Position Statement on Protection of Animal Cruelty Victims
Protecting the victims of animal cruelty and severe neglect and ensuring that perpetrators of these violent crimes are held accountable are essential to the safety and well-being of our communities. Nevertheless, there are still substantial challenges to the routine, effective enforcement of laws designed to protect animals from cruel treatment. The legal status of animals as “property,” the considerable cost often associated with housing and providing care for victims of cruelty and the lack of sufficient public funding to carry out this work, are among the obstacles faced in communities around the country.
The ASPCA believes that local governments, law enforcement agencies, prosecutors, courts, law makers, shelters, veterinarians, behaviorists, animal industry professionals, and members of the public each play an important role in ensuring that animal victims are removed from danger, receive the care they need to recover and are not held in legal limbo for longer than is necessary before being made available for adoption into a new home.
This position statement outlines the essential laws, policies, resources and practices that we believe should be in place to ensure protection of animal cruelty victims and to make our communities safer, more humane places for us all to live.
Although some courts have begun to evolve in their thinking about the legal status of animals, animals are still considered property under the law in every state. But despite their status as property, animals do enjoy legal protections that do not apply to non-living property. Local, state and federal anti-cruelty laws prohibit causing unjustified pain, suffering, harm, or death to animals, and generally require an animal’s owner to provide adequate food, water and care. While these laws differ by jurisdiction, most make cruelty a crime whether the offense is committed against an animal that has an owner or against an animal that is unowned. In this way, the law sets animals apart from other forms of property in an important respect – by acknowledging that animals, unlike inanimate objects, are living, breathing beings, with the capacity to suffer and to feel pain, regardless of whether they are in fact “owned” by a human being.
Criminal cases involving animal victims are unique in a number of additional ways, most notably in that the victim of the crime is also, at least for a brief period of time, evidence of that crime. Where violence is committed against a human being, the victim receives necessary medical treatment and the records of that treatment, along with the testimony of treating physicians, is typically used (or introduced as) evidence in any resulting criminal prosecution. When the victim is an animal, the legal process looks considerably different. Because animals are property under the law, whether or not they will even be removed from a dangerous situation is less than certain.
An animal can legally be removed from its owner or caretaker via a search warrant if there is probable cause of animal cruelty or neglect, or without a warrant under certain exigent circumstances, including where removal is required to render emergency aid. Once removed, the animal is typically provided necessary care and housed by a law enforcement agency or by a third party, such as a humane society or shelter, while the criminal case proceeds. Sometimes, if the owner of the animal surrenders ownership, or if the court orders forfeiture, the animal may be released sooner and be made available for adoption, transferred to another organization where adoption is more likely or humanely euthanized if deemed necessary due to serious behavioral or medical conditions.
However, in jurisdictions around the country, animals seized in cruelty cases are often held for months or even years while criminal charges are resolved. The rationale for these lengthy hold periods are several. If the animals are still owned by the defendant, they cannot be transferred to new owners unless and until the defendant no longer owns them. And, even when animals have been surrendered by their owners or where legal mechanisms like forfeiture or bonding proceedings have effectively severed ownership rights, animals are still sometimes held up to and including trial due to the belief that they must be retained as “evidence” in the criminal case in the same manner as inanimate physical evidence or contraband such as drugs or weapons. As discussed in detail below, whether this results from a good faith belief by the prosecutor or from demands by the defense, long hold periods in no way preserve a live animal’s evidentiary value and are simply detrimental to the animal’s well-being.
Housing and caring for animals that have been victims of cruelty can also be extremely costly, especially when animals have been seriously harmed, are especially ill, or where there are large numbers of animal victims in a single case. Typically, law enforcement agencies are not adequately resourced to shoulder this cost and often turn to other agencies, such as public or private shelters, to assist them with animal care and housing. The burden on all agencies involved can be substantial, hence the need to hold animals for the shortest time possible is always a priority. Unfit owner, bonding and forfeiture laws are designed to help defray the cost of housing and caring for animal victims of cruelty, to shorten hold times and to expedite the process of rehoming of animals whenever possible. However, because these laws are not always well understood or effectively utilized by prosecutors or by shelters (which as “impounding” organizations are often entitled to pursue these remedies on their own), the expense and expertise involved in seizing, assessing, caring for and housing animal victims of cruelty can represent daunting obstacles and disincentives to routine enforcement of anti-cruelty laws. As a result, animals that should be protected under the law do not always receive the protection they are due. The following sections explore these problems in more detail and provide recommendations and strategies for shortening hold periods and better protecting victims of animal cruelty and neglect.
Lengthy Hold Periods are Unnecessary and Detrimental
The Animal’s Value as “Evidence” Is Extremely Transient
While evidence of the nature, degree and cause of an animal’s injuries is certainly relevant to establishing the elements of an animal cruelty or animal fighting charge, the majority of relevant evidence gleaned directly from the animal can and should be documented very early on – at the time of seizure, upon intake to a shelter or other facility and during initial treatment. Therefore, there is little legal evidentiary necessity for holding animals for extended periods of time. For example, evidence of neglect – when an owner or caretaker fails to take proper care of the animal and the animal suffers harm as a result – is most often identifiable at or close in time to the seizure or surrender of the animal.
Common conditions found in neglected animals such as weight loss, emaciation, dehydration, internal and external parasites, general lack of care (matting, overgrown nails, urine scalding) and untreated conditions (like distemper or parvo) can usually be documented at or shortly after intake. Indeed, it is essential to do so since all of these are conditions that can begin to change as soon as treatment begins. Hence the most pertinent and powerful evidence of neglect is that which is documented either on-scene or as soon as the animal is removed from the harmful environment.
Evidence of more severe neglect – embedded chains, starvation, or advanced dental disease – is likewise best documented immediately, before surgery or other interventions are undertaken to correct the situation. Evidence of mental suffering, such as extreme fear, aberrant aggression, compulsive behavior, severe passivity and withdrawal, should be documented shortly after seizure and then again a week or two later to demonstrate the lingering impact of trauma.
Evidence of intentional cruelty is similar in terms of the necessity to document early on before treatment or healing begins. Blunt and sharp force trauma and gunshot wounds are all discernable upon intake through physical examination, radiographs and histopathology. Poisoning is usually documented immediately based on symptoms and analysis of blood, urine and other fluids.
In dog fighting and cockfighting cases, much of the most crucial evidence likewise needs to be captured at or close to the time of intake in order to document the condition in which the animal was received. In dog fighting cases, evidence of recent injuries, scar patterns and use of drugs such as steroids and stimulants, are all diagnosed upon or shortly after intake through physical exam, radiographs and blood work. DNA testing can be done to link injuries to blood found in the pit or on other paraphernalia connected to the fighting or training activity. Behavioral assessment of fighting dogs is important and typically begins within a week of seizure because animals can quickly adapt to new environmental conditions and change their behavior accordingly. While by no means dispositive, behavior evaluations can confirm if a group of dogs seized in a suspected fighting case exhibits the same type of aggression toward other dogs, in terms of style, intensity and consistency that is commonly displayed by experienced fighting dogs.
In cockfighting cases, telltale physical indicia that birds have been used in fighting – removal of the birds’ combs, wattles and breast feathers – is typically noted at intake. Injuries commonly found in fighting birds are likewise observed at seizure or intake, including eye injuries and puncture wounds. Blood work to determine the presence of drugs such as stimulants can also be performed on birds close to the time of intake.
Even when there is a need to establish length of time of recovery or degree of permanent or lasting disability or traumatization due to the defendant’s actions, the requisite documentation need not occur in a shelter or holding facility and can just as readily be accomplished while the animal is in a foster or permanent adoptive home (as long as the necessary chain of custody and other documentation is complete and up to date).
To ensure that defendants are afforded due process, we recommend that prosecutors provide formal notification to defendants that sets a specific time frame for requesting access to seized animals by their own experts. In some instances, this may require seeking a court order. We also recommend taking and securely storing duplicate samples of any relevant biological samples, e.g., blood or tissue, which can be made available to the defense if requested within a reasonable time frame.
Lengthy Stays in Shelters Can Lead to Behavioral/Psychological Deterioration
Lengthy hold periods in a shelter setting can negatively impact the behavioral and psychological health of animal, thereby reducing his or her chances for adoption. The ASPCA has documented behavioral deterioration in animals seized in cruelty and fighting cases during their time in our temporary holding shelters. This deterioration includes lethargy, self-mutilation, anorexia and the development of repetitive or stereotypic behaviors that occupy much of the animal’s time and energy. Prolonged confinement can also increase frustration and the incidence of aggression toward other animals or to caretakers.
The High Cost of Lengthy Hold Periods May Discourage or Prohibit Localities and Shelters from Getting involved
Housing and caring for victims of animal cruelty is an expensive undertaking, especially when animals are in a seriously compromised medical condition, when there are a large number of them or when the hold period is lengthy. Without some assurance that they will be reimbursed for performing a public function, shelters and humane societies cannot take on this important work. Moreover, shelters must often effect a delicate balance between making space for “cruelty holds” and ensuring that they can still perform other statutory and contractual obligations, such as intake of surrendered animals and housing of strays and animals determined to be dangerous to the public. Additionally, animal shelters are generally designed to provide short-term stays for animals, making it difficult for them to meet the needs of animals held for extended periods of time. In short, a single large-scale cruelty case where animals must be held for several months or longer, can cause extreme hardship to a shelter or humane society- even more so if there are no mechanisms in place to help defray the cost and/or move the animals from legal limbo to “available for adoption” in an expeditious fashion.
Because holding evidence in a criminal case is a government responsibility, shelters should be able to look to their localities to fund (or help fund) the cost of care of seized animals. However, many local governments simply do not have adequate financial resources for cruelty case housing and care expenses. Therefore it is not just shelters and humane societies that may be reluctant to take on the care of cruelty victims, but local law enforcement as well. Without a clear path for absorbing these costs, there is a real danger that cases will not be aggressively pursued. In part to avoid this outcome, the ASPCA routinely assists localities with the care and housing of animal cruelty victims, often setting up temporary shelters where our staff and responders provide medical care, housing, and behavioral enrichment and treatment. While providing these life-saving services is integral to our mission, we recognize that for local communities to be able to effectively combat animal cruelty in a consistent and sustainable way, they must have the knowledge and resources to pursue these cases, with or without assistance.
Laws and Practices Should Minimize Length of Holds
To better ensure that animal victims are rescued from danger and that their abusers are held accountable, the ASPCA believes the following are required:
Enactment and Aggressive Enforcement of Strong Forfeiture/Unfit
Providing an effective and clear legal process that appropriately allocates costs and considers the welfare of animals seized in cruelty cases is essential. Such legal mechanisms may take a number of forms. For example, forfeiture provisions may require proof that a particular law has been violated and, upon such a finding, either permit or require the court to order forfeiture. “Unfit owner” provisions, rather than considering evidence of the underlying cruelty charge, focus on whether the owner or caretaker is “fit” to care for the seized animals and/or other animals in his or her care. This approach typically takes into account evidence of past and present care of animals, veterinary evidence of the injuries or illnesses they have suffered, evidence regarding the prevailing community standard of care for animals, and evidence of past violations by the defendant of cruelty laws or other applicable animal welfare laws. A finding of unfitness can result in court ordered forfeiture of the animals, meaning that legal title passes from the owner to either the government or to a third party such as a humane society or shelter. Some unfit owner laws require forfeiture upon a finding of unfitness; others give the court discretion to issue such an order.
Bonding and security posting provisions typically require proof of a violation of a cruelty statute (also by an articulated burden of proof), and, where that burden is met, the defendant is given the opportunity to post a bond or a security to pay for the cost of caring for the animals while the criminal charges are resolved. Failure to post the bond triggers either permissive or mandatory forfeiture of the animals. If the defendant posts the bond and is later acquitted, he or she is entitled to a refund – and return of the animals. Bonding and security posting provisions represent an attempt to balance the interests of both the animal owner and the agency providing care by preserving the defendant’s ownership rights until judgment is rendered while protecting the agency from accumulating excessive costs of care.
In most states, if the defendant is found guilty after trial or pursuant to a plea agreement and if he or she still owns the animals that are the subject of that conviction, the defendant can be ordered to forfeit the animals as part of the sentence (though this result is far from universal and is not mandated in many jurisdictions).
Restitution is a mechanism by which a person convicted of animal cruelty or animal fighting can be required, as part of his or her sentence, to repay the cost of caring for the animals seized in the case or who were victims of the criminal acts. The sentencing court typically has continuing jurisdiction for the period during which the restitution payment should be made and can invoke additional penalties, including contempt of court, for failure to abide by the restitution order.
Whichever type of law is in place, it should: (1) be crafted to reduce hold times by allowing proceedings to be brought as quickly as possible, giving preference to these cases so that they can be heard and resolved without lengthy delays occasioned by court calendar congestion, (2) provide due process – notice and a right to be heard – to the defendant, (3) authorize both prosecutors and organizations such as shelters that house seized animals to initiate or, at a minimum, be parties to the proceedings, and (4) provide for humane methods of disposition of animals forfeited or surrendered under its provisions, including adoption, transfer to other shelter or rescue groups, and humane euthanasia where necessary due to serious medical or behavioral problems. These laws should not, however, require euthanasia of animals that are adoptable merely because of breed type, because they were seized as part of an animal fighting case, or for any other reason. Nor should these laws require the sale of the animals.
These laws should allow for judgments in absentia when defendants or other interested parties have received adequate notice but have chosen not to respond or attend court proceedings. Appeals from these proceedings should be expedited so that animals are not held for unduly long periods. Forfeiture should be required upon failure to post a bond and upon conviction of the underlying cruelty charges. Restitution at sentencing should be expressly authorized so that shelters, law enforcement and/or local governments can be fully reimbursed for costs associated with the care of animal cruelty victims. “No animal” orders – giving the sentencing judge authority to order the convicted party not to own or have contact with animals for a time the court deems reasonable – should likewise be expressly authorized.
Adequate Funding for Shelters and Humane societies
Shelters and humane societies often have the vital expertise needed to examine and to provide care and housing to victims of cruelty. However, this work is costly and can occupy substantial staff time and kennel space for many months at a time. Shelters and humane societies must be adequately resourced to do this life saving work, whether through contract provisions with the localities they serve or through arrangements made with law enforcement or county government to recompense them for their expenses. As mentioned previously, the ASPCA often steps in to assist local shelters in shouldering this responsibility, but the resources we provide in individual cases are no substitute for the infrastructure and local resources needed to handle these cases effectively on an ongoing basis.
Law Enforcement and Judicial Familiarity with Applicable Law
Police, prosecutors and judges must be fully familiar with the provisions in their jurisdiction that are relevant to the seizure and disposition of animals in cruelty and animal fighting cases. Almost every jurisdiction has in place legal mechanisms that authorize seizure of animals where there is probable cause of cruelty or in emergency circumstances, that permit seeking funds to defray the cost of caring for those animals and/or forfeiture upon failure to pay those costs, and that provide restitution for outstanding costs upon conviction or successful conclusion of a criminal prosecution. Familiarity with these provisions allows for the routine and effective use of the law to ensure that animals are removed from danger, hold times are as short as possible, impounding organizations are compensated, and victims are not returned to their abusers.
Training and educational materials, such as those the ASPCA provides nationally3 are more widely available to law enforcement and the judiciary than ever before. And In many states, training on animal cruelty law and procedure is a mandated component of law enforcement and judicial training. The ASPCA believes that training on applicable cruelty law and procedure should be a requirement for police, prosecutors and judges across the country.
Veterinarians’ Roles in Combating Cruelty
Veterinarians play critical roles in many aspects of animal cruelty cases. They are often the first line of defense for animals in jeopardy in that they may discover evidence of cruelty in their day-to-day work examining patients. Reporting their good faith suspicions to the appropriate authorities, providing expert assistance to law enforcement in cruelty cases and fully documenting evidence of cruelty early on, helps both ensure that victims are removed promptly from danger and that there is no evidentiary need to hold them once ownership rights have transferred to the locality or to a private organization. Most states have laws that either require or permit veterinarians to report suspected animal cruelty to law enforcement and provide them with immunity from liability for doing so. Such laws should be in place in all jurisdictions and should also expressly authorize veterinarians to share treatment records with appropriate authorities when an animal’s well-being or public health or safety are at stake.
Finally, the public should report suspected cruelty to the proper authorities and urge policy makers to support both strong enforcement measures and necessary funding for law enforcement and shelters to carry on this life saving work.
Even strong anti-cruelty laws cannot adequately protect animals unless there is an expeditious resolution of ownership so that victims are not held for unnecessarily long periods during which they may suffer from behavioral deterioration, thereby decreasing the chance for a successful outcome. The evidentiary value of animal victims is extremely transient; the evidence most pertinent to a successful prosecution can and should be obtained at or shortly following seizure. Strong forfeiture, unfit owner “no animal,” and restitution laws should be in place and aggressively pursued so that law enforcement and shelters can take on this important work and whenever possible, quickly move the animals from legal limbo to new adoptive homes. Only then, when such legal measures are in place and effectively utilized and agencies are adequately funded, can we be assured that the law provides the full protection that victims of animal cruelty need and deserve.
 See, e.g., Champagne v. Higgens, 2016 R.I. Super. LEXIS 147 (R.I. Super. Ct. Dec. 16, 2016) (applying a “best for all concerned” standard in custody dispute and concluding that neither “the welfare of the dog or of either party” would be served by transferring possession to the plaintiff); Rasmeur v. Askins, 997 N.Y.S.2d 101 (N.Y. Civ. Ct. 2014) (applying “a best for all concerned” standard in custody dispute and awarding defendant possession of pet shih tzu on grounds that plaintiff had largely “abdicated” care); Travis v. Murray, 42 Misc. 3d 447 (Sup. Ct. N.Y. County 2013) (applying a “best interest for all concerned” standard in divorce proceeding and requiring a hearing for the parties to present evidence as to why pet daschund “has a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other”); Placey v. Placey, 51 So. 2d 374 (Ala. Civ. App. 2010) (affirming trial court’s application of a “best interest of the animal” standard in custody dispute to determine that family dog would be “better cared for” by the defendant).
The standard of proof required differs from jurisdiction to jurisdiction and may entail a relatively low standard such as probable cause or it may require a higher standard, such as a preponderance of evidence or clear and convincing evidence.