Animal Cruelty: Can Animals Be Crime Victims

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1. Introduction

There is no doubt that animals are abused and many stories of animal cruelty have been published in the media. The shocking number of animal cruelty cases reported, almost if not every day is just the tip of the iceberg as most cases are never reported. Protecting animals through the legal system has proven to be a problematic task. This is because, to begin with, statutes that impact animals have different definitions of the term ‘animal’. This also depends on the type of animal it seeks to protect.

In addition, animals are also divided into different categories such as domestic, wild, livestock or companion. The level of protection even differs according to the different categories that exist, with livestock receiving the least protections. What also makes it difficult is that animals cannot talk, by design, and therefore they cannot report the cruelty or abuse they go through behind closed doors.

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Animals are coldly classified as property which makes it even more difficult to seek redress through the legal system. However, we can appreciate the fact they are a different property, with the capacity to feel pain, hunger, and even emotion. This paper will, therefore, focus on answering the question, whether animals can be victims of crime.

2. Definitions of crime victims

2.1 Who is a crime victim?

A victim is defined as a person who has suffered physical or emotional harm, property damage, or economic loss as a result of a crime[footnoteRef:2]. This definition is, however, anthropocentric in nature, suggesting that the word victim cannot refer to animals. However, if the qualification is suffering and pain then animals can be said to be victims. For example, if a person hurts an animal by bashing it with an object, it will shriek out in pain. We do not need science to tell us that animals will react that way, even if they may not be able to express it verbally. [2: See https://www.justice.gc.ca/eng/cj-jp/victims-victimes/rights-droits/who-qui.html]

It has generally been accepted that only human beings are sentient beings but there is a growing understanding and acceptance that animals are sentient beings too[footnoteRef:3]. Animal sentience can be defined as the capacity of an animal to experience different feelings such as suffering or pleasure and there is no doubt that animal sentience exists. The reason that all these studies and the many others into animal emotions, personality and ability to feel pain, fear, and stress, are important is, therefore, a huge implication for animals[footnoteRef:4] and their status as victims of crime. Whether or not the law recognizes animals as sentient beings the fact still remains that they feel pain, fear and they are emotional. [3: Proctor, Helen S et al. “Searching for Animal Sentience: A Systematic Review of the Scientific Literature” Animals: an open access journal from MDPI vol. 3, 3 882-906. 4 Sep. 2013, doi:10.3390/ani3030882] [4: http://theconversation.com/heres-what-the-science-says-about-animal-sentience-88047 ]

3. Crimes Against Animals

In the United States, the crimes against animals that are the most often prosecuted are neglect, affirmative acts of abuse, animal fighting, abandonment, and bestiality[footnoteRef:5]. These are crimes perpetrated by humans and it can only speak volumes as to the kind of society we are. If the law already recognizes certain acts as unlawful against animals shouldn’t that count as animals having victimhood? [5: https://www.forallanimals.org/top-five-crimes-against-animals/]

Criminological attention has been paid to one dimension of animal abuse, and much of this work is focused on whether people who abuse animals are more likely to go on to be violent toward humans. This focus, however, that we should study animal abuse because it might be related to interpersonal violence against humans rather than because violence toward animals, is in itself a speciesist view. This is worthy of criminological attention on its own merit and useful for getting a day in court for animals via domestic violence.

3.1The Link: Cruelty to Animals and Violence Towards People

Studies conducted in recent year’s show that animal abuse and domestic violence go hand in hand[footnoteRef:6]. Although we are far from achieving a violence-free society, the attention to animal cruelty and human violence has helped society to recognize first of all that animal abuse is family violence. Animals are a part of our lives and our families and their ‘victimization’ affects other family members as well. Also, this connection has helped us move away from blaming the victims of violence for their victimization because it is often easier to see animal victims as truly innocent thus placing the spotlight on the problems of the abuser. Hence the link not only helps to bring attention to the problem of animal abuse but also helps to protect/prevent animals and people from been abused. Just as humans are victims of domestic violence so can animals be victims of the abuser. [6: https://www.animallaw.info/article/detailed-discussion-protecting-animals-domestic-abuse-and-animal-abuse-linked]

4. Sate v Nix[footnoteRef:7] [7: 283 P.3d 442 (Or.App., 2012)]

This case has been included because it set the tone for animals been recognized as victims of crime. The issue, in this case, was whether the defendant was guilty of 20 separately punishable offenses, which turns on the question whether animals are victims for the purposes of the anti-merger statute[footnoteRef:8]. The court of appeals held that animals are victims within the meaning of the anti-merger statute. This outcome is important because we consider animals as property and the distinction with seeing animals as victims as opposed to property was a very important question in this particular case. The assumption is that each animal gets rights as opposed to a collection of property, therefore punishing the abuser for a crime committed against each separate animal would suffice. [8: ORS 161.067(2)]

5. State v Crow[footnoteRef:9] [9: P.3d —-, 294 Or. App. 88 (2018)]

This Oregon case discusses whether 11 miniature horses, multiple cats, and a dog are separate victims for purposes of the merger into one conviction. Although the Nix case was vacated, Crow adopted its reasoning, as noted in the court’s opinion affirming the trial court’s decision stating that each unlawfully possessed animal is a separate victim. The court also stated that the legislature’s purpose in enacting the provisions of ORS 167.332 (1) (a), which prevents a person with convictions for crimes against animals from possessing animals, was to protect individual animals from suffering. Accordingly, as the state observes, animals, unlike tables, are living beings that can be the victims of a crime.

6. The Legal Status of Animals

6.1 Property

Despite the advances made by animal protection and animal rights activists the legal status of animals has remained essentially unchanged since the introduction of animal welfare reforms[footnoteRef:10]. There is however significant advance in the enforcement of existing laws protecting animals and the recognition of the significance of animal cruelty in the much broader universe of criminal behavior. Victims feel pain and victims suffer and animals also go through the same when abused. This is what distinguishes animals as sentient property from an inanimate property. [10: Favre, D., and V.Tsang.1993.The development of anti-cruelty laws during the 1800s. Detroit College of Law Review 1:1-]

6.1.1 The Problem

The animals whose abuse is most often reported are dogs, cats, horses, and livestock. However undercover investigations have revealed that animal abuse is more prevalent in the factory farm industry. But because of the weak protections afforded to livestock under state cruelty laws, only the most shocking cases are reported, and a few are ever prosecuted[footnoteRef:11]. Given the scale of the business and the demand for cheap animal products, the food industry has put on a fight against those who seek to speak against them and punish them by the enactment of ag-gag laws. These crimes happen behind closed doors, away from the public eyes and prosecution cannot happen if there is no evidence to prove cases beyond a reasonable doubt. [11: https://www.humanesociety.org/resources/animal-cruelty-facts-and-stats]

7. Standing

7.1 Requirements

The question of standing is a barrier to bringing claims on behalf of animals. Without standing a harmed animal or even human is a non-entity in the legal process. Animal rights lawyers/advocates can testify that this has not been and is not easy to achieve as animals are denied standing by being labeled property.

In Lujan v. Defenders of Wildlife (90-1424), 504 U.S. 555 (1992), the Supreme Court created a three-part test to determine whether a party has the standing to sue:

  • The plaintiff must have suffered an ‘injury in fact,’ meaning that the injury is of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent.
  • There must be a causal connection between the injury and the conduct brought before the court.
  • It must be likely, rather than speculative, that a favorable decision by the court will redress the injury.

This three-part test is not without controversy particularly in terms of animal protection. The uncertainty is, under what circumstances do these requirements permit or bar an action brought to prevent unlawful injury done to an animal? The provision does not also address the most general question as to when human beings may invoke their own ‘injuries in fact’ to challenge harms done to animals.

8. Animals as Plaintiffs

In terms of animal protection, however, by far the most important measure is the Animal Welfare Act, which imposes, on those who deal in or with animals, a wide range of negative constraints and affirmative duties[footnoteRef:12]. The Animal Welfare Act promises an ambitious set of safeguards against cruel or injurious practices; taken together with other federal statutes, such as the Marine Mammal Protection Act, it suggests that national law is committed to something not very different from a bill of rights for animals. [12: Cass R. Sunstein, ‘Standing for Animals’ (University of Chicago Public Law & Legal Theory Working Paper No. 6, 1999).]

However, the fact is, it is hard to keep animals as commodities and at the same time accomplish all five freedoms embodied in the AWA. The food industry is mostly guilty of this as farmed animals are mistreated and abused. According to an article penned by the Animal Advocacy organization, ‘These five freedoms define ideal states rather than standards for acceptable welfare. They form a logical and comprehensive framework for an analysis of welfare within any system together with the steps and compromises necessary to safeguard and improve welfare'[footnoteRef:13]. Limited protection is afforded to animals used in research, farmed animals and the Act itself does not even provide for wild animals. [13: www.animaladvocacy.ie/legislation/the-five-freedoms ]

Hence here too there is a question whether statutory law is not largely expressive and symbolic, a statement of good intentions, delivering far more on paper than in the world. The chances of success for animals as the plaintiff are very slim because of the constrictions in the very same legal system that purports to protect them.

9. Current Crime Victim Legislation and Protections

9.1 Crime Victims’ Rights Act

In Oregon, crime victims have certain rights under the Oregon Constitution Crime Victim Rights Bill and state statutes. These include the right:

  • To have a meaningful role in the criminal justice process
  • To be treated with dignity and respect
  • To fair and impartial treatment
  • To reasonable protection from the offender
  • To receive prompt restitution[footnoteRef:14] [14: https://multco.us/dcj/victims-services/victim-rights]

Although some of these rights cannot be enforced by animals themselves those litigating on their behalf can do so. This can only happen if the legal boundaries are stretched to adequately protect them and to also extend the crime victim rights to them.

If these rights are not honored, there are ways to enforce them. One option is through a formal judicial process. Another option is to file an informal complaint with the states’ Department of Justice. This is very important because enforcement still remains a big challenge when it comes to the statutes that impact animals.

In addition unlike violent crimes against people, cases of animal abuse are not compiled by state or federal agencies, making it difficult to calculate just how common they are. This information is very important as it can help us to understand and prevent cases of abuse and to also encompass animals under the protection of the Act.

10. Conclusion

Recognizing animals as crime victims could potentially open flood gates in terms of how we think of animals but that does not mean they cannot be victims of crime. It would be very tricky but this would a big step forward for animals that are abused and suffering on daily protection. Animal cruelty prosecutions are expanding in number and scope, therefore in terms of the legal definition of ‘victim’, the law needs to be expanded. This creates the opportunity to broaden who society considers being worthy of meaningful protection under the law. We need to ask ourselves, is the capacity to suffer enough to redefine what it means to be a victim?

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