NOTE
The Massachusetts Anti-Cruelty
Statute: A Real Dog - A Proposal for a
Re-draft of the Current Law
Bobby the Scottish terrier had no owner. And as often happens to
smalltown dogs with no master, he was kicked around by just about
everybody, and had to scrounge through garbage to get anything to eat . . . .
But it happened that there was in the village a dying old man, named Jock.
In his last days, the old man noticed the plight of the sorry little dog. There
wasn’t much he could do, but he did buy the little fellow a meal one evening
at the local restaurant. Nothing fancy, just some scraps. But it would be
hard for anyone to over-estimate the extent of little Bobby’s gratitude.
Shortly thereafter, Jock died. When the mourners carried his body to the
grave, the terrier followed them. The gravediggers ordered him away, and
when he refused to leave they kicked him and threw rocks at him. But still
the dog stood his ground, and would not leave no matter what they did.
From then on, for no less than fourteen years, little Bobby honored the
memory of the man who had been kind to him. Day and night, through
harsh winter storms and hot summer days, he stood by the grave. The only
time he ever left the gravesite was for a brief trip each afternoon back to the
restaurant in which he had met Jock, in hopes of scavenging something to
eat. Whatever he got he would solemnly carry back to the grave, and eat
there. The first winter Bobby had almost no shelter, huddling underneath
tombstones when the snow was deep. By the next winter, the townspeople
were so touched by his brave and lonely vigil that they erected a small
shelter for him. And fourteen years later, when little Bobby died, they
buried him where he lay–alongside the man whose last gesture of kindness
he honored with such devotion.1
Today in Edinburgh, Scotland, in Greyfriar Square, a statue has been
erected to honor Bobby’s incredible loyalty. 2 Everyone has heard of
similar stories of a pet’s undying loyalty to his master – the dog who saves
the life of a child, the family pet who awakens a sleeping family in a
house fire, or the lost dog who traverses miles to be re-united with his
master.
1.
2.
JOHN ROBBINS, D IET FOR A NEW AMERICA 20-21 (1987).
See id. at 20.
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Animals have for centuries provided humans with comfort,
companionship, labour and a connection to our past. Animals are helpless
in defending themselves from humans with a dangerous propensity toward
them. To counteract that potential violence, we need to have more
protective measures to insure that animals are not mistreated or abused
and to adequately punish animal abusers. Presently, there are a significant
number of laws in force at both the federal and state level that offer
animals some type of protection. These laws do not act as effective
deterrents nor do they adequately punish offenders, primarily because they
are not effectively enforced.3 Law enforcement personnel relegate this
crime to a lower order offense and spend their limited time and resources
on crimes against humans.4 However, this lack of enforcement is not due
to the fact that the statutes are poorly drafted or do not adequately punish
offenders, but rather because there – in general – is no requirement that
those charged with enforcing the law do so. 5 Some anti-cruelty statutes
are very well written, mandating stiff fines and prison sentences. Others
address many of the issues behind the acts of abuse, such as the potential
for children who abuse animals to later escalate and direct their anti-social
behavior towards humans.6
This Note will address the current status of animal cruelty statutes in the
United States. Legislation in each state will be analyzed. Highlighted
will be Massachusetts animal cruelty laws and a proposal will be made for
amendments that would incorporate some of the best of the legislation
from around the country.
Part I will analyze the need and the human obligation to protect animals
in our society.7 Part II will discuss the link between animal abuse and
potential violence against humans.8 Part III will examine the current
status of federal and state animal protection laws, their enforcement, their
specific coverages, and their effect.9 Part IV will analyze the current
3.
See Gary L. Francione, Animals, Property and Legal Welfarism:
“Unnecessary” Suffering and the “Humane” Treatment of Animals, 46 RUTGERS
L. REV. 721, 769 (1994).
4.
See CLIFFORD J. SHERRY, A NIMAL R IGHTS 63, 82 (1994); see also DAVID
S. FAVRE & M URRAY LORING , ANIMAL LAW 122 (1983) (citing C.E. America v.
Antinori, 210 So.2d 443 (Fla. 1968) (deciding whether a simulated bullfight is
within the parameters of Florida’s anti-cruelty statute, stating that while “animals
were possessed of no inherent right to protection from cruelty or abuse at the hand
of man . . . in a more civilized society it is now generally recognized that
legislation which has for its purpose the protection of animals from harassment or
ill treatment is a valid exercise of police power”)).
5.
See infra notes 282-84 and accompanying text.
6.
See infra notes 21-33 and accompanying text.
7.
See infra notes 11-21 and accompanying text.
8.
See infra notes 22-33 and accompanying text.
9.
See infra notes 34-191 and accompanying text.
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Massachusetts law, and offer proposed legislative changes that would
make the law not only more effective, but also among the most
progressive in the nation.10
I. WHY DO WE NEED ANTI-CRUELTY LAWS?
At common law there was no crime of cruelty to animals. 11 All
prohibitions of cruelty are based on statutory language. 12 The original
purpose of cruelty legislation was not based on a concern for the animal,
but rather on a concern to protect animals deemed economically valuable
to society.13 Laws passed in the late 1800s became the basis for anticruelty legislation today.14 This early legislation incorporated both a
positive duty of care and a prohibition of certain types of behavior
directed at specifically protected animals. 15 Cruelty laws were justified by
more than a concern to protect animals. Instead, they were directed
against acts that tended to corrupt the morals of those who observed the
act.16 Today, all fifty states have some form of anti-cruelty statute.17
In addition, society has recognized that we have a moral obligation to
protect animals because they are unable to protect themselves. 18 As their
caretakers, guardians and protectors, we have a moral obligation to protect
animals from those more violent factions of mankind. 19 Because animals
do not have legal rights and are legally considered to be property, animals
lack standing. Therefore, animals and animal rights organizations lack the
ability to use the courts.20 The onus is then on us, acting through the state,
to protect and defend those animals unable to protect themselves.
See infra notes 192-305 and accompanying text.
See FAVRE & LORING , supra note 4, at 122.
See id. Unfortunately, many of these laws still on the books today bear
the mark of the early 1800s by using archaic terms and phrases more suited to
animals used for labor, and subsequently, judiciary interpretation of such terms has
been confusing and contradictory. See id. at 121-22.
13. See FAVRE & LORING , supra note 4, at 121-22 (stating that the goal of
society in passing anti-cruelty laws is to demonstrate that certain behavior is
unacceptable in our society, to establish a minimum level of care due animals by
society and to protect the property interests in animals for those in possession).
14. See id.
15. See id.
16. See id. For an example of how these laws are catalogued, see M ASS .
GEN. LAWS ch. 272, § 77 (2000) (“Crimes Against Morality, Good Order”).
17. See Pamela D. Frasch et al., State Animal Anti-Cruelty Statutes: An
Overview, 5 ANIMAL LAW 69 (1999).
18. See Randall Lockwood, Animal Cruelty and Violence Against Humans:
Making the Connection, 5 ANIMAL LAW 81 (1999); see also David Favre & Vivien
Tsang, The Development of Anti-Cruelty Laws During the 1800’s, 1 DET. C.L.
REV. 1, 2 (1983).
19. See Francione, supra note 3, at 739.
20. See GARY L. FRANCIONE, ANIMALS , P ROPERTY AND THE LAW 49 (1995).
10.
11.
12.
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Furthermore, how we treat animals is indicative of what type of society
we hope to become. Compassion towards animals is a building block in
becoming a less violent culture.21
II. THE LINK: ANIMAL ABUSE AS A PRECURSOR TO FURTHER
ANTI-SOCIAL BEHAVIOR
Of equal concern, however, is that cruelty to animals has been
scientifically linked to violent, aggressive behavior towards humans.22
Individuals who engage in cruelty toward animals have a greater
probability of committing violent acts against humans. 23 Especially
significant is the link between animal abuse by children and adults who
are violent offenders.24 Along with the recent spate of school shootings
Because animals have a property status, and therefore no legal rights, they have no
standing to sue in a court of law. In general, the courts have turned away suits by
animal protection societies and others as not having established viable harm. For
this reason, it is vital that either a state or federal law proscribe cruel and abusive
behaviors in order that covered animals can be protected through the legal process.
21. See Kellert & Felthous, Childhood Cruelty Toward Animals Among
Criminals and Non-Criminals, 38 HUM. REL. 1113-29 (1985). This research
involved men imprisoned for violent crimes compared to a group of non -violent
individuals who had not been imprisoned. Twenty five percent of the violent
offenders reported that they had been abusive toward animals during their
childhood years. By contrast, none of the non-violent individuals reported any
incidents of animal abuse. See also Frank Ascione, Children Who are Cruel to
Animals: A Review of Research and Implications for Developmental
Psychopathology, VI., No. 4 Anthrozoos 226-47. In this study, a more select
group was sampled and yielded even higher rates of cruelty toward animals.
22. See Arnold Arluke, Physical Cruelty Toward Animals in Massachusetts
1975-1996 (visited May 10, 2001) <http://www.psyeta.org/sa/sa5.3/Arluke1.html>
(showing a link between animal cruelty and perpetrating violence toward humans).
23. See Charlotte A. Lacroix, Another Weapon for Combating Family
Violence; Prevention of Animal Abuse, 4 ANIMAL L. 1, 8 (1998). The author cites
various anecdotal evidence as well as studies that demonstrate a correlation
between abuse of animals and violent aggressive behavior toward humans. Citing
cases of the Boston Strangler, serial killer Ted Bundy and Jeffrey Dahmer, all of
whom were known abusers of animals when they were children, the author seeks
to establish a link between such violent behavior towards animals in childhood and
later aggressive behavior in adulthood towards humans. The author also cites
various research studies that show that 75% of the 84 inmates charged with violent
crime had a history of cruelty toward animals. Another research study conducted
by Doctors Alan Felthous and Stephen Kellert showed that of aggressive criminals
interviewed, 25% reported five or more acts of cruelty towards animals. In 1980,
a pilot study was conducted in England in order to determine an effective method
of preventing and identifying family violence. Of 23 families that had a history o f
animal abuse, 83% were identified by social service agencies as having children at
risk of abuse or neglect. In Pennsylvania, a similar study was conducted that
found behavior towards one’s child was similar to behavior directed at one’s pet.
24. See A. William Ritter, Jr., The Cycle of Violence Often Begins with
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MASSACHUSETTS ANTI-CRUELTY STATUTE
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has been the discovery that each of the child gunmen involved in those
killings had a history of abuse toward animals. 25 Luke Woodham, of
Pearl, Mississippi, stabbed his mother to death and then killed two fellow
students at his high school. 26 After the tragedy, police found an entry in
his diary stating how he had beaten, burned and tortured his family dog. 27
Kip Kinkel walked into his high school cafeteria and opened fire on his
classmates, killing two and injuring twenty-two others.28 Friends stated
that he bragged about torturing and killing animals. 29 Andrew Golden, the
eleven-year-old gunman in the Jonesboro, Arkansas killing of a teacher
and four students, was known to shoot birds in his backyard. 30 Most
recently, the gunmen in the Columbine High School killings had bragged
to other students about how they had mutilated animals. 31 Even more
disturbing is that children who are found to abuse animals are often
themselves subject to abuse in the home.32 It seems clear then, that a
proactive approach to prosecution of animal abusers will have a twofold
effect. It will deter future incidents by instituting and enforcing greater
fines and longer sentences, and through the identification and prosecution
of offenders, it will stem future violence against humans. 33 In this way,
we can identify and intercede before children take the next step toward
violent behavior.
Violence Toward Animals, 30 FB PROSECUTOR 31, 32 (1997). It is recognized that
it is unacceptable to excuse or ignore acts of animal cruelty where such acts have
been shown to demonstrate a tendency toward violent behavior. By intervening,
especially in the case of the youthful offender, rehabilitation may prevent
subsequent violent behavior towards humans. See also James S. Hutton, Animal
Abuse as a Diagnostic Approach in Social Work: A Pilot Study, in NEW
PERSPECTIVES ON OUR LIVES WITH COMPANION ANIMALS 444, 444-47 (Adam H.
Katcher & Alan M. Beck eds., 1983).
25. See Ruth-Ellen Cohen, Animal Abuse Tied to Human Violence Seminar
Targets Criminals’ Childhood, BANGOR DAILY NEWS, Nov 5, 1998, at B2.
26. See id.
27. See id.
28. See id.
29. See id.
30. See id.
31. See Colorado High School Gunmen Linked to Animal Cruelties, Apr. 23,
1999 available in Humane Society of the United States News Room (visited Feb.
28, 1999) <http:/www.hsus.org/news/pr/042399.html>.
32. See Lacroix, supra note 23, at 12.
33. See Kellert & Felthous, supra note 21, at 1119.
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III. OVERVIEW OF CURRENT FEDERAL AND STATE ANIMAL
PROTECTION LAWS
A. The Federal Law
The United States was the first country in the world to enact legislation
aimed at protecting animals from cruel and abusive treatment. 34 It has
been documented that as early as 1641, the Puritans of the Massachusetts
Bay Colony forbade cruelty toward any brute creature kept by man.35
During the intervening years, there has been a multitude of legislation
in this area. Presently, there are a wide variety of federal laws in the area
of animal welfare. Federal laws provide for specific types of protection
within certain industries,36 offer protection to certain animal species, 37 and
protect animals on federal sanctuaries. 38 In addition, the Animal Welfare
Act sets specific guidelines for transportation and sale of laboratory
animals, exhibition of animals and protection of pets from theft.39 The
original purpose of the Act was to prohibit the theft of pets and to prevent
stolen pets from being sold or used as laboratory research animals. 40
Animals used in research are not directly protected under the statute, but
rather a research facility must establish a committee to oversee care of the
animals and procedures performed at the facility. 41 An additional
34. See EMILY S TEWART LEAVITT & D IANE HALVERSON, ANIMALS AND
THEIR LEGAL R IGHTS: A SURVEY OF AMERICAN LAWS FROM 1641 TO 1990 1 (4th
ed. 1990); see also Henry Cohen, Federal Animal Protection Statutes, 1 ANIMAL
LAW 143 (1995).
35. See LEAVITT & HALVERSON, supra note 34, at l.
36. See Humane Methods of Slaughter Act of 1978, 7 U.S.C. § 1901 (1999)
(providing for the humane slaughtering of livestock and poultry).
37. See Endangered Species Act of 1973, 16 U.S.C. § 1531 (1999)
(protecting and conserving endangered species and their survival ecosystems);
Marine Mammal Protection Act of 1972, 16 U.S.C. § 1361 (1999) (protecting sea
dwelling, warm-blooded, air breathing creatures from possible extinction); Wild
Free-Roaming Horses and Burros Act, 16 U.S.C. § 1331 (1999) (protecting wild
horses and burros from killing or capture); Migratory Bird Treaty Act, 16 U.S.C. §
703 (1999) (regulating the U.S. migratory bird population).
38. See 18 U.S.C. § 41 (prohibiting the killing of any bird, fish or wild
animal on federal sanctuary or refuge).
39. See 7 U.S.C. § 2131 (1999).
40. See id. The Act was originally introduced by New York Congressman
Joseph Y. Resnick (D-N.Y.) when a constituent approached him to assist in the
return of a stolen pet Dalmation. The purpose of the Act was to prevent dealers
from stealing pets and selling them for animal research purposes. The original
purpose of the Act has been expanded to include the humane treatment of animals
being transported and used for laboratory research purposes.
41. See 7 U.S.C. § 2143(b) (1999).
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protection was added to the Act when, in 1976, an amendment made the
sale of animals to be used for fighting ventures illegal.42
In addition, there are a number of other federal statutes that prohibit
abusive acts against animals, provide for conservation measures and
protect certain marine life.43 All of these federal laws combined still leave
significant numbers of both wild and domesticated animals at risk for
cruel and abusive treatment.
The United States does not have a federal anti-cruelty law. To fill this
gap, each of the fifty states have some form of anti-cruelty legislation.44
While some laws effectively protect a certain class of animals, each state
deals with the issue in a unique way. These statutes, along with the
federal law, offer a patchwork of protection that is neither consistently
applied, regulated nor enforced.45
In general, there has been a lack of enforcement in this area due to the
fact that prosecutors, working with limited staff and funds, are less likely
to prosecute animal cruelty cases than other types of violent crimes. 46
Recently, in response to a link established between animal abuse and
future violent behavior,47 as well as certain highly publicized cases of
animal abuse,48 state legislators have increased penalties, and today more
than half of the states make the offense of animal cruelty a felony. 49 Each
state’s anti-cruelty laws are a unique reflection of legislative action, public
sentiment, and the philosophy of that particular region of the country.
B. State Anti-Cruelty Statutes
Cruelty to animals defined:
The infliction of pain, suffering, or death upon an animal, when not
necessary for purposes of training or discipline or . . . to procure food or to
release the animal from incurable suffering, but done wantonly, for mere
sport, for the indulgence of a cruel and vindictive temper, or with reckless
indifference to its pain.50
See 7 U.S.C. § 2156 (1999).
See generally Henry Cohen, Federal Animal Protection Statutes, 1
ANIMAL LAW 143 (1995).
44. See Frasch et al., supra note 17, at 69-75.
45. See id.
46. See FAVRE & LORING , supra note 4, at 70. While reliable statistics are
unavailable due to a lack of a required reporting system, in any major city
approximately 5,000 abuse complaints are processed annually, resulting in 10-20
prosecutions and jail time of 10-30 days for fewer than 10% of those convicted.
47. See supra note 18 and accompanying text.
48. See infra notes 285-305 and accompanying text.
49. See Frasch et al., supra note 17, at 70.
50. B LACK’ S LAW D ICTIONARY 377 (6th ed. 1990).
42.
43.
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All fifty states have enacted some form of a criminal statute to protect
animals, either mandating minimum levels of care that need to be
provided or prohibiting certain types of acts. 51 The degree of protection
afforded as well as the type of animals protected varies considerably
between jurisdictions.52 Additionally, the penalties for offenses range
from petty misdemeanors (including disturbing the peace) to felonies. 53
Generally, first time offenses for acts and omissions of knowing,
intentional or reckless forms of animal cruelty are punishable as
misdemeanors.54
The severity of the penalty increases with any
subsequent violation of the statute, culminating in a felony charge in some
jurisdictions.55 Where the act is done by means of torture, mutilation, or
unnecessary cruelty, it is generally punishable as a felony.56
A number of states impose felony sanctions for first time offenses for
specific acts delineated in the animal cruelty statutes. 57 In Florida, the act
must be committed intentionally and result in the cruel death of the
animal,58 or the act must be intentional and involve excessive or repeated
infliction of unnecessary pain or suffering. 59 Arizona differentiates
between various types of animal abuse deeming certain acts to be subject
to felony prosecutions.60 These include intentionally or knowingly: (1)
subjecting an animal in one’s custody to cruel neglect or abandonment
resulting in serious physical injury; 61 (2) subjecting an animal to cruel
mistreatment;62 or (3) interfering with, killing or harming a working or
service animal.63 Delaware classifies abuse as a felony where that act of
See Frasch et. al., supra note 17, at 69.
See id.
See infra notes 57-110 and accompanying text.
See infra notes 96-110 and accompanying text.
See infra notes 96-108 and accompanying text.
See infra notes 57-95 and accompanying text.
See ARIZ. REV. STAT. ANN. § 13-2910(F) (West 2001); CAL. PENAL
CODE § 597 (West 2001); CONN. GEN. STAT. ANN. § 53-247 (West 1994 & Supp.
2001); DEL. C ODE ANN. tit. 11, § 1325(b) (2000); FLA. STAT. § 828.12(2) (2000);
IDAHO CODE § 25-3503 (2000); LA. REV. STAT. ANN. §14:102.1(B)(4) (West
2000); MISS. C ODE A NN. § 97-41-15 (2000); MO. REV. S TAT. § 578.012 (2000);
NEB. REV. S TAT. § 28-1009(2) (2000); N.H. REV. STAT . ANN. § 644:8 (III-a)
(2000); N.Y. AGRIC. & M KTS . LAW § 353-a (McKinney 2000); N.C. GEN. STAT. §
14-360(b) (2000); OKLA. S TAT. tit. 21, § 1685 (2000); R.I. GEN. LAWS § 4-1-5(a)
(2000); VT. STAT. ANN. tit. 13, §§ 352a, 353 (2000); WASH. REV. CODE §
16.52.205(2) (2000); WIS. STAT. § 951.18 (2001).
58. See FLA. S TAT. § 828.12(2) (2000).
59. See id.
60. See ARIZ. R EV. S TAT. ANN. § 13-2910(F) (West 2001).
61. See id. § 13-2910(A)(7).
62. See id. § 13-2910(A)(8).
63. See id. § 13-2910(A)(9).
51.
52.
53.
54.
55.
56.
57.
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cruelly killing or injuring an animal is intentional. 64 California takes a
unique approach and allows prosecution of an act of malicious and
intentional maiming, mutilating, torturing, wounding or killing of an
animal to be either a misdemeanor or a felony charge. 65 (A 1976
amendment to the statute deleted the term of years which at that time was
five and substituted the words “in the state prison.”) 66 Connecticut
mandates a felony punishment for conviction of an act of maliciously and
intentionally maiming, mutilating, torturing, wounding or killing an
animal.67 Louisiana law makes simple cruelty a misdemeanor 68 and
aggravated cruelty a felony.69 Aggravated cruelty is defined in the statute
as intentionally or with criminal negligence torturing, maiming or
mutilating an animal.70 This may result in imprisonment of up to ten years
as well as a fine of up to $25,000.71 In addition, each act against an
animal is a separate offense and may be charged as such.72 Under
Missouri law, animal abuse is a misdemeanor 73 unless the suffering caused
to an animal is the result of torture or mutilation consciously inflicted
while the animal is still living.74 In those instances the act may be
prosecuted as a felony.75 The State of New Hampshire provides that
where it can be shown that the act of cruelty (defined as beating, cruelly
whipping, torturing or mutilating an animal) is purposeful, the charge is a
felony.76 Under New York law, aggravated cruelty to an animal is a
felony.77 The statute defines aggravated cruelty as an intentional act
resulting in the death or serious physical injury to a companion animal. 78
North Carolina recognizes malicious torture, an act of mutilation or
maiming or the cruel beating, disfigurement, poisoning or killing of an
animal as a felony.79 Mississippi makes cruelty to any living creature a
See DEL. CODE ANN. tit. 11, § 1325(b)(4) (2000).
See CAL. PENAL CODE § 597(a)-(c) (West 2001).
See 1976 Cal. Stat. c. 1139, p. 5132, § 250.
See CONN. GEN. STAT. ANN. § 53-247(b) (West 1994 & Supp. 2001).
See LA. REV. STAT. ANN. § 14:102.1(A)(2)(a) (2000).
See id. § 14:102.1(B)(4).
See id. § 14:102.1(B)(1).
See id. § 14:102.1(B)(4).
See id. § 14:102.1(B)(5).
See MO. REV. STAT. § 578.012(2) (2000).
See id.
See id.
See N.H. REV. STAT. ANN. § 644:8(III-a) (2000).
See N.Y. AGRIC. & MKTS. LAW § 353-a(3) (McKinney 2000).
See id. § 353-a(1) (defining companion animal as any dog or cat or other
domesticated animal normally maintained in or near the household of the owner,
but not a farm animal).
79. See N.C. GEN. S TAT. § 14-360(b) (2000).
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75.
76.
77.
78.
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misdemeanor80 but makes it a felony offense to maliciously injure
livestock.81 Oklahoma law recognizes cruelty to animals as a felony
punishable by up to five years in the state penitentiary or by a one-year
prison term in the county jail.82 The Vermont Legislature has made
aggravated cruelty a felony offense.83 Aggravated cruelty in that state is
defined as an intentional killing that causes an animal undue pain or
suffering.84 The State of Washington establishes degrees of animal
cruelty.85 First degree animal cruelty, defined as intentionally inflicting
substantial pain, causing physical injury or killing by means of undue
suffering or forcing a minor to commit same, is classified as a felony. 86 In
Wisconsin, any intentionally cruel act against an animal that results in
mutilation, disfigurement or death of an animal is a felony. 87 Rhode
Island’s general anti-cruelty statute is a misdemeanor.88 However, for a
malicious injury or dismembering of an animal or a malicious poisoning, a
person is subject to a felony punishment.89 Nebraska’s general anticruelty statute is punishable as a misdemeanor 90 except for the
circumstance in which a person harasses a police animal while it is
performing official duties and that harassment results in the death of the
animal.91 Such an act constitutes a felony in the state. 92 Idaho makes it a
felony to willfully or maliciously administer poison to an animal,93 but
makes all other types of animal abuse a misdemeanor. 94 Finally,
numerous states make any involvement in, or promotion of, dog fighting
punishable as a felony.95
Nine other states make the offense of cruelty to animals a misdemeanor
for first-time offenders but add significant penalties for subsequent
offenses. Michigan makes a second offense of animal cruelty a felony
See MISS. CODE ANN. § 97-41-1 (2000).
See id. § 97-41-15(1).
See OKLA. STAT. tit. 21, § 1685 (2000).
See VT. STAT. ANN. tit. 13, § 353(a)(2) (2000).
See id. § 352a.
See WASH. REV. CODE §§ 16.52.205, 16.52.207 (2000).
See id. § 16.52.205.
See W IS. STAT. § 951.18(1) (2001).
See R.I. GEN. LAWS § 4-1-2(a) (2000).
See id. § 4-1-5(a).
See NEB. REV. STAT. § 28-1009(1) (2000).
See id. § 28-1009(2).
See id.
See IDAHO CODE § 25-3503 (2000).
See id. § 25-3504.
See DANIEL S. MORETTI, A NIMAL R IGHTS AND THE LAW 127 (Irving J.
Sloan ed., 1984). Dog fighting statutes are beyond the scope of this Note and will
not be discussed any further herein.
80.
81.
82.
83.
84.
85.
86.
87.
88.
89.
90.
91.
92.
93.
94.
95.
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MASSACHUSETTS ANTI-CRUELTY STATUTE
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punishable by imprisonment for up to two years 96 and a third offense of
animal cruelty a felony punishable by imprisonment of up to four years.97
Both Indiana98 and Montana99 law require that a second offense for
torturing or mutilating an animal be prosecuted as a felony. New Mexico
does not impose a felony sanction until the offender has committed the act
of animal cruelty on four different occasions.100 Nevada law makes the act
of animal cruelty, which includes acts as well as omissions, punishable as
a felony upon the third offense within a seven-year period.101 Under
Pennsylvania law, a second conviction of willfully and maliciously
maiming, killing, mutilating, torturing, poisoning or disfiguring a dog or
cat is punishable as a felony. 102 Texas requires a person to have been
previously convicted of cruelty to animals twice before that person can
subsequently be charged with a felony offense.103 Cruelty to animals
under Texas law includes intentionally or knowingly torturing or seriously
overworking an animal; failing to provide food, care or shelter; animal
abandonment; transporting an animal in a cruel manner; killing, injuring
or administering poison to an animal; tripping a horse; using a live animal
as a lure for dog race training; or animal fighting. 104 Virginia’s anticruelty statute subjects a second-time offender to a felony punishment
only if either violation resulted in the death of the animal.105 That death
may be a result of the acts of the person against the animal or from
euthanasia administered as a necessity due to the condition of the animal
as a result of those acts.106 South Carolina imposes a felony sanction for a
third offense of the state’s anti-cruelty law.107 Cruelty is defined as the ill
treatment of an animal or depriving the animal of necessary sustenance or
shelter or inflicting unnecessary pain or suffering on the animal.108
The remaining twenty-four states punish an act of animal cruelty as a
pure misdemeanor. Those penalties for violation of the statute range from
a high of two years imprisonment and/or a $5,000 fine in the State of
Iowa,109 to a low of a $700 fine and/or imprisonment for up to 90 days in
the State of Minnesota.110
96.
97.
98.
99.
100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
See
See
See
See
See
See
See
See
See
See
See
See
See
See
MICH. COMP. LAWS § 750.50(4) (2000).
id.
IND. CODE § 35-46-3-12(a) (2000).
MONT. CODE A NN. § 45-8-211(2)(a) (2000).
N.M. STAT. ANN. § 30-18-1(C) (Michie 2000).
NEV. REV. STAT. § 574.100(2)(c) (1999).
PA. CONS. STAT. ANN. tit. 18, §§ 5511 (2.1)(i)-(ii) (West 2000).
TEX. PENAL CODE ANN. § 42.09(d) (West 1999).
id. §§ 42.09(a)(1)-(5).
VA. CODE ANN. § 3.1-796.122(B) (Michie 2000).
id.
S.C. CODE ANN. § 47-1-40(A) (Law. Co-op. 2000).
id.
IOWA CODE § 717B.2 (2000) (making animal abuse an aggravated
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C. Types of Animals Protected
States vary on their approach to which types of animals will be
protected by their anti-cruelty statutes. The statutes may provide for
protection of “an animal” or “any living animal” 111 or use such terms as
useful,112 sentient,113 dumb,114 brute115 or living116 to modify “creature”
without further clarification. Other states afford protection to animals that
are either domesticated or have been taken into captivity from the wild. 117
The remaining states are divided between including all living creatures
except humans and those that specifically name included animal
species.118 In addition, most states exempt hunting, fishing, trapping,
slaughtering of animals and animals used for experimentation. 119
misdemeanor, defined in section 903.1(2) of the Iowa Code, as punishable by
“imprisonment not to exceed two years” and a fine ranging from $500 to $5,000).
110. See M INN. S TAT. § 343.21, Subd. 9 (2000); see also MINN. S TAT. §
609.02, Subd. 3 (providing sentencing and fines for misdemeanors).
111. See A LA. C ODE § 13A-11-14 (1999); C AL. P ENAL C ODE § 597 (West
2001); CONN. GEN. S TAT. ANN. § 53-247 (West 1994 & Supp. 2001); GA. C ODE
ANN. § 16-12-4(a) (2000); KAN. STAT. A NN. § 21-4310 (2000); KY. REV. STAT.
ANN. § 525.130 (Banks-Baldwin 2000); LA. REV. STAT. ANN. § 14:102.1 (West
2000); MASS. GEN. LAWS ch. 272 § 77 (2000); ME. REV. STAT. ANN. tit. 17 § 1031
(West Supp. 2000); MONT. CODE A NN. § 45-8-211 (2000); NEB. REV. STAT. § 281009 (2000); OHIO REV. CODE ANN. § 959.13 (West 2000); OKLA. STAT. tit. 21
§1685 (2000); W. VA. CODE § 61-8-19 (2000).
112. See N.C. GEN. S TAT. § 19A-1(1) (2000).
113. See VT. S TAT. ANN. tit. 13, § 351(1) (2000); D.C. C ODE A NN. § 22-813
(1996).
114. See C OLO. R EV. S TAT. ANN. § 18-9-201(2) (West 2001); FLA. S TAT. ch. §
828.02 (2000); WYO. STAT. A NN. § 11-29-101(a)(i) (Michie 2000).
115. See N.J. S TAT. ANN. § 4:22-15 (West 2000).
116. See ARK. C ODE ANN. § 5-62-110 (Michie 2001); MD. ANN. C ODE of
1957, art. 27 § 62 (2000); MISS. CODE ANN. § 97-41-1 (2000).
117. See HAW. R EV. S TAT. § 711-1100 (2000); N.H. R EV. S TAT. ANN. §
644:8(II) (2000); PA. CONS. S TAT. ANN. § 5511(a)(1)(i) (2000); S.C. CODE ANN. §
47-1-10 (Law. Co-op. 2000); TENN. CODE ANN. § 39-14-201(1) (2000); TEX.
PENAL CODE A NN. § 42.09(c)(1) (West 1999); UTAH CODE ANN. § 76-9301(11)(b)(1)(ii) (2000).
118. See A LASKA S TAT. § 11.16.140(c) (Michie 1999); ARIZ. R EV. S TAT. §
13-2910 (2001); DEL. CODE ANN. tit. 11, § 1325 (2000); MO. REV. STAT. §
578.012 (2000); IDAHO CODE § 25-3502 (2000); IND. CODE § 35-46-3-12 (2000);
MICH. COMP. LAWS § 750.50 (2000); MINN. STAT. § 342.20 (2000); NEV. REV.
STAT. § 574.050 (1999); N.M. STAT. ANN. § 30-18-1 (Michie 2000); N.Y. AGRIC .
& MKTS. LAW § 350 (McKinney 2000); N.D. CENT. CODE § 36-21.1-01 (1999);
R.I. GEN LAWS § 7-1-1 (2000); S.D. CODIFIED LAWS § 40-1-1 (Michie 2000); VA.
CODE A NN. § 3.1-796.66 (Michie 2000); WASH. REV. CODE § 16.52.011(2)(a)
(2000); WIS. STAT. § 957.01 (2001).
119. See Frasch et.al., supra note 17 at 77.
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The purpose of anti-cruelty statutes has been previously elaborated in
Part I of this Note. But to apply the purpose of these statutes to animals is
to insure that all animal species are protected from the infliction of
unnecessary pain and suffering.120 To differentiate between domesticated
and wild animals seems nonsensical, for both suffer pain from similar ill
treatment. Likewise, to discriminate between species is without basis. It
can be shown that all living creatures respond to pain stimulus and to
allow that suffering without justification is immoral. 121 “Pain and
suffering are bad and should be prevented or minimized, irrespective of
the race, sex or species of the being that suffers.” 122 However, the line
must be drawn somewhere and in writing a criminal statute the term
should be clearly defined in order to promote efficient application of the
law and to insure that the statute reflects the intent of the legislature.
D. Mens Rea - Level of Culpability Imposed by Statute
Written into the various state statutes are the levels of intent necessary
to be prosecuted for animal cruelty offenses. They run the gamut from
intentionally, willingly, knowingly, recklessly, wantonly or maliciously to
strict liability in performing or failing to perform an act. The prosecutor
must show the required intent in order to gain a conviction against an
offender. An intentional, knowing or willful purpose is somewhat easier
to prove than a malicious purpose. A malicious act is more heinous and is
deemed a more reprehensible act by society and therefore more severely
punished. Many statutes have varying levels of punishment based upon
differing levels of intent. But before the statutes can be analyzed, a quick
review of criminal intent follows.
1. General and Specific Intent
General intent is the intent to do an act which is sufficient in itself to
constitute the element of criminal intent. It does not matter whether or not
the accused is aware that the act is criminal in nature, unless there is a
justification or excuse.123 (In anti-cruelty statutes justification or excuse
may be defending animals on one’s property from attacking animals or
120. This Note does not address practices by humans that result in animal
suffering in the areas of farming methods, scientific experimentation, hunting,
trapping, circuses, zoos or rodeos. To address those issues is beyond the scope of
this research. However, that is not to discount the great amount of unnecessary
suffering resulting from these activities. See PETER S INGER, PRACTICAL E THICS
57-78 (2d ed. Cambridge Univ. Press 1997).
121. See id. at 57.
122. See id. at 61.
123. See J USTIN MILLER , HANDBOOK OF C RIMINAL LAW 57 (West 1934).
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self-defense against an attacking animal).124
This encompasses a
presumption of knowledge of wrongfulness on the part of the accused in
the doing of a particular act. While common law crimes may require only
a general intent, statutory crimes are usually more specific. Thus, when a
crime requires a specific intent – that is, a specific state of mind in
committing the act – that becomes an element of the crime and must be
proved along with the act itself.
2. Statutory Intent - Malice
The term malice denotes a mental state intent on greater harm or injury
than is required in the showing of general intent. 125 “Malice means a
wrongful act done intentionally without just cause or excuse or which the
doer knows will injure another.”126 As an element of intent in anti-cruelty
statutes, malice is punishable as a more severe offense than an act done
with intention or knowledge. 127 In State v. Burgess,128 the court attempted
to define malice within an anti-cruelty statute. Recognizing that malice is
not an easy term to define, the court relied in part on the Black’s Law
Dictionary129 definition. That definition states that malice is “[t]he
intentional doing of a wrongful act without just cause or excuse, with an
intent to inflict an injury or under circumstances that the law will imply an
evil intent . . . . A condition of the mind showing a heart regardless of
social duty and fatally bent on mischief.” 130 Additionally, the court noted
that “[m]ost definitions [of malice] include one or more terms such as
wicked, evil, depraved or cruel.”131 In that case the court held the act of
the defendant, in killing a cow by shooting it in the eye was not
malicious.132 The court went on to say that if the defendant had tortured
the animal by repeatedly stabbing it until it died, or had beat the animal
until it died a slow, agonizing death, or if he had burned the cow to death
or used any other inhumane method, that would show a wicked and
depraved heart.133 The court further noted that proof that the defendant
See, e.g., TEX. PENAL CODE A NN. §§ 42.09(e), 42.09(f) (West 1999).
See MILLER, supra note 123, at 69.
See id. (footnotes omitted).
See, e.g., CONN. G EN. STAT. ANN. § 53-247(b) (West 1994 & Supp.
2001) (increasing maximum fine from $1,000 to $5,000 and maximum sentence
from one year to five years); N.C. GEN. STAT. § 14-360(b) (2000) (increasing
offense from misdemeanor to Class 1 felony).
128. 516 S.E.2d 491 (W.Va. 1999).
129. See id. at 493.
130. B LACK’ S LAW D ICTIONARY 956 (6th ed. 1990).
131. Burgess, 516 S.E.2d at 494.
132. See id.
133. See id.
124.
125.
126.
127.
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killed the animal just to watch it die, or killed the animal out of spite or to
annoy the animal’s owner would constitute malice. 134
Sometimes the term is defined within the statute itself. For instance,
Idaho’s animal cruelty statute defines the term malicious as “the
intentional doing of a wrongful act without just cause or excuse, with an
intent to inflict an injury or death.” 135 North Carolina defines a malicious
act as one “committed intentionally and with malice or bad motive.” 136
California’s anti-cruelty statute prohibits the malicious and intentional
injuring or killing of an animal and defines that term using the California
Penal Code.137 Under the California Penal Code, malice is defined as “a
wish to vex, annoy, or injure another person, or an intent to do a wrongful
act.”138 Pennsylvania’s statute requires a willful and malicious intent to
sustain an act of cruelty. 139 In addition, the courts have defined the intent
of malice as requiring “a malevolent purpose or a spirit of wickedness or
cruel wantonness or a reckless disregard of the rights and feelings of the
brute creature.”140
It is clear that requiring an element of malice for the crime of cruelty to
animals will impose upon the prosecutor the necessity of a greater burden
of proof. With that requirement, however, a state may distinguish
between offenses where cruelty toward an animal is the result of ignorant
behavior and offenses where cruelty arises from an intentional but not
malicious act, and establish other appropriate levels of punishment. The
state is then free to assess differing levels of sentencing for the crimes. In
this way the more heinous crime can be punished in a more severe
manner.
3. Specific Intent - Wanton and Willful
Wantonness is the “[c]onscious doing of some act or the omission of
some duty with knowledge of existing conditions and consciousness that,
from the act or omission, injury will likely result to another.” 141 Willfully
is defined as more than intentional and implying a bad purpose when
doing an act.142 In order to establish the element of willfulness, the
See id. at 494 n.2.
IDAHO CODE § 25-3502(5) (2000).
N.C. GEN. STAT. § 14-360(c) (2000).
See CAL. PENAL CODE § 597(a) (West 2001).
CAL. PENAL CODE § 7(4) (West 2001).
See PA. CONS. STAT. ANN. § 5511(a)(1) (West 2000).
Commonwealth v. Harris, 36 Pa. D. & C. 122, 125 (1940) (holding that
selling a lame horse for work may satisfy the element of malice if it can be shown
the horse is actually in pain and unable to walk.)
141. B LACK’ S LAW D ICTIONARY 1582 (6th ed. 1990).
142. See MILLER , supra note 123, at 70.
134.
135.
136.
137.
138.
139.
140.
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prosecution needs to show that the accused has acted in a knowing manner
“with respect to the material elements of the offense.”143 In interpreting
the North Carolina anti-cruelty statute, the state court held that the word
willful signifies more than the intention to do an act, it means the actual
commission of the act without just cause, excuse or justification. 144
4. Intentionally and Knowingly
As used in a criminal statute the word knowingly requires a state of
mind where the accused is aware of the criminality of an act but yet
continues to do the act.145 The requirement is intended to exclude acts
done unwittingly, or those occurring due to mistakes of fact or
accidents.146 Intent is established when it can be shown that a person who
acts intends a result, regardless of that result happening. 147 Also, when a
person acts without a particular result in mind, yet with a practical
certainty that a particular result will occur, the element of intent will be
satisfied.148 For instance in Dallas v. State,149 the appellate court found
that where evidence showed that a kennel operator had knowledge of
neglect and starvation of animals in the kennel, it established the requisite
knowledge to show defendant’s neglect toward the plaintiff’s animal. 150
Knowledge of the other dogs’ condition made it more probable that the
kennel owner knew of the plaintiff’s dog’s condition. 151 In determining
what constitutes a purposeful and intentional infliction of injury and
suffering under section 578.007(6) of the Missouri animal cruelty
statute,152 the Missouri Court of Appeals interpreted the statute as
requiring an intent or desire to inflict injury and suffering.153 In upholding
a lower court conviction, the court interpreted the plaintiff’s actions of
stabbing a mother cat out of rage and then slicing the cat from throat to
groin while still alive, as clear evidence of an intent to inflict suffering
143. MODEL P ENAL C ODE § 2.02(8) (1985).
144. See State v. Fowler, 205 S.E.2d 749, 751 (N.C. Ct. App. 1974) (citing
State v. Dickens, 1 S.E.2d 837, 839 (1939)).
145. See MILLER , supra note 123, at 70.
146. See id.
147. See FAVRE & LORING , supra note 4, at 153.
148. See WAYNE R. LA FAVE & A USTIN W. S COTT, HANDBOOK ON C RIMINAL
LAW 196 (West 1972); see also MODEL PENAL CODE § 2.02(b) (1985).
149. No. 01-96-00169-CR, 1999 WL 681881, at *4 (Tex. App. 1999).
150. See id.
151. See id.; see also Pine v. State, 889 S.W.2d 625, 633 (Tex. App. 1994)
(holding that evidence of other animals’ appearance from lack of food, care and
shelter on plaintiff’s property was relevant to show intent).
152. See MO. R EV. S TAT. § 578.012 (1.)(2) (2000).
153. See State v. Hill, 996 S.W.2d 544, 546 (Mo. Ct. App. 1999).
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upon the animal.154 When the element of intent is essential to the crime
charged, a court will infer from the acts of the accused and the
surrounding circumstances whether that burden has been met. 155
5. Recklessly
Recklessness is the act of consciously disregarding a substantial and
unjustifiable risk to another.156 The risk must be a gross deviation from
the standard of conduct of most law-abiding persons.157 Ohio defines
recklessly as when a person acts “with heedless indifference to the
consequences, he perversely disregards a known risk that his conduct is
likely to cause a certain result or is likely to be of a certain nature.” 158
Under the Ohio animal cruelty statute, there is no required mental state as
an element of the crime written into the statute. 159 The statute provides
that, “[n]o person shall: . . .” and then lists various types of prohibited
activities.160 A recent Ohio decision interpreting that statute determined
that when the statute specifies neither culpability nor plainly indicates a
purpose to impose strict liability, the standard of recklessness will be the
default.161 Relying on that precedent, the court in State v. Bergen,162
interpreted the statute not as a strict liability offense but rather as a statute
requiring a mens rea of recklessness.163 In Bergen, the defendant tied his
Great Dane, Duke, to a chain link fence with a twenty-five foot leash.164
Sometime during the next twenty-four hours, while the defendant was
away from his home, Duke wrapped his leash around a tree preventing
him from getting out of the sun and heat and onto the shaded porch.165 As
a result, “Duke had died of overheating, literally cooking in the sun.” 166
While the defendant’s actions were the proximate cause of Duke’s death,
the court held that the defendant had no knowledge that the tree in the area
154. See id. at 547.
155. See State v. West, 262 So.2d 457, 458 (Fla. Dist. Ct. App. 1972)
(concluding that state of mind is a factual question to be determined by the trier of
fact, where that trier has the opportunity to observe and then weight witness
testimony).
156. See LA FAVE & S COTT, supra note 148, at 209.
157. See MODEL P ENAL C ODE, § 2.02 (2)(c) (1985).
158. OHIO R EV. C ODE ANN. § 2901.22(c) (West 2000).
159. See id. § 959.13 (A)(2).
160. See id.
161. See State v. Myers, 621 N.E.2d 881, 886 (Ohio Ct. App. 1993).
162. 700 N.E.2d 345 (Ohio Ct. App. 1997).
163. See id. at 346.
164. See id. at 345.
165. See id. at 345-46.
166. Id. at 346.
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the dog normally used would create such a hazard. 167 At trial, the
defendant testified that since acquiring Duke as a puppy, he had provided
the dog with love and attentive care. 168 The court reversed the conviction
finding that the required element of intent, recklessness, had not been
proven by the state.169
6. Criminal Negligence
Criminal negligence is more than ordinary tort negligence. 170 It is a
degree of carelessness or negligence that can be termed gross negligence
and is a departure from what the ordinarily careful prudent person would
do under the same circumstances.171 In short, it is unjustified risk taking.
It is the lowest level of culpability applied to one who fails to “perceive a
substantial and unjustifiable risk incurred by his action or inaction.”172
7. Strict Liability
Common law crimes require proof of a particular mental state as an
element in establishing guilt.173 A person cannot be found guilty of such a
common law crime without proving the element of intent. 174 Strict
liability crimes, on the other hand, are statutory in nature created by the
legislature to address behaviors that seriously affect the public and where
establishing intent may be difficult.175 They are unlawful acts (usually
endangering the public welfare) that do not require the state to prove the
element of criminal intent.176 In general, strict liability offenses are
limited to minor crimes characterized as public welfare offenses. 177
Typical offenses, which usually carry light sentences, may include
167. See id.
168. See Bergen, 700 N.E.2d at 346.
169. See id.; cf. State v. Babcock, No. 98-G-2144, 1999 WL 689939, at *4-5
(Ohio Ct. App. Aug. 27, 1999) (upholding a conviction of cruelty to animals in
violation of the Ohio animal cruelty statute stating that the defendant “acted
recklessly in failing to provide wholesome food and water to some of his confined
animals”).
170. See LA FAVE & S COTT, supra note 148 at 212.
171. See id. at 212; see also MODEL P ENAL C ODE, § 2.02(2)(d) (1985) (stating
that a person acts negligently when he should be aware of an unjustifiable risk that
will result from his conduct).
172. FAVRE & LORING , supra note 4, at 131.
173. See LA FAVE & S COTT, supra note 148, at 218.
174. See id.
175. See id. at 219-20.
176. See B LACK’ S LAW D ICTIONARY 378 (7th ed. 1999).
177. See LA FAVE & S COTT, supra note 148, at 218.
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violations of the liquor laws, pure food laws, or motor vehicle and traffic
regulations.178
In contrast, however, a statute that is silent as to a mens rea requirement
is not necessarily a strict liability statute. 179 Two issues may be raised by
a defendant - that the legislature was remiss in not inserting language of
fault or, that the statute is void for vagueness and therefore
unconstitutional.180 With regard to the second issue, strict liability crimes
have generally been upheld as constitutional by the courts. 181 Where
penalties are small and the conviction would not unduly damage one’s
reputation, courts will uphold statutes that sanction the guilty act alone
without mentioning intent.182
Under the Missouri animal neglect statute a person may be charged
without establishing a mental element for the crime. 183 In State v.
Marshall,184 the defendant allowed his pit bull dogs to roam freely. 185 The
dogs attacked a neighbor and, to protect his mother, her son shot and
killed the dogs.186 The defendant owner of the pit bull dogs was convicted
of animal neglect for the harm that resulted to the animals for failing to
keep them under control.187 The court upheld the conviction construing
the language of the statute and the intent of the legislature as imposing
strict liability.188 The statute, designed to protect the public welfare,
imposes a heightened duty on an animal owner to maintain control over
178. See Francis Bowes Sayre, Public Welfare Offenses, 33 C OLUM . L. R EV.
55, 78 (1933).
179. See LA FAVE & S COTT, supra note 148, at 219.
180. See id.
181. See id.
182. See Morissette v. United States, 342 U.S. 246, 255 (1952); see also
Commonwealth v. Tart, 557 N.E.2d 1123, 1124 (Mass. 1990).
183. See MO. R EV. S TAT. § 578.009 (2000). The statute states, in pertinent
part: “A person is guilty of animal neglect when he has custody or ownership . . .
of an animal and fails to provide . . . adequate care which results in substantial
harm to the animal.” Id.
184. 821 S.W.2d 550 (Mo. Ct. App. 1991).
185. See id. at 550-51.
186. See id. at 551.
187. See id.
188. See id. at 551-52; see also State v. Prociv, 417 N.W.2d 840, 842 (N.D.
1988) (relying on legislative history, and the legislature’s “manifest purpose and
design” in determining that the North Dakota anti-cruelty statute requires no
element of culpability be proven); State v. Stanfield, 314 N.W.2d 339, 343 & n.10
(Wis. 1982) (upholding conviction under the state’s former anti-cruelty statute
(substantially similar to present law) which did not contain words of intent and
reflected a legislative mandate eliminating the element of culpability and, refusing
to read into the statute a scienter requirement, even in light of a potential prison
sentence upon conviction, noting that the court had previously upheld strict
liability statutes with substantially greater penalties).
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one’s animals.189 And, regardless of the intent of the defendant, the injury
remains the same.190 Additionally, the court noted that because the
penalties for violating the statute are relatively small (possible
imprisonment of not more than 15 days and/or a fine not to exceed $300),
the conviction did not violate due process. 191
IV. THE MASSACHUSETTS ANTI-CRUELTY STATUTE
The Massachusetts anti-cruelty statute was originally drafted in 1835. 192
As a result, the language in the statute used to describe acts of cruelty is
largely reflective of that era.193 Although the statute has been amended
thirteen times since its initial passage, 194 the language used to describe
cruelty continues to use archaic terms. The words as applied demonstrate
a time when animals were used as beasts of burden. 195 In its present form
the statute is written much the same as the original version. The first
clause of the statute describes as cruelty the act by a person of
overworking, overloading or driving of an animal when overloaded as
well as the deprivation of sustenance, beating, mutilating or killing an
animal or a person causing or procuring such cruelty. 196 The second
clause addresses the cruel treatment of animals used in races, games,
contests or training for those activities. 197 The third clause addresses
individuals having the “charge or custody” of an animal either as owner or
otherwise.198 The statute is violated when such a person inflicts
“unnecessary” cruelty or “unnecessarily” fails to provide for the animal
food, drink, shelter, a sanitary environment, protection from weather or
drives an animal unfit for labor or willfully abandons the animal. 199 The
statute requires proof of willful intent only with regard to abandonment of
189. See Marshall, 821 S.W.2d at 551-52.
190. See id. at 552 (citing Morrisette v. United States, 342 U.S. 246, 256
(1952)).
191. See id.
192. See R.S. 1836, ch. 130, § 22.
193. The statute continues to use the standard terms in most state laws
including: “[w]hoever overdrives, overloads, drives when overloaded, overworks.”
MASS. GEN. LAWS ch. 272, § 77 (2000).
194. See R.S. 1836, ch. 130, § 22; St. 1859, ch. 96; G.S. 1860, ch. 165, § 41;
St. 1868, ch. 212, §§ 1-4; St. 1869, ch. 344, §§ 1, 2; P.S. 1882, ch. 207, §§ 52, 53;
R.L. 1902, ch. 212, § 70; St. 1968, ch. 59; St. 1972, ch. 46; St. 1977, ch. 679; St.
1977, ch. 921, § 2; St. 1984, ch. 50; St. 1986, ch. 337; St. 1989, ch. 534.
195. See MASS . GEN. LAWS ch. 272, § 77 (2000). Language used to describe
animal abuse includes: “[w]hoever overdrives, overrides, overworks.”
196. See id.
197. See id.
198. Id.
199. Id.
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MASSACHUSETTS ANTI-CRUELTY STATUTE
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the animal,200 and requires a knowing and willful intent for authorizing or
permitting an animal to be subject to unnecessary torture, suffering or
cruelty of any kind.201 The statute provides for a fine of not more than
$1,000 or by imprisonment of not more than one year or both. 202 In
addition, the animal may be removed from the offender’s custody. 203
The Massachusetts statute to protect animals, far from being one of the
most protective in the nation, offers little protection to animals, does not
adequately punish offenders and is not regularly enforced. The statute
could, and should, be substantially amended to address the issues raised in
Part I of this Note, specifically (1) in recognition of our obligation to
protect helpless creatures from malicious acts by humans, and (2) as a tool
to identify either at risk adolescents or adults who, by their acts show
signs of possible future violence against humans.
A. Analysis of Terms
The term “whoever,” as used in the statute is without qualification. It
signifies that anyone, regardless of that person’s relationship with the
animal is subject to the sanction.
The words “overdrive,” “overloads” and “overworks” refer to a time
when animals functioned as beasts of burden for mankind.204 The act of
overdriving, overloading or overworking is dependent upon the type of
animal and whether the animal is being subjected to an unreasonable
burden or an unreasonable task in light of the animal’s strength and
abilities.205
“Torture” and “torment” are synonymous terms as defined by Webster’s
Dictionary,206 although torture may encompass a more physical type of
pain while torment may refer to a psychological element of the pain. 207 To
prevent any ambiguity, a legislature may choose to define the terms within
the statute. A number of states have taken that approach. In general,
those states define torture or torment as acts of commission, acts of
See id.
See MASS. GEN. LAWS ch. 272, § 77.
See id.
See id. The statute does not indicate whether the removal of the animal
is of a permanent nature. While other states have used language of permanency, a
constitutional issue arises with regard to one’s ability to own property.
204. See FAVRE & LORING , supra note 4, at 124.
205. See id.
206. NEW ILLUSTRATED WEBSTER ’ S DICTIONARY 1019-20 (1st ed. 1992)
[hereinafter W EBSTER’ S]. Torment is defined as “intense bodily pain or mental
anguish; agony; torture.” Id. at 1019. Torture is defined as “infliction of or
subjection to extreme physical pain.” Id. at 1020.
207. See FAVRE & LORING , supra note 4, at 124.
200.
201.
202.
203.
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omission and acts of neglect that inflict pain, suffering or death on an
animal either unnecessarily or without justification.208
The important concept behind the words “torture” or “torment” is that
pain or suffering may be inflicted on an animal if it can be deemed
necessary or if there is adequate justification such that an act would not
violate the statute. In People ex rel. Freel v. Downs,209 torture was
defined by the court as an infliction of bodily pain that is both
unjustifiable and unnecessary. 210 The court noted that the legislature’s
choice of words clearly indicates an intent that the infliction of physical
pain and suffering, even to the point of causing death, does not invoke the
sanctions under the statute unless that pain or suffering is unnecessary,
unjustifiable and willful.211
The next clause prohibits the infliction of unnecessary cruelty or
unnecessarily failing to provide the animal with proper food, drink,
shelter, a sanitary environment or protection from the weather. Webster’s
defines unnecessary as simply “not required; not necessary.” 212 It is more
enlightening, however, to understand the term “necessary” and then apply
its negative connotation. Webster’s defines “necessary” as “[a]bsolutely
needed to accomplish a desired result; essential; requisite.” 213
The Massachusetts courts have interpreted this section of the statute on
very few occasions. In Commonwealth v. Curry,214 the defendant was
charged with unnecessarily failing to provide a horse in his custody with
proper food, drink and protection from the weather. 215 Defendant left his
horse, harnessed to a carriage, in the woods for a twenty-four hour period
where it remained without food, water or shelter. 216 The court found the
act violated the statute and that it need not be shown that the animal
actually suffered as a result of the defendant’s actions. 217
In
Commonwealth v. Magoon,218 the court stated that guilt is not dependent
upon whether the accused thought he was unnecessarily cruel, but rather,
208. See ARK. C ODE ANN. § 5-62-110 (Michie 2001); FLA. S TAT. § 828.02
(2000); HAW. REV. STAT. § 711-1100 (2000); N.D. CENT. CODE § 36-21.1-01
(1999); S.D. C ODIFIED LAWS § 40-1-2.2 (Michie 2000); N.Y. AGRIC. & MKTS. LAW
§ 350 (McKinney 2000); TENN. CODE A NN. § 39-14-201 (2000); WYO. S TAT. ANN.
§ 11-29-1101 (Michie 2000).
209. 136 N.Y.S. 440 (1911).
210. See id. at 444.
211. See id.
212. WEBSTER ’ S, supra note 206, at 1059.
213. Id. at 652.
214. 23 N.E. 212 (Mass. 1890).
215. See id. at 213.
216. See id.
217. See id.
218. 51 N.E. 1082 (Mass. 1898).
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MASSACHUSETTS ANTI-CRUELTY STATUTE
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whether he intentionally and knowingly acted to inflict unnecessary
pain.219
The District of Columbia has a similarly worded animal cruelty
statute220 and the courts in that jurisdiction have more recently interpreted
the word “unnecessary.”221 A convicted defendant under that statute
argued that the word “unnecessarily” rendered the statute void for
vagueness.222 But the court disagreed, stating that practical difficulties in
drafting statutes often require using flexible standards “‘to ensure the
effective application of legislative policy to changing circumstances.’” 223
The court defined the word in its instructions to the jury: “[t]he word[ ]
unnecessarily . . . [is] to be understood in [its] ordinary sense and mean
that a person, although he could provide food, drink or shelter as required
to sustain the animal[] . . . failed to do so.” 224
The Massachusetts statute also prohibits the cruel beating, mutilation or
killing of an animal. The term “beat” has been defined as the “infliction
of blows” and the term “cruel” as a “willful and cruel temper of mind
[when] the act was done.”225 But, in defining “beating,” the courts have
labored to draw the line between an act that violates the statute and an act
used to discipline an animal. The D.C. Court of Appeals has stated that
animal protection statutes are not intended to restrain individuals from
using the infliction of pain for training or disciplining an animal. 226
See id. at 1083.
See D.C. CODE ANN. § 22-801 (1996 & Supp. 2001).
See Tuck v. United States, 467 A.2d 727 (D.C. 1983).
See id. at 731.
Id. at 732 (quoting People v. Allen, 657 P.2d 447, 449-50 (Colo. 1983));
see also Cross v. State, 646 S.W.2d 514, 515-16 (Tex. Ct. App. 1982) (stating that
the words “unreasonably” and “necessary,” although not defined in the animal
cruelty statute, are to be understood according to their textual context and the
words’ common meanings); Wilkerson v. State, 401 So. 2d 1110, 1112 (Fla. 1981)
(upholding the constitutionality of the state animal cruelty statute opining that the
word “unnecessarily” is not vague when taking into account the entire statute and
the legislative purpose. “The fact that specific acts . . . are not enumerated, an
impossible task at best, does not render the statutory standard void for vagueness.
Criminal laws are not ‘vague’ simply because the conduct prohibited is described
in general language.”); People v. Speegle, 62 Cal. Rptr. 2d 384, 388 (1997)
(recognizing that it is beyond the abilities of the legislature to define every act that
may be perpetrated against an animal by “callously indifferent” humans and
interpreting the state animal cruelty statute as constitutional, even though it might
be somewhat vague or general in its language, as long as the terms give a
reasonably objective standard and fair notice).
224. See Tuck, 467 A.2d at 732.
225. Commonwealth v. McClellan, 101 Mass. 34, 35 (1869).
226. See Regalado v. United States, 572 A.2d 416, 417, 420-21 (D.C. 1990)
(holding that the defendant’s actions constituted animal cruelty (i.e., suspending a
puppy by a leash and continually hitting the puppy hard, and where the puppy
219.
220.
221.
222.
223.
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However, there is a distinction between willfully beating an animal with
an evil intent and a cruel disposition 227 and applying bona fide training
methods.228
Mutilation and killing should be viewed as more serious offenses.
Mutilate is defined in Webster’s as “to deprive (a person, animal, etc.) of a
limb or essential body part; maim.” 229 In defining mutilation, courts
generally relied on common law construction as well as the word’s plain
meaning.230 The Massachusetts statute incorporates the act of mutilation
into the general language of the statute subjecting the act to the same type
of sanctions as other forms of abuse. In other jurisdictions, the act of
mutilation constitutes a more serious offense and as such is punishable to
a greater extent.231 If the purpose of the statute is to target animal abusers
who are potential violent abusers against humans, the act of mutilation
which is a clear indication of anti-social behavior232 should be punished as
a separate offense under the animal cruelty statute. An act of this nature
should include a mandatory counseling requirement as well as a term of
imprisonment. A juvenile offender should, in addition, be placed under
court supervision for a period of time.
upon examination showed muscle lesions, a bloody and bruised eye and several
areas where the skin had been scraped off)).
227. See id. at 420.
228. See State v. Fowler, 205 S.E.2d 749 (N.C. Ct. App. 1974) (ordering new
trial so that defendant can present evidence to the jury to validate an obedience
training technique that included submerging and then withdrawing a dog’s head
into a water filled hole for a fifteen to twenty minute period to break the dog of the
habit of digging holes in the backyard); see also State v. Avery, 44 N.H. 392, 396
(1862).
229. WEBSTER ’ S, supra note 206, at 645.
230. See State v. Stout, 958 S.W.2d 32, 34 (Mo. Ct. App. 1997) (interpreting
mutilation to include healed wounds where a dog’s skin was completely scraped of
all four paws, exposing the nerve endings and resulting in an impairment of the
dog’s completeness and function for several weeks); see also State v. Roberts, 8
S.W.3d 124, 125 (Mo. Ct. App. 1999) (interpreting the statutory term of mutilation
by applying the word’s plain and ordinary meaning and including within the
meaning internal as well as external injuries where defendant beat his dog,
breaking its ribs so that they no longer functioned to protect the dog’s chest
organs, but also cut and destroyed the surrounding muscles and arteries).
231. See LA. R EV. S TAT. ANN. § 14:102.1(B)(1)-(4) (West 2000)
(intentionally mutilating an animal punishable as an aggravated misdemeanor
subject to a maximum fine of $25,000 and up to ten years imprisonment); MD.
ANN. CODE of 1957, art. 27, § 59(b) (2000) (intentionally mutilating an animal
punishable as a misdemeanor subject to a maximum fine of $5,000 and three years
imprisonment); W IS. STAT. § 951.18(1) (2001) (intentionally violating the animal
cruelty statute where the result is the mutilation of the animal pun ishable as a
felony offense).
232. See Kellert & Felthous, supra note 21, at 1120.
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The term “animal” is not defined within the statute, however, in light of
a recent court case which found that goldfish were protected animals
under the statute,233 the term should be given broad application.
The clear meaning of the word “killing” is easily understood, but the
statute requires a “cruel” killing. A Rhode Island court defined the
meaning of the term in that state’s statute 234 when a defendant argued that
the meaning was unclear and therefore the statute should be declared void
for vagueness.235 The court, however, decided that the act of the
defendant, killing a cat by placing it in a microwave oven and turning on
the oven, constitutes a cruel killing within the parameters of the statute. 236
B. Enforcing the Statute
The Massachusetts statute is enforceable by special state police officers
appointed by a state police colonel.237 These officers serve without pay
from the state coffers, but they have all the powers of police officers to
arrest and detain anyone violating the anti-cruelty statute.238 Even though
enforcement of the anti-cruelty statute is delegated to special state police
officers, regular police officers, as well as sheriffs, deputy sheriffs and
constables are mandated by statute to prosecute all cases of animal abuse
“which come to their notice.”239
The Massachusetts statute can clearly be improved. Within the fifty
states, Massachusetts rates among the last in protecting animals from
abuse or neglect based on types of punishment imposed and
comprehensiveness of the statute. In addition, the statute is rarely
enforced. Between the years of 1975 and 1996 the Massachusetts Society
for the Prevention of Cruelty to Animals investigated up to 80,000
complaints of animal abuse.240 Of those complaints, only 268 were
prosecuted, and of those prosecuted, the abusers were typically young
males.241 Most offenders were ordered to pay a fine (which averaged
233. See Knox v. Massachusetts Soc’y for the Prevention of Cruelty to Animals, 425 N.E.2d 393, 396 (Mass. 1984) (determining that a goldfish is an animal
within the terms of the statute and the award of the animal as a prize in a contest is
cruelty as defined by the statute).
234. See R.I. GEN. LAWS § 4-1-2 (2000).
235. See State v. Tweedie, 444 A.2d 855, 857 (R.I. 1976).
236. See id.
237. See MASS . GEN. LAWS ch. 22C, § 57 (2000).
238. See id.
239. Id. ch. 272, § 84.
240. See Arluke, supra note 22 (citing cases that were not prosecuted because
the perpetrator was unknown or because there was a lack of sufficient evidence; of
cases that went to trial, only 44% of defendants were found guilty).
241. See id.
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$132) or to pay restitution (which averaged $99). 242 Defendants rarely
served jail time, and when they did, it was generally of short duration, the
average term being four and a half months.243 Counseling or community
service (which is not mandated by the statute) was rarely ordered. 244
The reasoning behind redrafting the statute is not only to offer greater
protection to animals, but also to identify at-risk youths and adults. As
previously stated in Part I, youths who abuse animals are more likely to
commit violent acts in the future. A statute that mandates a counseling
program for youthful offenders would serve to benefit society in a much
broader sense than just protecting animals from abuse.
C. Proposals for a New Statute
The Massachusetts statute could be substantially improved in form as
well as substance. The current statute consists of two paragraphs. The
first paragraph is essentially one sentence separated by clauses covering
the entire law - types of abuse prohibited, types of acts prohibited, and
penalties imposed. The second paragraph concerns the forfeiture of the
abused animal by the defendant.
What follows are proposed suggestions for additions to the current
statute:
1. Definitions
Massachusetts should add a definition section to its revised anti-cruelty
statute. Many states incorporate a section defining terms used in the
statute either within the statute itself or in a separate statute. 245 Defining
the terms used in the anti-cruelty statute would make fully clear the intent
of the legislature and assist the prosecutor in bringing forward a case.
Also, by clearly defining the terms used in the statute, the state can avoid
litigating its constitutionality, thereby spending less time and expense
interpreting the terms as applied to particular defendants, and lending an
element of consistency to the process.
See id.
See id.
See id.
See, e.g., COLO. REV. S TAT. ANN. § 18-9-201 (West 2001); D.C. C ODE
ANN. § 22-813 (1996) (constituting one of the more minimalist statutes, defining
only the terms “animal” and “owner”); DEL. C ODE ANN. tit. 11, § 1325 (2000); LA.
REV. STAT. ANN. § 102 (West 2000); MICH. COMP. LAWS § 750.50 (2000); VT.
STAT. ANN. tit. 13, § 351 (2000); VA. CODE ANN. § 3.1-796.66 (Michie 2000) (defining 52 statutory terms, making it the most comprehensive statute of this type in
the nation).
242.
243.
244.
245.
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MASSACHUSETTS ANTI-CRUELTY STATUTE
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2. Positive Duty of Care by the Animal Owner
While most states make animal neglect 246 and animal abandonment247 a
punishable offense, a few impose a greater duty of care on animal owners.
These types of statutes define minimum requirements that an owner must
provide for his animals.248 They include providing the animal with
adequate food, water, sanitary shelter, as well as proper veterinary care. 249
The State of Minnesota even has a statute providing building
specifications for dog houses!250 The State of Maine has three different
statutes that define a duty of care and provide penalties for violation of
each type of offense.251
246. See, e.g., DEL. C ODE ANN. tit. 11, § 1325 (2000) (defining neglect within
the animal cruelty statute as causing pain or suffering to an animal, including
abandonment of a domesticated animal by its owner, or allowing an animal to live
in unsanitary conditions); MO . REV. STAT. § 578.009 (2000); IOWA CODE § 717B.3
(2000) (defining neglect as failing to supply the animal with food or water while
confined; failing to provide a dog or cat with shelter; torturing, beating or killing
an animal by means that cause unjustified pain or suffering).
247. See, e.g., FLA. S TAT. § 828.13 (2000) (abandoning animal by owner such
that the animal suffers injury or malnutrition or abandoning in a public street or
road without providing for care, sustenance and protection of the animal is
punishable as a misdemeanor); MD. ANN. C ODE of 1957, art. 27 § 60 (2000)
(imposing strict liability for abandoning an animal on street, road, highway or
public place); S.C. CODE ANN. § 47-1-70 (Law. Co-op 2000) (imposing strict
liability for abandoning an animal without providing it with the “necessities of
life”); R.I. GEN. LAWS § 4-1-26 (2000) (abandoning the animal “without providing
for the care of that animal”).
248. See, e.g., ILL. C OMP . S TAT. 510 70/3 (West 2000) (requiring that an
owner provide for animals “sufficient quantity of good quality, wholesome food
and water; . . . adequate shelter and protection from the weather; . . . veterinary
care when needed to prevent suffering; . . . and humane care and treatment”); W IS.
STAT. §§ 951.13, 951.14 (2001) (requiring animal owner or responsible party to
provide sufficient food to maintain good health, potable water on a daily basis, and
adequate shelter for the animal).
249. See VA. C ODE ANN. § 3.1-796.68 (Michie 2000).
250. See MINN. S TAT. § 343.40 (2000) (including building specifications that
define the types of material to be used to make the structure moisture -proof and
windproof; providing for a windbreak entrance during the months of November
through March; listing types of acceptable bedding).
251. See ME. R EV. S TAT. ANN. tit. 17, § 1035 (West Supp. 2000) (requiring
the provision of necessary sustenance including food and water by person owning
or confining animals); M E. R EV. STAT. ANN. tit. 17, § 1036 (requiring owner or
responsible person to provide the animal with “necessary medical attention when
the animal is . . . suffering from illness, injury, disease, excessive parasitism”);
ME. REV. STAT. ANN. tit. 17, § 1037 (requiring certain indoor and outdoor
standards for sheltering animals including ambient temperature requirements,
inclement weather shelter and minimum standards of sanitation); M ICH. C OMP.
LAWS § 750.50b(4) (2000) (counseling as a condition of probation); see also MISS.
CODE A NN. §§ 97-41-7, 97-41-9 (2000) (providing for misdemeanor sanction for
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By incorporating within the Massachusetts statute a duty of care
provision, the legislature would not only send a message to animal owners
about the responsibilities they bear in owning an animal, but it would also
begin recognizing the rights of animals to a minimal level of care.
3. Alternative Sentencing for Adults and Juvenile Offenders
Some states when sentencing offenders of the anti-cruelty statute, take
the opportunity to treat the offender’s underlying psychological problems
that may be at the root of the abusive behavior. 252 Colorado law allows a
judge to order anger management treatment for any juvenile who violates
the anti-cruelty statute.253 The statute first requires an evaluation, to be
paid for by the parents of the offender.254 If the evaluation recommends
treatment, the juvenile “shall be ordered” to complete an anger
management treatment program.255 Likewise, adult offenders of the
animal cruelty statute may be ordered by the court to attend an anger
management treatment program.256 For a second offense, under the anticruelty statute, adults as well as juveniles, are required to undergo anger
management treatment.257 The New Mexico law allows a court to order
anyone convicted under the animal cruelty statute to participate in an
animal cruelty prevention program or animal cruelty educational
program.258 When an offender is found guilty of extreme cruelty to
animals, defined as a malicious act against an animal, the court may order
psychological counseling.259 A child found guilty under the statute must
undergo an assessment to determine if psychological counseling or
treatment should be ordered.260 The Louisiana anti-cruelty statute
failing to provide food and water to animal in custody).
252. See, e.g., C AL. P ENAL C ODE § 597(g) (West 2001) (requiring counseling
for defendant granted probation under the animal cruelty statute); ME. REV. S TAT.
ANN. tit. 17 § 1031 (West Supp. 2000); VA. C ODE ANN. § 3.1-796.122(G) (Michie
2000) (providing for anger management treatment or psychological program to be
ordered at judge’s discretion); W. VA. CODE § 61-9-19(g) (2000) (mandating that
a second-time offender may not be granted probation without undergoing
psychiatric evaluation); MD. ANN. CODE of 1957, art. 27 § 59(b)(2) (2000)
(counseling may be ordered by the court for violation of the anti-cruelty statute).
253. See C OLO. R EV. S TAT. ANN. § 19-2-918.5 (West 2001). Compare NEV.
REV. STAT. § 62.2295 (1999) (mandating court ordered counseling or
psychological treatment for juvenile offender).
254. See C OLO. R EV. S TAT. ANN. § 19-2-918.5(s) (West 2001).
255. See id.
256. See id. §§ 18-9-202(II), 18-9-202(III).
257. See id. § 18-9-202(B)(V).
258. See N.M. S TAT. ANN. § 30-18-1(F) (Michie 2000).
259. See id.
260. See id. § 30-18-1(G).
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MASSACHUSETTS ANTI-CRUELTY STATUTE
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requires, in addition to any fines and imprisonment ordered, that the
offender perform five eight-hour days of court-approved community
service.261 The New Jersey statute requires that the term of community
service (up to thirty days) be performed at the New Jersey Society for
Prevention of Cruelty to Animals.262
Massachusetts should incorporate this type of treatment/counseling
option into its statute. Using the New Mexico model, the Massachusetts
statute should establish degrees of cruelty where counseling/treatment
may be ordered by a judge as he sees fit, but in cases of extreme cruelty
where mutilation has been proven, the counseling/treatment should be
mandated. In either case, counseling/treatment should be mandated for all
juvenile offenders regardless of the degree of cruelty in recognition that
such acts by children frequently signify future anti-social behavior.263
4. Mandatory Forfeiture of Animals by Offender
Upon conviction under an animal cruelty statute, twenty-one
jurisdictions provide for varying types of forfeiture procedures to prevent
the offender from owning or possessing an animal.264 Courts may be
authorized to permanently remove the abused animal that is the subject of
the prosecution and to remove other animals in the custody of the
defendant that are either presently, or may in the future be subject to such
abuse.265 In addition, a court may be authorized to use its discretion in
prohibiting the offender from owning animals for a reasonable period of
time in the future.266 This prohibition may be either during the period of
See LA. REV. STAT. ANN. § 14:102.1(2)(b) (West 2000).
See N.J. STAT. ANN. § 4:22-17(c)(1) (West 2000).
See Kellert & Felthouse, supra note 21 and accompanying text.
See CAL. PENAL CODE § 597(f)(1) (West 2001); DEL. CODE ANN. tit. 11,
§ 1325(c) (2000); FLA. STAT . § 828.073 (2000); HAW. REV. STAT. § 711-1110.5
(2000); KAN. STAT. ANN. § 21-4311(e) (2000); LA. REV. STAT. ANN. § 14:102.2(D)
(West 2000); ME. REV. STAT. ANN. tit. 17, § 1031(3) (West Supp. 2000); MD.
ANN. CODE of 1957, art. 27 § 67 (2000); MICH. COMP. LAWS §§ 750.50(3),
750.50(6) (2000); MINN. STAT. § 343.21 Subd.10 (2000); MISS. C ODE ANN. § 9741-2 (2000); MO. REV. STAT. § 578.021 (2000); MONT . CODE ANN. § 45-8211(2)(b) (2000); NEV. REV. STAT. § 574.100(4) (1999); N.H. REV. STAT. ANN. §
644:8(IV) (2000); N.C. GEN. STAT. § 14-363.2 (2000); PA. CONS. STAT. ANN. §
5511(m) (West 2000); VT. STAT. ANN. tit. 13, § 353(b)(1) (2000); W. VA. CODE §
61-8-19(c) (2000); W IS. S TAT . §§ 951.18(4)(b), 951.18(4)(c) (2001); WYO. S TAT.
ANN. § 6-3-203(h) (Michie 2000).
265. See FLA. S TAT. § 828.073(4)(c)(4) (2000); HAW. R EV. S TAT. § 7111110.5 (2000); MISS. CODE A NN. §§ 97-41-2(5), 97-41-2(6) (2000).
266. See ME. R EV. S TAT. ANN. tit. 17, § 1031(3) (West Supp. 2000); M ICH.
COMP. LAWS § 750.50(6) (2000); MINN. STAT. § 343.21 Subd.10 (2000); M ISS.
CODE ANN. § 97-41-2(5) (2000); VT. STAT. ANN. tit. 13, § 353(b)(3) (2000); W IS.
STAT. § 951.18(4)(c) (2001); WYO. STAT. ANN. § 6-3-203(j)(ii) (Michie 2000).
261.
262.
263.
264.
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probation if so ordered,267 for the period of the sentence imposed,268 or as
further mandated by statute - up to five years in Wisconsin269 and up to
fifteen years for a felony conviction in Delaware. 270
Although the Massachusetts statute provides for forfeiture of the abused
animal upon conviction of the offender, 271 there is no provision for
authorities to remove the animal after investigation and before
prosecution.272 The statute should be amended to include the following
provisions: (1) the right to remove an animal suspected of being abused
upon a finding of probable cause,273 (2) mandatory forfeiture of the animal
upon conviction,274 (3) permanent forfeiture of the right to own animals
after a second conviction,275 and (4) a requirement that the offender shall
pay all costs incurred by the authorities in custody of the animal during
and after the investigation.276
5. Separate Offense for Each Abused Animal
The Massachusetts statute does not clearly provide for charging an
offender with multiple violations of the statute when the offender abuses
more than one animal.277 The statute should be amended to provide that
267. See W. VA. C ODE § 61-8-19(h) (2000); MINN. S TAT. § 343.21 Subd.10(1)
(2000).
See MONT. CODE A NN. § 45-8-211(3)(b) (2000).
See W IS. STAT. § 951.18(4)(c) (2001).
See DEL. CODE ANN. tit. 11, §§ 1325(c), 1325(d) (2000).
See MASS. GEN. LAWS ch. 272, § 77 (2000).
See, e.g., FLA. STAT. § 828.073 (2000).
See, e.g., MISS. CODE ANN. § 97-41-2(1) (2000).
See, e.g., CAL. P ENAL CODE § 597(f)(1) (West 2001); DEL. C ODE ANN.
tit. 11, § 1325(c) (2000) (prohibiting ownership or possession of any animal for
five years after a misdemeanor conviction); DEL. C ODE A NN. tit. 11, § 1325(d)
(prohibiting ownership or possession of any animal for fifteen years after a felony
conviction); KAN. STAT. ANN. § 21-4311(e) (2000); MO. REV. STAT. § 578.021
(2000) (prohibiting return of animal subjected to abuse to the convicted offender);
W. VA. CODE § 61-8-19(c) (2000) (mandating forfeiture, upon conviction, of animal to the humane society or county pound).
275. See, e.g., ME. R EV. S TAT. A NN. tit. 17, § 1031(3) (West Supp. 2000);
MICH. COMP. LAWS § 750.50(6) (2000); MINN. STAT. § 343.21 Subd.10 (2000).
276. See C AL. P ENAL C ODE § 597(f)(a) (West 2001); FLA. S TAT. §
828.073(4)(c)(3) (2000); KAN. STAT. ANN. § 21-4311(c) (2000); LA. REV. STAT.
ANN. § 14:102.2(D) (West 2000); ME. REV. STAT. ANN. tit. 17, § 1031(3) (West
Supp. 2000); MISS. CODE A NN. § 97-41-2(4) (2000); MONT. CODE ANN. § 45-8211(3)(a) (2000); NEV. REV. STAT. § 574.055(7) (1999); N.H. REV. STAT. ANN. §
644:8(IV)(a) (2000); 18 PA. CONS. STAT. ANN. § 5511(l) (West 2000); VT. STAT.
ANN. tit. 13, § 353(b)(2) (2000); W. VA. CODE § 61-8-19(c) (2000); W IS. STAT. §
951.18(4)(a)(2) (2001); WYO. STAT. ANN. § 6-3-203(j)(i) (Michie 2000).
277. See MASS . GEN. LAWS ch. 272, § 77 (2000).
268.
269.
270.
271.
272.
273.
274.
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each act of animal abuse is punishable as a separate offense. 278 In this
way, the offender who commits multiple acts of abuse will be more
severely punished than the one-time offender.
6. Distribution of Fines
One of the reasons advanced for anti-cruelty statutes not being
effectively enforced is limited funds. When resources are scarce, the
investigation and prosecution of animal abuse cases is significantly
reduced. Some argue that “people” issues should come first. However,
the investigation and prosecution of animal abuse cases could be funded
by allocating fines levied against animal abusers to support a dedicated
prosecutor in the district attorney’s office. At present, no state takes this
approach, and only five states require that monies collected from fines be
distributed to the state society for prevention of cruelty to animals or to
the humane society.279
The Massachusetts statute makes no provision for the allocation of fines
collected from offenders convicted of animal abuse.280 As previously
noted, fines collected average far less than the maximum fine of one
thousand dollars allowed under the statute. 281 Monies collected from fines
should be allocated to the district attorney’s office and earmarked for
funding prosecution of animal abuse cases. This would promote the
implementation of the statute on a more regular basis and support the
intent of the legislature to condemn the act of animal cruelty.
7. Mandatory Investigation and Enforcement of the Statute
Massachusetts does require law enforcement to prosecute all violations
of the anti-cruelty statute that “come to their notice.” 282 Two jurisdictions,
278. See, e.g., WYO. S TAT. ANN. § 6-3-203(k) (Michie 2000) (stating that
each animal abused by the defendant may be the basis for a separate charge for the
purposes of “prosecution, conviction, sentencing and penalties” under the anti cruelty statute).
279. See D.C. C ODE ANN. § 22-806 (1996 & Supp. 2001) (distributing fines
collected to the Washington Humane Society as a result of prosecution by a
member of that Society to that Society); N.J. STAT. ANN. § 4:22-55 (West 2000)
(distributing all fines and penalties to society for prevention of cruelty to animals);
OHIO REV. CODE ANN. § 959.13(c) (West 2000) (distributing all fines to society
for prevention of cruelty to animals); R.I. GEN. LAWS § 4-1-20 (2000) (distributing
all fines to society for prevention of cruelty to animals); S.C. CODE ANN. § 47-1160 (Law. Co-op. 2000) (distributing one half of fine to nonprofit animal humane
organization).
280. See Act of Feb. 9, 1951, ch. 34, § 1, 1951 Mass. Acts 29, 29 (deleting
the allocation of fines to the Massachusetts Society for the Prevention of Cruelty
to Animals).
281. See MASS . GEN. LAWS ch. 272, § 77 (2000).
282. Id. ch. 272, § 84; see also FLA. S TAT. § 828.17 (2000) (requiring law
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Michigan283 and West Virginia,284 not only require enforcement of the
anti-cruelty law, but also provide for penalties if the public officer charged
with that duty fails to act. Amending the Massachusetts statute to provide
for mandatory enforcement of the law, and subjecting law enforcement to
penalties for failure to arrest, investigate, or prosecute may be a necessary
measure to establish this crime as one that is not just “on the books” but
one that the legislature wants enforced.
D. Enlisting Public Support to Amend the Animal Cruelty Statute
Raising public support for passage of a new law must be done through
educating the public about the dangers of ignoring children who abuse
animals. Another method to enlist public support is by publicizing the
most heinous forms of abuse. For instance, in 1992, an act of violence
occurred against an animal at a petting zoo that aroused public
consciousness of animal cruelty in the State of Washington. 285 The
incident and its subsequent publicity was instrumental in the passage of a
tough anti-cruelty statute in that state.286
Kelsey Creek Farm is a petting zoo located in Bellevue, Washington.
Among the animals housed at the zoo was a twenty-one-year-old muchbeloved donkey named Pasado. During the evening of April 15th, three
assailants entered the petting zoo. They found Pasado in a stall in the barn
and beat him with large branches. Then the assailants took the donkey
outside to a pasture, tied him to a tree and beat him again with metal
farming tools. The donkey died when he strangled himself while trying to
escape from the beatings. The assailants, including a minor, were found
and brought to trial. They were found guilty of burglary. 287 The public
outrage that resulted from this crime was instrumental in passing
enforcement to arrest without warrant anyone violating the anti-cruelty statute);
D.C. CODE A NN. § 22-806 (1996 & Supp. 2001) (requiring law enforcement to
prosecute violations of anti-cruelty statute that come to “their notice or
knowledge”).
283. See M ICH. C OMP . LAWS § 750.52 (2000) (making it a misdemeanor
violation for failure of law enforcement officer to arrest and prosecute violators of
the anti-cruelty act).
284. See W. VA. C ODE § 7-10-1 (2000) (mandating removal of the deputy
sheriff charged with enforcement of the anti-cruelty statute for a willful failure “to
investigate any complaint”).
285. Kay Kusumoto, Donkey’s Death Blamed on Vandals, S EATTLE TIMES ,
Apr. 17, 1992, at A1 (reporting that a group of people beat a donkey to death).
286. WASH. R EV. C ODE § 16.52.205(1) (2000).
287. See Washington v. Gans, 886 P.2d 578, 582-83 (Wash. Ct. App. 1994)
(upholding burglary conviction based on finding that Pasado was “goods” within
the meaning of the burglary statute and the fenced area where Pasado was kept and
used to protect Pasado constituted a building for purposes of the statute).
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legislation.288 Pressure was brought to bear by the general public and state
legislators were receptive to the passage of an amended version of the
anti-cruelty law presently on the books.289 The law became known as the
“Pasado Law” and makes it a class C felony to intentionally inflict pain,
cause physical injury, kill an animal with undue suffering, or force a
minor to inflict unnecessary pain, injury or death upon an animal. 290
Similarly, two unusual cases in Oregon highlighted extreme cases of
animal cruelty and the difficulty of bringing enforcement against these
individuals. In the first case, a woman named Vickie Kittles, when finally
discovered by authorities, was found keeping 115 dogs on a school bus. 291
They had been kept in the bus for three weeks without ever being let
outside. The investigating animal control officer discovered the dogs,
when a neighbor called animal control when she became aware of a dog in
an epileptic state and in need of medical assistance. Vicki Kittles was
arrested and charged with animal neglect in the first degree and animal
neglect in the second degree,292 i.e., failing to provide adequate medical
care or food for the animals.
Vickie Kittles is an animal collector, a person who pathologically
collects animals in huge numbers. It is a psychological disorder. When
news of the mistreated animals reached the public, there was general
outrage.293 Sixteen of the dogs suffered from heartworm, a parasitic
infestation, that if left untreated results in death. 294 Fortunately, the
animals were treated, and most were saved and eventually placed with
loving families in the state.295 Vicki Kittles was prosecuted and, after a
lengthy trial in which she represented herself, 296 was found guilty. As a
288. See Steve Ann Chambers, Animal Cruelty Legislation: The Pasado Law
and Its Legacy, 2 ANIMAL L. 193 (1996).
289. See id. at 194; see also 1994 Wash. Legis. Serv. ch. 261, § 1 (West).
The purpose and intent of the proposed amendment as stated by the legislature is
to recognize “a need to modernize the law on animal cruelty to more appropriately
address the nature of the offense . . . . It is the intent of this act to require the
enforcement of chapter 16.52 by persons who are accountable to elected officials
at the local and state level.” Id.
290. See WASH. R EV. C ODE § 16.52.205 (2000).
291. See Joshua Marquis, The Kittles Case and Its Aftermath, 2 ANIMAL L.
197 (1996).
292. See OR. R EV. S TAT. § 167.325 (1999) (defining second-degree animal
neglect as “intentionally, knowingly, recklessly or with criminal negligence
fail[ing] to provide minimum care for an animal in such person’s custody or
control”); OR. REV. STAT. § 167.330 (1999) (same requisites as second-degree
animal neglect with the additional requirements that “failure to provide c are
results in serious physical injury or death to the animal”).
293. See Marquis, supra note 291, at 198.
294. See id. at 197-98.
295. See id. at 198.
296. See id. The trial took five weeks and Vicki Kittles was held in contempt
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result of this case and the public sentiment it generated, the Oregon
Legislature passed a felony cruelty law that became (at the time) the
toughest anti-cruelty statute in the nation. The law, known as the Kittles
Bill, made animal cruelty a felony where it had once been a
misdemeanor.297 (One of the benefits to a felony cruelty statute is that a
record is created and offenders can be tracked from state to state.).298
The second Oregon case that directly resulted in the passage of
legislation, involved a convicted murderer who was released from prison
after serving only six years of a life sentence. 299 He had trained his pit
bull dog to attack and kill the neighbors’ cats.300 He was prosecuted,
found guilty and sentenced to the maximum sentence for such an offense
at that time - six months in prison.301 Additionally, the judge ordered that
the pit bull dog be forfeited.302 The Court of Appeals of Oregon reversed
the sentence citing lack of authority for depriving someone of his
property.303 As a result of this case, the Oregon Legislature amended its
animal cruelty statute to include acts of commission. 304 The Bill also
authorized law enforcement, as well as Humane Society officers, to seize
animals in emergency situations.305
V. CONCLUSION
The Massachusetts anti-cruelty statute, if revised, would serve a dual
purpose to the citizens of the Commonwealth. It would offer better, more
comprehensive protection of animals and give the state an opportunity to
locate and rehabilitate at-risk youths who, by abusing animals,
demonstrate a propensity for violent behavior. The statute should clearly
state and define both the types of animals protected and the types of
seventeen times and sentenced to seventy-one additional days in jail by the judge.
297. See H.B. 3377, 68th Legis., Reg. Sess., amending OR. R EV. S TAT. §
167.332 (1999).
298. See Frasch et al., supra note 17, at 75.
299. See Marquis, supra note 291, at 199-200 (construing State v. Griffin,
684 P.2d 32 (Or. Ct. App. 1984)).
300. See Marquis, supra note 291 at 199.
301. See OR. R EV. S TAT. § 167.850 (1999).
302. See Griffin, 684 P.2d at 33; see also Marquis, supra note 291, at 199.
303. See Griffin, 684 P.2d at 33-34; see also Marquis, supra note 291, at 199.
304. See Marquis, supra note 291, at 200 (citing OR. R EV. S TAT. § 167.322
(1999)).
305. See id. (citing OR. R EV. S TAT. § 167.350 (1999)). The statute now
provides for forfeiture of the abused animal by a defendant convicted under §
167.315 to 167.330, and 167.340 Oregon’s anti-cruelty statute, and to repay the
costs incurred by an agency or person caring for the animal prior to the judgment.
The court may further order that defendant’s rights in the animal be given over to a
person or agency that is willing to accept and care for the animal. See OR. REV.
STAT. § 167.350 (1999).
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behaviors that are prohibited. In addition, the statute should provide
adequate notice to animal owners of what duty of care they are obligated
to perform on behalf of those animals. Most importantly, however, our
statute should include mandatory treatment and a reporting mechanism for
all offenders. Within this mandate, special attention should be given to
youthful offenders. The state should seize this opportunity to attempt
rehabilitation.
Such early recognition of anti-social behavior and
intervention may result in the prevention of future violence.
The Massachusetts Legislature has the opportunity to make the state’s
animal cruelty statute one of the most progressive in the nation. By
incorporating some of the proposals suggested in this Note, the state can
be instrumental in promoting a protective environment for all animals, and
at the same time, make inroads into short-circuiting the current trend of
youthful violence.
Paula J. Frasso