Recognizing Animals as Crime Victims

December 12, 2020Lu Shegay

Introduction

In any criminal law system, independent of the country’s legal system, victims are one of the most important parties in the criminal case. One tends to see victims as those persons who suffered from any actions or omission of the perpetrator, and victims are present in the court hearing and play a significant role because they can testify and assist other parties of the case, including the judge, identify some undiscovered details. However, the application of the same rules and practices to animals in the role of victims in the crimes committed against them does not seem possible because they cannot do the exact same things as humans do.


Animals nowadays face threats mostly from anthropogenic activities, but most of the actions or omissions are committed with the means of cruel treatment. Companion animals are being neglected and abused by their owners or even by strangers; animals in laboratories are being mistreated and are suffering from unnecessary pain; farmed animals are kept in tiny enclosures with insufficient space, air, light, and generally in unacceptable and detrimental for animals conditions; wild animals around the world are facing issues with poaching, yet some species are kept in captivity and used in entertainment; lots of species of aquatic animals are being abused through some practices, such as bycatch, recreational fishing, overfishing, shark finning, marine mammals in entertainment, etc.


Anti-cruelty statutes, however, usually apply only to companion animals, and many of the animal welfare acts do not cover farmed animals, birds, and/or aquatic animals. For instance, the Animal Welfare Act (AWA) of the United States provides the definition of the animal saying that it excludes “birds, rats of the genus Rattus, and mice of the genus Mus, bred for use in research,” “horses not used for research purposes,” and “other farm animals, such as, but not limited to livestock or poultry, used or intended for use as food or fiber, or livestock or poultry used or intended for use for improving animal nutrition, breeding, management, or production efficiency, or for improving the quality of food or fiber.”


Definition of “crime victim”

The definition of “crime victim” generally includes persons, individuals, estates, government agencies, corporations, family members, guardians, and legal representatives. The most widespread definition as an example can be taken from Alabama Code, which states that a crime victim is “a person against whom the criminal offense has been committed, or if the person is killed or incapacitated, the spouse, sibling, parent, child, or guardian of the person, except if the person is in custody for an offense or is the accused.”


In the United States, Delaware is one of the states that provides one of the most thorough definitions of a crime victim, including the person, organization, partnership, business, corporation, agency, or governmental entity identified as the victim of a crime in a police report, a criminal complaint or warrant, an indictment or information, or other charging instruments. The Code of Delaware also includes the definition of a victim “a parent, guardian or custodian of a victim who is unable to meaningfully understand or participate in the legal process due to physical, psychological or mental impairment.” From the language of the Delaware legislation, it can be argued that animals’ owners can be qualified as those who can participate in the case as guardians or custodians of the animals in the role of victims because they are not able to understand or participate in the process by themselves.


In Nevada, for instance, both the state’s Social Services and Welfare Department were recognized as victims within the meaning of the definition of “crime victim.” (See Roe v. State of Nevada) Similarly, in California, a government agency was considered a victim despite the fact that the agency did not fit in the definition of a victim because it was neither a natural person nor a resident of California. (See People v. Crow) The definition of the crime victim varies from state to state with their internal legislation and is not limited to human beings. There have already been precedents in the United States involving non-human entities as crime victims.


See State v. Nix; State v. Hess; State v. Crow


In the absence of federal law establishing that animals can be recognized as victims in the crimes committed against them and due to the lack of definition in different statutes, the issue of whether animals can be considered victims is still remaining nowadays. Some courts from the cases mentioned above used the ordinary meaning of the word “victim” and referred to dictionaries to identify the plain meaning of the word. But another problem regarding elevating the status of animals is the categories of animals that can be recognized as victims. It seems much easier to apply this rule to domestic animals or pets because they have their owners, but it becomes more challenging when it comes to such categories of animals as farmed animals, wild animals, or aquatic animals.


Challenges to recognize animals as crime victims

Farmed animals

One may have observed that domestic violence is tightly connected with animal neglect, but not only pets or companion animals are facing challenges and abuse from their owners, so are farmed animals, and they are one of the categories of animals that are mostly abused being kept in factory farms for commercial purposes and in slaughterhouses. Factory farms are not open to the public, and one can only guess what is actually happening inside and in what conditions and how animals are treated. One of the sources of law that protects the owners of factory farms is the ag-gag law, otherwise called anti-whistleblower law, which prohibits filming and photography of the activity of factory farms inside. There is a lot of critique and speculations that ag-gag laws violate the First Amendment to the Constitution of the United States and hide animal abuse from the public. However, there are still ag-gag laws in different jurisdictions that receive both support and opposition from the public and the government. In the United States, animal protection organizations are striving to challenge ag-gag laws on the state level in different jurisdictions.


In a few cases in the United States, lying and misrepresentation to obtain records of the facility were challenged, where it was decided that the provisions on misrepresentation of the Idaho statute violated the First Amendment and were overly broad explaining that the imposed restriction on speech must be necessary where the compelling government interests are present, and there should be a “direct causal link between the restriction imposed and the injury to be prevented.” And even if there is a compelling interest, the prohibition to access the property by misrepresentation is not necessary to protect property rights. Also, it was held that the provisions from the statute, namely making audio and video recordings through entering an agricultural production facility that is not open to the public violated the First Amendment because this particular part of the statute is content-based and explicitly prohibited the recording of agricultural operations and nothing else, therefore it is unconstitutional.


The problem with farmed animals is not quite that they are killed for certain purposes, rather the issue is in how they are treated before being killed. There is a reason why the owners of agricultural facilities are not open to the public and are always trying to protect their property from recording the activity. If in the case with domestic animals, their owners can represent animals as victims in the court hearing, with farmed animals it might be challenging, but they still can be represented by interested animal organizations or those who are concerned or conducted any undercover investigations. The conduct inside the agricultural facilities can certainly be defined as cruelty to animals taking into account that a lot of animals, especially those who are kept in tiny places in the crowds like in the CAFOs, is subject to practices that are done without any anesthesia or painkillers, which undoubtedly cause pain and suffering to animals.


A great example of that is accepted farm animal husbandry practices, such as tail docking, debeaking, forced molting, gestation crates, and others. Mostly, anti-cruelty statutes do not cover poultry and usually exempts such practices. (See Ark. Code Ann. §§ 5-62-102; 5-62-105; S.C. Code Ann. § 16-27-60; Or. Rev. Stat. §§ 167.315(2), 167.320(2), § 167.332(3)). It is crucial to pay attention to the treatment of farmed animals because they cannot express their natural behavior and are abused during the conduct that is done towards them.


Aquatic animals/wild animals

The same could be said about the species of aquatic animals. One used to consider only fish as species of aquatic animals or marine mammals usually receiving the most attention from the public. However, the list of aquatic animals consists of a dozen species, and it has been proven by scientists that fish can feel pain and fear, as well as other conscious animals. Lots of animals are receiving threats and abuse from humans and anthropogenic activities, including species of aquatic animals. Marine mammals are one of the well-known species of aquatic animals receiving the most public concern among other species since they are kept in captivity, scientific research, and etc. Animals in captivity are usually not able to act naturally - it applies to marine mammals or wild animals used in entertainment, such as zoos, circuses, animals in laboratories, and farmed animals in CAFOs. As a result, in most cases they experience extreme stress, so do marine mammals, especially when they are separated from their offspring or after breeding.


Sharks might be an example of aquatic animals receiving the least consideration from the public and protection under the law because they are counted among those animals having so-called “negative charisma,” and they have been considered those animals who people should be afraid of. Approximately 100 million sharks around the world are killed annually for different purposes, and the tens of millions of them are caught for food consumption, which is one of the most expensive seafood products in the world. Due to their intrinsic value and importance in the marine environment to support ocean health, sharks are still subject to threats and abuse from anthropogenic activities. Apart from widespread activities, such as fishing, sharks are usually caught for the purpose of shark finning - where fins are removed from sharks and then animals are released back to the ocean, and as a result, sharks either die from suffocation or are eaten by other predators - and shark fin soup.


It was necessary to address the discussion on how farmed animals, wild animals, and aquatic animals are treated within their areas of maintenance, captivity, or habitat to demonstrate the abuse they receive on a regular basis from humans. Therefore, if animals are abused, they should automatically be considered victims. But with the current legislation, not only in the United States, it is difficult to sue because many of those animals do not have owners, and with farmed animals raised for commercial purposes, it is not a crime to keep them.


As for aquatic animals, there are laws in some countries, as well as international sources of law that prohibits the particular conduct or imposes obligations on countries to exercise an acceptable practice that would not destroy the habitat and will be aimed at the establishment of a sustainable marine environment and use, but the abuse is being continued.


With wild animals in zoos, neglect is easier to notice since those places are open to the public, but circuses are open only with their shows, but it is unknown whether animals are treated well outside the show. It is arguable that they are, especially given that they are forced to exercise certain actions and are located in an unnatural area.

"Relaxed lioness" by Tambako the Jaguar is licensed under CC BY-ND 2.0

European approach with regard to animal welfare

To elevate the status of animals and recognize them as victims of a crime, it is necessary to address the concept of legal personhood for animals because as was mentioned above, the majority of statutes consider victims persons. The European Union has one of the strongest legal protections of animals around the world. The Council of Europe issued lots of sources related directly to animal welfare, such as the Revised Convention for the Protection of Animals kept for Farming Purposes, the Revised Convention for the Protection of Animals during International Transport, the Revised Convention for the Protection of Animals for Slaughter, the Convention on the Conservation of European Wildlife and Natural Habitats, the Convention for the Protection of Vertebrate Animals used for Experimental and other Scientific Purposes, and the Convention for the Protection of Pet Animals. These Conventions are important in the question of elevating the status of animals because they establish one of the most important principles, which is “five freedoms.”


Webster’s third dictionary defines a legal person as “a body of persons or an entity (as a corporation) considered as having many of the rights and responsibilities of a natural person and especially the capacity to sue and be sued.” Different dictionaries may provide different wording or language, but the main point of the term remains the same - it is a person having rights and obligations under the law. Animals cannot possess the same rights and obligations equal to those possessed by humans, but the fundamental rights of animals should be given to them.


The Terrestrial Animal Health Code established by the World Health Organization of Animal Health defined an animal being in a good state of welfare as being healthy, comfortable, well-nourished, safe, capable of expressing innate behavior, and not suffering from pain, fear, and distress. The concept of “five freedoms” includes (1) freedom from hunger, thirst, and malnutrition; (2) freedom from fear and distress; (3) freedom from physical and thermal discomfort; (4) freedom from pain, injury, and disease; and (5) freedom to express normal patterns of behavior. However, those potential rights that can be given to animals are not enforced, independent of whether it is the category of farmed animals, wild animals, or aquatic animals.


Proposals

Animals are property, that is the indisputable fact, but what differs them from other types of property is that they are living beings and are capable of experiencing the same feelings and emotions as humans do. Animals are capable of feeling basic emotions, such as suffering, pain, happiness, fear. That is true that humans are the only living beings on Earth who have an advanced language to communicate. Animals have their way of communication too, and although, as was mentioned above, one of the things that victims do in the criminal process is to give testimonies, animals are not able to possess the same rights and obligations. Recognizing animals as victims might be a very complicated process because of the language of the statutes, existing exemptions, and precedents. The more challenging thing about this topic is different categories of animals because while there have already been some cases of recognizing animals as victims at least for the purposes of the merger, there are still some categories of animals that are not covered by the statutes. It is certainly impossible to amend all the laws at once and it would undoubtedly take a lot of time to do so, even if the legislature took some steps.


The recognition of animals as legal persons would play a significant role in the criminal process and investigations related to crimes against all categories of animals. A great example of this solution is the ongoing case Justice v. Vercher, where the animal law organization sued the defendant on behalf of the horse who was neglected by his owner. The concept of “five freedoms” is a good starting point to elevate the status of animals by giving them basic rights. If those rights are granted to animals, it would be feasible to recognize animals as legal persons, thus it would not matter what is written in the statute because all of them consider victims a person, and animals would be recognized as such. However, granting legal rights, even the fundamental rights according to the concept of “five freedoms” may take a long period of time given the process of enacting and enforcing such a rule of law. It is necessary to note that despite most statutes defining the term “victim” as a person, it is at the court’s discretion to interpret this word.


The possibility to sue either owners of some animals if they have one, or the owners of the property where animals are kept, namely zoos, legal entities exercising circuses, agricultural operation facilities, and both individuals and countries catching and abusing aquatic animals might be another possible solution to make animals participants of the criminal process. This method, however, might be weaker than the previous one because of various reasons. It would be extremely hard to bring a cause of action in the issues with abuse inside the factory farms and those concerning aquatic animals. With factory farms, the main challenge is the economic impact because it is impossible to prevent everyone from consuming farmed animals and their derivatives, and this kind of business will always be in demand. Aquatic animals also play an important role in the market because of the consumption as well as the trade, given that seafood is considered one of the most expensive types. However, it is still possible to sue zoos for keeping animals in unacceptable conditions and in small cages and their feeling of distress due to unnatural habitat, and that leads one to the first proposed solution, where the key point is that animals should have a right to freedom together with other rights listed above.


Both proposed solutions require certain amendments in the law, but the reason for why these changes should be done is to establish long-lasting and sustainable welfare for animals. Despite animals being recognized as sentient beings and their difference from other types of property, there are still some loopholes in the legislation in any jurisdiction around the world. And the recognition of animals as crime victims would become the first and most important step for the just and better well-being of animals.

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