observed. For example, a dog or cat with a metabolic disorder that compromises the absorption of nutrients from food may appear malnourished due to neglect. In cases like these, the owner may be asked to provide evidence that the pet has been seen by a veterinarian, the nature of the condition, and the type of treatment being followed. If a case is not severe, cruelty investigators may use their discretion to issue a Notice to Comply, and require the owner to provide better conditions, food, or medical treatment within a designated time frame. The investigators will then monitor the situation to ensure that the welfare of the animal improves.

Animal Abuse. Animal abuse is intentionally mistreating or injuring an animal. The range of such acts is stupefying. Cruelty investigators regularly investigate and report cases where animals are cut, stabbed, strangled, set on fire, or thrown from the roofs of buildings. Dogs are the most common reported victims of cruelty (Donley, Patronek, & Luke, 1999). However, it is uncertain whether this is due to the fact that they are abused more often, or because there is less interest or concern for cats. Anecdotal observations do suggest that stray animals, especially cats, are likely targets for abuse. Other companion animals are abused, but since they are less common, they appear less frequently in cruelty reports.

Abuse or cruelty cases are now more likely to require forensic analyses that approximate those expected in the prosecution of crimes against humans (Miller & Zawistowski, 1998; Munro, 1998; Munro & Thrusfield, 2001a; Sinclair, Merck, & Lockwood, 2006). This is especially true given the development of felony status for crimes of intentional cruelty toward animals. The defense will be more aggressive and the prosecution must be well founded, and the evidence presented needs to be carefully documented.

Animal Fighting. Dogfighting is illegal in all 50 states and cockfighting is illegal in 49 (and will be banned in Louisiana in 2008, making it illegal in all 50 states). In a number of states participating in a dogfight is a felony, and in several being an observer can also be a felony. Transportation of dogs or cocks across state lines is a federal offense. Pit bulls are the breed of choice for dogfighting. They are generally bred as carefully for their fighting skills, strength, and endurance as fanciers of other breeds will breed for herding, retrieving, or other qualities. Dogfighters can generally be categorized in one of three ways:

* Professionals--people who make a substantial investment and earn money through prizes, stud fees, gambling, and the sale of puppies, services, and products to other dogfighters. They may have a highly structured breeding and training program, including the use of performance-enhancing drugs. They will typically participate in well-organized fights that include promotional materials, refreshments, and security to guard against law enforcement.

* Hobbyists--people who enjoy the "sport" and the dogs. They may not have the same level of knowledge or time to spend to investigate breeding lines or training. A large part of their interest may be social.

* Street fighters--people who may be involved with a range of other illegal activities. Their dogs may receive little or no formal training. Fights are often spontaneous. Their dogs may also be used for protection or to guard drugs or money and as a result may be more likely to be aggressive toward people. (Dinnage, Bollen, & Giacoppo, 2004)

[FIGURE 5-2 OMITTED]

[FIGURE 5-3 OMITTED]

Investigations of dogfighting often rely on undercover investigations, and finding evidence of paraphernalia associated with training dogs for fighting such as treadmills, needles used to inject drugs, or ropes hanging from trees. The dogs are encouraged to jump up and grab the rope and hang by their jaws to strengthen the muscles used for biting. Cruelty investigators in a number of locations are now working closely with police department antigang units to identify dogfighting activities.

Animal Hoarding. The image on the news is often striking (Figure 5-4): a dilapidated home, dozens if not hundreds of animals in poor physical condition, and a disheveled older woman worried that someone was going to take away the animals that she cared so much about. People who were once called collectors, and now termed hoarders, are not just eccentric do-gooders who got in over their heads (Stone, 2006). Professionals are now advocating a broad-based multiagency approach to what they describe as a significant public health and animal welfare issue. In a study of 54 case reports of animal hoarders, the typical person was an older woman, who was single, divorced or widowed, and living alone (Patronek, 1999), but women and men of many ages, some even living with family, have been identified as well. The most frequently found animals were dogs and cats, though birds, livestock, and other animals were found. The hoarder had a median number of 39 animals, though several had over 100. In many circumstances the situation may have been known to a variety of agencies, but still fell through the cracks in jurisdiction. At the same time, agencies are often loath to act since the scale of the response required overwhelms the system. Animal agencies are not sure how to deal with a person who seems clearly in need of some sort of counseling, and human social service agencies have no idea how to judge the condition of the animals or what should happen to them. All of this is further complicated by sensational media coverage that may at times portray the hoarder in a sympathetic fashion.

[FIGURE 5-4 OMITTED]

The Hoarding of Animals Research Consortium (HARC, <http://www.tufts.edu/ vet/cfa/hoarding.html>) recommends a task-force approach that includes the following:

* Animal control

* Public health

* Mental health

* Child and adult protective services

* Zoning boards

* Fire prevention

* Veterinary assistance (HARC, 2000)

In addition, counseling services will be required for the hoarder, and authorities will need to continue to monitor the individual since recidivism is common. While there would seem to be clear mental health issues involved, no clear psychological model has been fully resolved. At this time, some variant of obsessive compulsive disorder has been offered as an explanation.

It is important to recognize that it is not simply the number of animals that means someone is a hoarder. HARC has developed the following definition to help identify hoarders:

* Accumulated a large number of animals, which has overwhelmed that person's ability to provide even minimal standards of nutrition, sanitation, and veterinary care

* Failed to acknowledge the deteriorating condition of the animals (including disease, starvation, and even death) and the household environment (severe overcrowding, very unsanitary conditions)

* Failed to recognize the negative effect of the collection on his or her health and well-being and on that of other household members (Patronek & HARC, 2001)

The consortium does point out that each case is unique and must be evaluated and responded to in a fashion that provides best for the person, the animals, and the community.

Bestiality/Zoophilia. Of all animal topics, bestiality/zoophilia is the one most likely to make people feel uncomfortable. As a result, it is an area where we have very limited information on its prevalence and impact on people, animals, and society. Bestiality is sexual contact with animals. Miletski (2005) points out that bestiality has been a part of human behavior throughout history. Depictions in art and literature have been common worldwide. The behavior has enjoyed varying levels of acceptance through the ages. This has ranged from open celebration to condemnation, with the death penalty for both the person and the animal involved. The practice has generally been prohibited in the United States, combined in statutes with other sexual acts that were considered deviant. In some cases, broad state laws related to sexual behavior were liberalized in recognition of homosexuality as an acceptable lifestyle, resulting in a loophole for the practice of bestiality. In most cases, actions are being taken to again make bestiality illegal. Due to the combination of legal and social disapproval, the prevalence of the behavior is difficult to evaluate. Kinsey, Pomeroy, & Martin (1948) in a study of male sexual behavior noted that about 8 percent of men reported having had sexual contact with animals. The frequency was higher in rural males than in urban populations and this was presumed to be partly a function of available animals. Beetz (2005), however, has shown in more recent research that dogs are the most frequent targets of sexual contact. This may be related to the expanding companion animal population.

Zoophilia has been defined as an exclusive or predominant desire for sexual contact with animals, including an emotional involvement (American Psychiatric Association, 1994). Individuals describe themselves as zoos and have used the Internet to great benefit to share information on how to engage in sex with animals, avoid authorities, and offer emotional support to one another (Miletski, 2005). This continues to be a turbulent area of discussion, though constrained by the prevailing social taboos. In the meantime, Munro and Thrusfield (2001b) have described physical evidence of sexual assault for pets. Several pets brought to the ASPCA Bergh Memorial Animal Hospital in New York City have been examined with the aid of rape kits to document evidence of suspected sexual assault (personal communication with Dr. R. Riesman).

THE CYCLE OF VIOLENCE

The recognition of what has come to be called the Cycle of Violence, or The Link between the mistreatment of animals and humans, has a long history in Western culture. For much of that history, however, the primary concern was not about the animals, but that the mistreatment of animals could harden an individual to the cruel treatment of other people (Serpell, 1999). It is therefore interesting that empirical investigations of this observation were uncommon until the latter half of the twentieth century. MacDonald published one of the seminal papers in this field in 1963. Based on his study of sadistic psychiatric patients, he described a triad of common elements in their childhood such as fire setting, bedwetting (enuresis), and the torture of small animals (MacDonald, 1963). Anthropologist Margaret Mead concurred and, based on her observations and research on a variety of cultures, indicated that one of the worst things that can happen to a child is to abuse an animal and get away with it (Mead, 1964). Hellman and Blackman (1966) provided additional resolution when they suggested that the critical element here was that the abuse or mistreatment was directed toward animals generally associated in a positive way with humans, such as dogs, cats, and other companion animals. The American Psychiatric Association (1994) has included animal abuse as a part of the diagnosis for conduct disorder since 1987 and the FBI Behavioral Sciences Unit has incorporated cruelty to animals into its procedures to identify people who may perpetrate violence against other people (Lockwood & Church, 1998). Merz-Perez and Heide (2004) are among the authors who have investigated the histories of serial killers and found that these individuals frequently had an early history of violence directed toward animals. They summarize a variety of studies that have shown that notorious serial killers frequently have a history of animal abuse. For example, Jeffrey Dahmer killed, dissected, and impaled animals while a juvenile, before killing and dismembering a series of human victims. Their own research on inmates at a maximum security prison in Florida showed that those incarcerated for violent offenses were significantly more likely to have a past history of cruel acts toward animals than inmates jailed for nonviolent offenses. Arluke, Levin, Luke, and Ascione (1999) examined the criminal records of 153 individuals who were prosecuted for animal cruelty in Massachusetts and found that they were significantly more likely to be involved in other forms of criminal activity than a control group selected for similar demographic variables.

While this link between violence directed toward animals and humans appears to be well established, continued research will be needed to clarify the underlying nature of the link. Kellert and Felthous (1985) provided important information by describing nine motives for animal cruelty:

* To control an animal

* To retaliate against an animal

* To satisfy a prejudice against a species or breed

* To express aggression through an animal

* To enhance one's own aggressiveness

* To shock people for amusement

* To retaliate against another person

* Displacement of hostility from a person to an animal

* Nonspecific sadism (pp. 1122-1124)

It is clear from experience with animal cruelty cases that several of these reasons may be associated with a particular individual's behavior or a specific event.

There is specific interest in the association of animal cruelty in homes with children and the treatment of the children. DeViney, Dickert, and Lockwood (1983) found that in 53 families with a history of child abuse, abuse of animals was also found in 60% of these families. This fact has particular significance since children who witness violence are also more likely to commit violent acts. This is what helps to drive the Cycle of Violence. As Merz-Perez and Heide (2004) point out, serial killers had a history of animal cruelty and a history of being abused themselves. A later chapter will address the proposed role that humane education may have in helping to break this cycle.

DISCUSSION QUESTIONS

1. Is animal legislation addressed more on a federal level or on a state/local level?

2. What issues other than animal welfare and protection drive federal legislation of animal issues?

3. When and why was the Animal Welfare Act passed? Describe how it currently protects companion animals. Who is responsible for enforcing the Animal Welfare Act?

4. What are the three main classes of dealers and exhibitors as defined by the Animal Welfare Act?

5. What licensing requirements are in place for veterinarians and veterinary technicians?

6. What regulations are in place to govern dog training?

7. What regulations are in place to address severe dog attacks? What major concerns surround these regulations?

8. In what ways do pet owners become involved in liability cases?

9. What is the major distinction between animal abuse and animal neglect?

10. Using the Web site <http://www.animallaw.info>, find a law in your state that addresses at least one of the forms of animal cruelty discussed in this chapter.

11. What is the definition of an animal hoarder according to the Hoarding of Animals Research Consortium (HARC)?

12. How is zoophilia distinguished from bestiality?

13. In what states are dogfighting and cockfighting illegal? What other regulations are in place to govern animal fighting?

14. What is the Cycle of Violence?

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TABLE 5-1
Distribution of State Laws Affecting Shelter Operations in the
United States (adapted from Patronek, 2004)

States with laws regulating         CT, FL, GA, IA, IL, KS, LA, ME,
animal shelters (a)                 MD, MI, MO, NH, NJ, NY,
                                    NC, RI, SC, TX, VA, VT

States requiring licensing          GA, IA, IL, KS, MD, ME, MI, MO,
of animal shelters                  NH, NY, RI, SC, TX, VT

States in which animal shelters     CT, FL, GA, IL, KS, MD, MI, MO,
are inspected                       NH, NY, RI, SC, TX, VA

States requiring an advisory        LA, ME, MO, TX
board for shelters

Training required for shelter       LA, TX, VA
personnel

Training required for animal        CA, FL, ME, MI, NJ, NM, VA
control officers

States with some regulation         CO, VA
of fostering organizations

States in which shelter             MI, VA
statistics must be reported

States with consumer protection     AR, AZ, CA, CT, DE, FL, ME, MN,
laws applicable to pets             NH, NJ, NV, NY, PA, SC, VA, VT

States in which pound seizure       CT, DE, HA, MA, MD, ME, NH, NJ,
is prohibited                       NY, PA, RI, SC, VT, WV

States in which pound seizure       IA, MN, OK, SD, UT
is required for government-run
shelters

States in which customary           AZ, CO, CT, IA, ID, IL, IN, KS,
farming practices are exempted      MD, MI, MO, MT, NC, NE, NJ, NV,
from cruelty statutes               OR, PA, SC, SD, TN, UT, WA, WV, WY

(a) Some state statutes (for example, PA) may indirectly regulate
shelters if they cover any facility that kennels dogs.
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Author:Zawistowski, Stephen
Publication:Companion Animals in Society
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Date:Jan 1, 2008
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