Exotic Pet Rhetoric

I should probably blog more on current animal events of the day but I seem to dwell in a limbic space many hours behind the news cycle and constantly butt up against the law of diminishing relevance.  For example, this whole chimp- mauling thing…  Since we all know the gruesome details, I’ll confine my comments to the recently introduced Captive Primate Safety Act, which just passed the House.  The bill seeks to ban interstate commerce in primates for the exotic pet trade.

The legislation itself is straightforward enough and currently awaits action in the Senate.  Perhaps more noteworthy than the bill’s passage was the rhetoric of those who opposed it.  For example, Rob Bishop of Utah and Paul Broun of Georgia felt that protecting humans from “monkey bites” should be solely the job of the states.  Rep. Bishop perseverated about the Congress having far more important matters to tackle (i.e the stimulus bill, the war(s), etc.).  Apparently included in that crucial national business were two bills Mr. Bishop had sponsored that deal with minor land transfers.  Hat tip to Wayne Pacelle’s blog for that particular skinny.

I confess that Michael Markarian’s comments on the issue also have left me non-plussed.  He seems solely concerned with the (very real and disturbing) human tragedy of the attack and the potential for more such incidents.  He does not mention the exploitation of the animals and the fact that, even when such animals attack, they are simply acting like what they are — wild animals.  It is an ongoing sadness that when wild animals get captured and indentured and then act like what they are, their destruction and denouncement inevitably soon follows.  Perhaps during a lull amidst Rep. Bishop’s pressing national business, someone in Congress could speak about that.

dnc

Crime vs. Terrorism: The Case Against AETA

As one commenter recently noted, 4 animal rights activists were recently arrested and charged with suspicion of terrorism for their threats and harassment of University of California researchers (full story here).  I have not seen enough details to take a substantive position on the case but I do have something to say about the the Animal Enterprise Terrorism Act (AETA), the law under which the defendants were charged.  AETA is, in my view, one of the most dangerous laws this nation has ever enacted.  Here’s why:

The following scenario could happen tomorrow: A sixty-eight year old grandmother from Long Island gets tired of reading about the awful conditions in factory farms and determines to see for herself.  She receives permission from Big Food, Inc. to visit a company facility in New Jersey.  Big Food insists, however, that she take no pictures while inside and she agrees.   During the tour, the woman becomes sickened by the conditions under which the animals are housed and surreptitiously snaps a few pictures on her cell phone.  She then circulates the photos to an animal rights group for posting on the group’s website along with a plea that something be done to save the animals.

Did our Long Island grandmother break the law?  Absolutely.  She could be prosecuted for trespass, harassment and other violations, in addition to facing civil liability.  But thanks to AETA, she has become more than a mere lawbreaker.  She is now a terrorist.

AETA became law in November, 2006.  It was enacted ostensibly because industry groups feared violent attacks by animal rights “extremists.”  Yet, AETA’s predecessor, the Animal Enterprise Protection Act (“AEPA”), already contained harsh penalties for violent acts against animal enterprises.  AETA incorporates those penalties but also goes much further.

Under AETA, non-violent “interference” with an “animal enterprise,” which causes no economic damage and endangers no one, can land a person in prison for a year.  If economic damage results, the penalties increase dramatically.  For example, if our fictional grandmother’s behavior inspired acts of civil disobedience (e.g., forming human chains that prevented trucks from transporting animals in or out of the facility) that caused Big Food to lose money, she could face ten years.  Yet, if her deeds had been directed at a non “animal enterprise,” she would likely incur a fine and/or community service.  At best, this harsh, arbitrary and selective prosecution amounts to bad public policy.  At worst, it violates the Constitution.

To pass constitutional muster, a law cannot be vague or overbroad or impose cruel or unusual punishment.  It must also have a rational basis for existing.  AETA fails in all three categories.

First, it is both vague and overbroad.  As the law is written, virtually anything could be an “animal enterprise” and the supposedly criminal behavior of “interfering with” such enterprises is very poorly defined.  Despite good faith efforts to comply with the law, one could still be violating AETA without knowing or meaning to do so.

Second, AETA imposes disproportionate sentences far in excess of those imposed for similar behavior under other laws.  Indeed, its penalties dwarf those for crimes most of us would consider far more severe.  For example, it is hard to understand why someone protesting slaughterhouse conditions could land in jail for ten years while sex offenders usually do less than five.

Finally, AETA (re)criminalizes conduct that neither causes nor threatens bodily harm, economic damage, or even non-violent physical obstruction, and which is already illegal under existing state and federal law.  Such redundancy lacks any rational basis.  It seems more concerned with stifling dissent than protecting the public from terrorism.

Terrorism usually refers to the intimidation (terrorizing) of a civilian population through mass destruction, assassination or kidnapping.  A terrorist is someone who commits such acts.  Classifying standard-issue crimes – including civil disobedience – as terrorism conflates crime (the breach of a legal duty), and terrorism (the use or threat of violence to intimidate or cause panic, especially as a means of affecting political conduct).  All terrorists are criminals but not all criminals are terrorists.  Merging the two erodes normative protections that our founders painstakingly created to safeguard us from tyranny.

Under AETA, well-meaning citizens peacefully trying to bring about social change become the domestic equivalent of enemy combatants.  The danger here is not just that people like our grandmother from Long Island will become stigmatized and get imprisoned for long periods, though that by itself would be problem enough.  It is also that over time, the term terrorism will lose its meaning.

Terrorism should mean something.  We should fear it, do everything we can to suppress it, and punish it when it occurs.  When our government labels something a terrorist threat, the national response should be one of unity and singularity of purpose.

Yet, some activities classified as terrorism under AETA enjoy widespread sympathy and could also be constitutionally protected.  For example, organized protests against puppy mills or the treatment of veal calves could lead to prosecution under the Act.  Calling such protests terrorism has a deeply pernicious effect.  When the nature of the so-called terrorism becomes plain, we could find ourselves empathizing with the perpetrators.  That means we would become – in the eyes of our government – terrorist sympathizers.

So what has AETA wrought?  It has produced a legal regime that stifles free expression and labels dissent a terrorist act.  As a result, it has created a rogue nation of terrorists and terrorist sympathizers and opened a new front of the War on Terror.

We have met the new enemy.  And once again, it is us.

dnc

Turkey Plant Workers Indicted for Cruelty

The following press release is posted here:

Indictments Are First Felony Charges for Abuse of Factory-Farmed Birds

For Immediate Release:
February 9, 2009

Contact:
Dan Paden 757-622-7382

Lewisburg, W.Va. — A Greenbrier County grand jury has issued 19 indictments for cruelty to animals against three former employees of Aviagen Turkeys, Inc. The workers were among those documented abusing and killing turkeys during a PETA undercover investigation conducted last fall at Aviagen’s West Virginia factory farms. Eleven of the indictments are felony charges, the first time in U.S. history–and overdue, according to animal welfare workers–that factory farm employees have faced felony cruelty-to-animals charges for abusing birds. Each felony charge is punishable by one to five years in jail and a fine of $1,000 to $5,000. The eight misdemeanor indictments issued are punishable by up to six months in jail, a fine of $300 to $2,000, or both.

The indictments follow an investigation conducted by the West Virginia State Police into acts documented by PETA. The indicted men–Edward Eric Gwinn, Walter Lee “Pee Wee” Hambrick, and Scott Alvin White–were investigated for acts such as stomping on turkeys’ heads, twisting turkeys’ necks in failed attempts to kill them, and repeatedly banging a turkey’s head against metal scaffolding. Gwinn was investigated for his mimicked rape–caught on video–of a turkey hen whom he had pinned against the floor. Additional charges against the men are anticipated to be filed soon in neighboring Monroe County for similar acts committed in that jurisdiction.

PETA recently learned from a whistleblower that Aviagen still has some abusive workers on its payroll. PETA has notified Virginia and federal authorities of suspected drug-related crimes and violations of labor regulations.

“This decisive action by the West Virginia State Police sends a strong message to those who abuse animals,” says PETA President Ingrid E. Newkirk. “If anyone at home wants to guarantee that they won’t support such cruelty, they should leave turkey off the grocery list and try some vegetarian recipes.”

For more information, please visit PETA.org.

-Suzanne McMillan

Update: WA State lawsuit over factory-farmed animals exempted from anti-cruelty legislation

In reference to my February 13th post regarding the recent filing of a lawsuit challenging WA state’s policies relating to the welfare of factory-farmed animals, the complaint can be found here, along with a press release:

http://narn.org/090206_release_anticruelty_suit.pdf

-Suzanne McMillan

Arkansas Makes (Some) Animal Cruelty a Felony

On February 4, Arkansas made animal cruelty a felony offense in some cases (depending on which species was injured/killed, and whether this was a first-time offense). This leaves only four states without any felony animal cruelty provisions: Idaho, Mississippi, South Dakota and North Dakota. However, all but North Dakota are currently considering introducing felony provisions.

Apparently, the Arkansas statute contains exceptions for standard animal husbandry, among other practices, but I have not been able to locate the Act’s final language. I will post any updates that I come across.

You can read about the new law here, and you can see the wording of Arkansas’s old statute here.

-Suzanne McMillan

WA State animal cruelty statute exemptions

Over 20 states have animal welfare statutes containing express exemptions for standard factory-farming procedures. Many of these exemptions were added in recent years, reflecting a growing trend. This blatant loophole is the source of frustration for those seeking legal protection from physical abuse for farmed animals.

Washington State is one of the states with such exemptions in its anti-animal cruelty statute. Consequently, the Northwest Animal Rights Network (NARN) has filed a lawsuit against Washington State and King County for violating the constitution with such exemptions. A press release issued here states that “these exemptions are so poorly defined and vague as to invite tremendous acts of animal exploitation to go unpunished. They also invite such a complete delegation of legislative power as to allow the foxes to guard the proverbial henhouse. The exemptions result in unjustifiable and inconsistent protections for animals by permitting some of the most undisputedly heinous and cruel injuries to be inflicted daily on large numbers.”

I have not yet seen a greater elaboration of the legal arguments involved, but stay tuned…

-Suzanne McMillan

The Congressional Canine Awards

From the Truth is Stranger than Fiction Desk: Last night were the Congressional Canine Awards. . .

At the awards ceremony,  House Majority Leader Steny Hoyer eulogized his late dog, Charlotte, declaring: “God invented dogs for us, to give us the kind of uncompromising love that human beings need, and we in turn give them the same kind of love.”  Michael Markarian, President of the Humane Society Legislative Fund, finds this heartwarming and posted the video of Hoyer’s remarks on his blog.

Even while acknowledging Mr. Hoyer’s laudable devotion to Charlotte, I find all of this disturbing.  I can’t decide what bothers me more: that Congressman Hoyer believes dogs were created for human use and benefit or that Michael Markarian finds such sentiments touching.

dnc

Taxing Veterinary Care

Interesting story on NPR (read and listen here) about Governor Schwarzenegger’s proposed plan to levy a 9% tax on veterinary care as part of an overall plan to close California’s $41 billion budget gap.  The proposal has raised concern that it will price veterinary care out of the reach of many Californians.  As a result, many animals will face abandonment or euthanization.  H.D. Palmer, of California’s Department of Finance noted that veterinary care is not being singled out; the state also plans to tax  auto and appliance repair, golf fees, sporting events and amusement parks such as Disneyland and Knots Berry Farm.

There is no denying that California’s budget crisis is real and that the state faces some hard choices.  Nonetheless, I look forward to the day when medical care for sentient, feeling creatures is not a line item comparable to greens fees or trips to Disneyland.

dnc

NY State Bar Association Student Animal Law Writing Competition

I just received notice of this student writing competition sponsored by the New York State Bar Association (check out their Committee on Animals and the Law).  It’s notable both because it’s a great opportunity for law students and also because 10 years ago, a student writing competition on animal law sponsored by a bar association likely never would have happened.

dnc

ANNOUNCEMENT OF THE
2009 NEW YORK STATE BAR ASSOCIATION’S
SPECIAL COMMITTEE ON ANIMALS AND THE LAW
STUDENT WRITING COMPETITION
The Special Committee on Animals and the Law of the New York
State Bar Association is very pleased to announce the Second
Annual Student Writing Competition. The deadline for submission
is June 15, 2009.
The Special Committee on Animals and the Law was established to
provide information resources for the New York State Bar
Association’s members and the public about non-human, animal
related humane issues, which arise from and have an effect upon
our legal system. This competition seeks to foster legal scholarship
among law students in the area of animals and the law. This
competition provides law students with an incentive and
opportunity to learn more about this area of law.
Law students (which include J.D., L.L.M., Ph.D., and S.J.D.
candidates) are invited to submit to the Special Committee on
Animals and the Law an article concerning any area of animal law.
All submissions will be reviewed by a panel of attorneys and other
professionals practicing or otherwise involved in animal law. The
winner will be chosen in accordance with the attached rules. The
first place winner will receive $1,000 and a certificate of
achievement. The second place winner will receive $500 and a
certificate of achievement.

Uncoupling Circuses and Cruelty

If you follow the news and care about such things, then you know that the long-awaited circus trial has begun.  In brief, Ringling Bros. circus must defend against charges that its use and (mis)treatment of exotic animals in its care violates the Endangered Species Act.  Plaintiffs include the ASPCA, the Animal Welfare Institute, and the Fund for Animals.  Among the acts alleged to violate the law include using of bullhooks to “train” elephants to perform stunts that have absolutely nothing to do with their typical behavior, chaining them continuously when they are not performing, depriving them of natural habitat and adequate exercise, and more.  Some of the activities that the circus argues constitute necessary training or discipline seem just plain vicious. A verdict against the circus would be a huge legal victory, with significant changes in the way animals are used in travelling entertainment shows almost certain to follow.  Read more about the trial and accompanying issues here, here, here and lots of other places as well.

I have not blogged extensively about the trial in part because it is so well-covered elsewhere.  However, the issue of circus animal treatment has been around for a long time and it would be nice if the media’s gaze could expand to include some of the anti-cruelty efforts going on at the local and grass-roots levels.  For example, last week, I met with the Committee to Ban Wild & Exotic Animal Acts – a group comprised of people in the Westchester community lobbying for legislation that would bar businesses using wild and exotic animals in their performances from county facilities.  This group and others like it, both in Westchester and elsewhere, have had some significant legislative successes (including ordinances in the towns of Greenburgh, NY, Stamford CT, and Quincy, MA).

People working at the local level often face hostility and/or indifference from their friends and neighbors, and their work–even when successful–goes unheralded.  That’s too bad.  Like most institutionalized animal abuse, exotic animal acts are market-dependent. Without venues in which to perform, companies devoted to such endeavors cannot long survive.  People like those in the Committee to Ban Wild and Exotic Animal Acts are working to starve the beast of animal exploitation.  Regardless of the trial’s outcome, such groups deserve our attention and support.

—dnc

Update: Check out this article on two of the members of the Committee and their efforts on behalf of the circus animals.

Blogging from the Animal Moot

I blog from Cambridge, MA, where tomorrow the National Animal Law Moot Court Competition begins.  I have the honor of participating as a judge – something I have done for each of the last 5 years.  This year’s competition is sponsored by Lewis & Clark Law School’s Center for Animal Law Studies in collaboration with the Animal Legal Defense Fund (ALDF).  It is hosted (as it has been since its inception) by Harvard Law School’s Student Animal Legal Defense Fund (SALDF).  Law schools from all over the country will participate – a testament to the growing recognition of animal law as a legal discipline as well as to student interest in the field.  For the final round, Judges D. Brooks Smith of the 3^rd Circuit, Susan P. Graber of the 9^th Circuit and Lee H. Rosenthal of the Southern District of Texas will preside.

I’m delighted to report that Pace Law School will field teams in both the moot court and the closing argument competition for the second consecutive year.  Go teams!  My rooting interest aside (and, of course, I will not judge any rounds in which Pace is involved), this competition routinely features some of the best student advocacy it has ever been my privilege to witness.  This year will no doubt produce more of the same.

The moot problem involves the applicability of the federal 28 Hour Law (requiring that no animal be transported for more than 28 hours without food, water or rest) to chickens.  This is a live issue; a number of federal laws, including the Humane Methods of Slaughter Act and the Animal Welfare Act exclude birds from their coverage and the legislative history of the 28 Hour Law offers little clarity on the matter.  Another issue centers on whether the 28 Hour Law preempts state anti-cruelty statutes for animals involved in interstate transport.  It’s an interesting set of issues that require advocates to grapple both with the stark, unlovely reality of the animal transport industry and with the law’s apparent indifference to same.

—dnc

Why is it a Crime to Have Sex with an Animal?

As of 2001, engaging in sex with an animal was considered a crime in 23 states. The legitimacy of criminalizing such conduct is unclear. It could be argued that bestiality is a victimless crime that is made criminal solely because a majority of the population believes that such conduct is immoral. If so, the criminalization of bestiality would run afoul of a foundational principle of liberal political theory – John Stuart Mill’s harm principle. According to the harm principle, the state may only criminalize conduct in order to prevent harm to others.

Are there additional reasons justifying the criminalization of bestiality?

Some animal advocates have suggested that having sex with animals should be prohibited for the same reasons that justify making it a crime to engage in sexual intercourse with a child. Thus, Gary Francione has stated that:

“Even if animals can desire to have sexual contact with humans, that does not mean that they are “consenting” to that contact any more than does a child who can have sexual desires (or who even initiates sexual contact) can be said to consent to sex.”

This argument can be restated as follows:

(1) It is wrong for a person to engage in sexual intercourse with a living being that is incable of consent,

(2) Animals, like children, are incapable of consenting to sexual intercourse,

(3) Therefore, it is wrong to engage in sexual intercourse with an animal.

The problem with this argument is that it’s unclear whether the analogy between animals and children holds in this context. While (some) animals and children are similar in many ways (chimps perform as well as 2 ½ year old toddlers on some learning tests), I’m not sure that their capacity for consenting to sexual intercourse is one of them.

One of the reasons why we criminalize having sex with a minor is because we know that children are frequently traumatized as a result of sexual encounters. We also know that human beings are often unable to understand the physical, emotional and economic consequences of having sex before they reach a certain age. These concerns seem inapplicable in the context of sexually mature animals. If an animal routinely engages in sexual intercourse with members of its same species, why is it necessarily wrong for a human animal to engage in (non-forcible) intercourse with a sexually mature animal of a different species?  It would seem odd to claim in such cases that the sexual act may traumatize the nonhuman animal. It would also seem strange to suggest that it’s wrong to have sex with the nonhuman animal because he is unable to appreciate the physical, emotional and economic consequences of engaging in sexual intercourse. There is no reason to believe that having sex with a human causes more physical and/or emotional pain to an animal than engaging in sexual intercourse with a nonhuman animal.

Francione has also suggested that it’s wrong to engage in sexual intercourse with an animal because “bestiality is a phenomenon that occurs largely within the unnatural relationship of domestication; a domestic animal can no more consent to sex than could a human slave.” I’m not sure that Francione’s analogy between slavery and domestication holds. Many animal advocates believe that having pets is morally acceptable. In any case, Francione’s argument cannot explain why it is a crime to have sex with a non-domesticated animal.

Let me be clear. I’m not advocating for the decriminalization of bestiality. Rather, I wish to spark a debate about the reasons that justify sending a person to jail for more than ten years for having non-forcible sex with an animal.  If we are going to lock someone up for a decade, we ought to at least be able to coherently and persuasively explain why it is legitimate to do so.  

Luis Chiesa