Curbing Animal Cruelty
8.11.2020
New York’s animal cruelty laws need updating. They have not kept pace with contemporary animal protection legislation. Our pets are beloved family members yet under New York statutes abused animals are still treated more like property. The evolving view is to treat pets as sentient creatures and provide stiff penalties to protect them from cruelty. New York can learn how to improve its laws by drawing on recent federal legislation and by observing trends in other jurisdictions.
New York Lags Behind Recent Federal Anti-Cruelty Laws
In the age of the internet, animal cruelty has not diminished but actually thrives. “Crush videos” have become commonplace. These are videos in which acts of animal torture, burning or suffocation are filmed for commercial distribution. According to the Animal Welfare Institute, these videos may also depict perverse acts such as “women in stilettos or bare feet stomping on or impaling small, helpless animals.”
To discourage this, Congress enacted the PACT (Preventing Animal Cruelty and Torture) Act, which was signed into law on November 25, 2019, with bipartisan support. The Act amends Section 48 of title 18, United States Code that had criminalized distribution of these “crush videos.” The new law is revolutionary in that it makes not just distribution but the acts of animal cruelty themselves a federal crime. It prohibits all kinds of animal abuse to many varieties of pets. It states in pertinent part:
“It shall be unlawful for any person to purposely engage in animal crushing in or affecting interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States.”[1]
Since PACT applies to harmful acts within the “territorial jurisdiction” of the United States, this makes it a federal animal cruelty statute.
Under the legislation, the term “crushing” is broadly defined to include a host of brutal acts. It covers cruelty to non-mammals as well as to dogs and cats. The PACT Act describes “animal crushing” as follows:
(f) Definitions. –In this section–
`(1) the term `animal crushing’ means actual conduct in
which one or more living non-human mammals, birds, reptiles, or
amphibians is purposely crushed, burned, drowned, suffocated,
impaled, or otherwise subjected to serious bodily injury.[2]
It also provides serious penalties for violation of its provisions. A person who commits acts of animal cruelty in violation of the Act, “shall be fined under this title, imprisoned for not more than seven (7) years, or both.”
While New York often prides itself on being a leader in enlightened legislation, these federal penalties are much stiffer than those of New York’s current animal cruelty statutes.
Federal Pet and Woman’s Safety Act (PAWS ACT 2018)
Animal abuse is perfidious but it is also linked to domestic abuse. During New York’s Animal Advocacy day in June 2018, State Senator Tedisco quoted FBI findings that, “Animal cruelty is a bridge crime.” Those who harm pets often go on to harm people as well.
According to the American Humane Society, a survey of pet-owning families with substantiated child abuse and neglect found that animals were abused in 88% of homes where child physical abuse was present. The Animal Welfare Institute states that multiple studies find that 49% to 71% of battered women report their pets were threatened, harmed, and/or killed by their partners.
In addition to PACT, recent federal legislation has been enacted to take domestic violence into account. The Pet and Women Safety (PAWS) Act was signed into law as part of the 2018 Farm Bill. As a result of PAWS, 18 U.S.C. § 2262 provides penalties for up to five years for violation during interstate travel of state protection orders that cover pets. Thus, the law covers not only violent acts against people but against their pets. It states, in pertinent part:
A person who violates this section shall be fined under this title, imprisoned –
for not more than 5 years . . . . [this includes] any case in which the offense
is committed against a pet, service animal, emotional support animal,
or horse.[3]
The statute’s coverage is broad because 33 states including New York have enacted laws that allow pets to be included in orders of protection. Under New York’s Family Court Act the judge may issue an order of protection directing defendant “to refrain from intentionally injuring or killing, without justification any companion animal the respondent knows to be owned, possessed, leased, kept or held by the petitioner or a minor child residing in the household.”[4]
Anti-Stalking
The PAWS Act also expanded the federal crime of stalking to include threats to the pets of stalking victims. The statute’s protections apply to “a person traveling in interstate commerce [who] engages in conduct that (A) places a person in reasonable fear of the death of, or serious bodily injury to . . . (iv) the pet, service animal, emotional support animal, or horse of that person.”[5]
In addition, PAWS also covers threats by mail or otherwise. The statute prohibits
use of the mail, any interactive computer service. . . . to engage in a course of conduct that —
(A) places that person in reasonable fear of the death of or serious bodily injury to a person, a pet, a service animal, an emotional support animal, or a horse.[6]
Penalties for violation include a fine and up to five years in prison.
Cruelty Against Humans? Intentional Infliction of Emotional Distress
As suggested by domestic abuse cases, there is always a second victim in cases of cruelty to pets- the traumatized pet owner. In the violently popular John Wick films, an assailant kills John Wick’s dog. Of course, the act was not directed at the pet, but done to inflict severe emotional pain on John Wick. Any moviegoer can identify with Wick’s pain and desire for vengeance. Any pet owner would suffer similar emotional distress if their beloved pet was harmed by a sadistic attacker. Unfortunately, New York, like most U.S. jurisdictions, does not recognize a crime, whether civil or criminal, of intentional or reckless infliction of emotional distress when a pet dog or cat is cruelly abused. The Michigan State University Animal Legal and Historical Center[7] indicates that only a few states (i.e., Florida , Kentucky , Idaho , Louisiana and Texas) have allowed monetary compensation for mental anguish in animal abuse cases.
Washington Appellate Court Awards Emotional Distress Damages
Ubi jus ibi remedium: there is no wrong without a remedy. However, you may have to travel to the West Coast to find it.
Seven years after a similar abuse case in New York, a Washington State appellate court reviewed a civil claim in Womack v. Von Rardon.[8]. Three boys took Max, a two-year-old tomcat, from Ms. Womack’s front porch to a nearby school, doused him with gasoline and set him on fire. Max suffered second and third degree burns and had to be euthanized.
The Womack opinion reported that, as punishment for that revolting crime, the juvenile court ordered the boys to pay restitution to an animal rights organization. Dissatisfied, Ms. Womack sued the boys and their parents pro se on behalf of herself and as “special guardian” over the “sentient being,” Max Womack, deceased feline. The trial court awarded Ms. Womack $5,000 in “unliquidated damages” for the value of “Max and Bernadette Womack’s emotional distress.”
Still dissatisfied, Ms. Womack appealed, contesting, inter alia, the sufficiency of the damage award. The appellate court, pointing to the deficiency of the record, upheld the damage award. However, in a landmark opinion, the court concluded, “we hold malicious injury to a pet can support a claim for, and be considered a factor in measuring a person’s emotional distress damages.”[9]
Pets and Chairs: Vive la Différence
In France, pets were once considered property. However, the laws were changed to recognize that cats and dogs are not inanimate objects like chairs, but are living, sentient beings. Oregon’s highest court has also observed that a pet is more than mere property.[10] The issue arose in 2014 when defendant, charged with misdemeanor neglect under Oregon’s cruelty statute, objected to a blood sample taken from her dog. She claimed it was a “warrantless search” of her property. The prosecutor argued that a dog is a sentient being.
Reviewing the facts, the Oregon Supreme Court held the blood draw was not a warrantless search. The opinion concluded that a dog “should not be analyzed as though he were an opaque, inanimate container.”[11]
Sadly, New York has long held that dogs are property,[12] not people. Even the U.S. Supreme Court once famously stated that “Property in dogs is of an imperfect or qualified nature.”[13] Since pets are property, unauthorized possession of another person’s dog is presumptive larceny,[14] rather than dognapping.
Horrific Cases of Cruelty Cry Out for Revision of New York Law
New York’s cruelty statutes have not changed in 20 years. State laws lag sorely behind federal cruelty legislation and behind evolving ideas of animal sentience. The need for change is also driven by horrific instances of cruelty and the inadequacy of current penalties. Change is further compelled by the contrivances courts must craft to serve justice where statutes are archaic or confusing.
Our state’s primary animal cruelty laws consist of both a misdemeanor and a felony statute. The felony law was prompted in 1999 after a highly publicized incident in Schenectady showed the paucity of the existing penalties.
Buster the Cat Burned Alive
In a shocking instance of brutality, 16-year-old Chester doused his neighbor’s 18-month-old tabby, Buster, with kerosene and set the cat on fire. Despite being rushed for emergency treatment, Buster eventually died from the severe burns that were inflicted. However, the penalty for this gruesome act was slight: three years of probation and psychiatric care under New York’s misdemeanor cruelty statute.[15]
In response to public outcry, the New York legislature added a new crime of “aggravated cruelty.” That statute was oddly drafted and remains unchanged. It states, in pertinent part: “A person is guilty of aggravated cruelty to animals when, with no justifiable purpose, he or she intentionally kills or intentionally causes serious physical injury to a companion animal with aggravated cruelty.”[16]
The statutory prohibition applied only to a “companion animal,” which was not defined. Happily, the term has since been extended by the courts beyond dogs and cats to include even fish and reptiles.[17] Under the statute, a person can be convicted of abuse of their own companion animal. However, the maximum sentence is trivial, only two years, as compared to the seven-year sentence possible under the PACT Act. The statute is also strained in its effort to distinguish between misdemeanor cruelty and felony cruelty.
Isn’t “Aggravated Cruelty” Redundant?
“Ordinary” cruelty under Section 353 applies to animals who are “overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed.” The statute also applies to cases of neglect, such as hoarding (having many animals without providing care) and depriving an animal of necessary food and drink. Thus, Section 353 appears to encompass almost every kind of cruel act. What, then, is “aggravated cruelty” under felony Section 353(a)?
The statute defines “aggravated cruelty” as: “conduct which: (i) is intended to cause extreme physical pain; or (ii) is done or carried out in an especially depraved or sadistic manner.”[18] Acts of animal cruelty are inherently sadistic and cause pain, which makes this distinction hard to apply. Absurdly, an act of cruelty could be only a misdemeanor in New York yet subject to more severe federal penalties if it violated the PACT Act.
People v. Jones: Is Killing Two Birds Worse Than Killing One?
Under New York’s dual statutory system, a court must struggle to decide when torturing, mutilating or killing an animal is a felony and when it is “only” a misdemeanor. This can result in rather convoluted reasoning. In People v. Jones,[19] defendant was convicted of misdemeanor cruelty for killing one of his girlfriend’s pet parakeets. However, he was convicted of aggravated cruelty for killing her second parakeet as well. On appeal, defendant argued that the second parakeet’s death, like the first, was also only “ordinary” cruelty. Defendant also claimed the killing was “instantaneous” and so (presumably) not extremely painful.
The appellate court affirmed the conviction for aggravated cruelty. Using rather tortuous logic, the opinion said that the time it took for the parakeet to die was “not dispositive.” It reasoned that, since the parakeet was “crushed flat” between the bars of its cage, the trial court could draw an inference that it suffered “extreme physical pain.”[20] Therefore the lower court decision was correct. Upon defendant’s application, the Court of Appeals denied leave to appeal.[21]
People v. R.M.: Death by Suffocation
Similarly, in People v. R.M[22], a Westchester court also dealt with the issue of aggravated cruelty. There, a young girl suffocated a 15-year-old cat by wrapping it in a towel and sitting on it. The opinion found this was not simple cruelty but aggravated cruelty. To reach this result, the court supposed that the cat must have suffered terrible pain as it struggled to breathe for minutes before dying. This increased the cruelty level of the crime. Perhaps the court also considered the evidence that, after killing the cat, the mentally disordered girl sliced it open and removed its organs.[23] While some animal abusers suffer from mental disorders, this doesn’t necessarily apply to all cases.
People v. Brinkley: The Dog Bit My Thumb Defense
Section 353(a) of the New York law on its face excludes acts of animal cruelty which are “justifiable.” According to New York City Bar Association Guidelines on Animal Cruelty, “justification is defined in Penal Law 34.05” (i.e., authorized by law or necessary as an emergency measure).[24] However, this defies common sense. Can an act of cruelty ever be justifiable?
Still, defendants try to take advantage of this statutory exclusion. In People v. Brinkley,[25] defendant was convicted of aggravated cruelty to his young dog. On appeal, defendant claimed the dog bit his nephew; then, when he tried to discipline the dog, it bit him on the thumb. Defendant argued that he was in a “state of shock” and justified in acting to protect himself and his nephew.
The Third Department quickly disposed of this justification. Evidence showed defendant took the dog out of a closed crate before repeatedly kicking it and slamming it with a hammer. A necropsy found the “hammering” was so ferocious the dog had two collapsed lungs, a macerated liver and all its teeth fractured or missing. Given the strength of a young dog’s teeth, a veterinarian testified that the animal endured a terrible pounding. The court ruled that this vicious attack contradicted any claim of justification.
In fact, Agriculture & Markets Sec. 350 describes cruelty as “every act, omission, or, neglect whereby unjustifiable physical pain, suffering or death is caused or permitted” (emphasis added).
Thus, animal cruelty by definition is unjustifiable.
A 50-Year Prohibition on Dog Ownership
Given the maximum two-year sentence for felony abuse, judges have struggled to make the punishment fit the crime. Thus, the Brinkley judge enhanced defendant’s sentence by prohibiting him from ownership or custody of animals for 50 years. On appeal, this was upheld. The appellate court noted that the law allows an abuser to be prohibited from ownership or custody of animals, “for a period of time which the court deems reasonable.”[26] In light of defendant’s vicious hammering of his pet dog, a 50-year prohibition was reasonable.
People v. Ivanchenko: Abuse Justified Because “Accidental”?
The Second Department recently upheld a conviction of aggravated cruelty in another brutal incident. In People v. Ivanchenko,[27] defendant allegedly beat her daughter’s three-month-old puppy so ferociously she fractured its skull, causing traumatic brain injury. Defendant claimed the puppy’s injuries were “accidental.” However, the trial judge relied on expert testimony which stated that the pup’s injuries could not have been caused by accident.
On appeal, the court rejected defendant’s argument that the expert testimony was not properly admitted. Further, the opinion pointed to evidence that defendant put the dying puppy in a black plastic bag and tossed it out of her car onto the roadway.
People v. Napoli: A Disobedient Lover Is No Excuse for Animal Abuse
Freud said an angry person may “displace” their rage onto an innocent animal. It seems he was right. However, rage at your lover does not excuse animal abuse. In People v. Napoli,[28] defendant demanded that his live-in girlfriend remove her dog from the premises and take it to the pound. Refusing, she declared she was leaving him. Angered by her disobedience, defendant grabbed a shotgun and fired two rounds into the dog, who later died. The appellate court upheld defendant’s conviction for aggravated cruelty.
In re Pastor: Lawyer Cruelly Disbarred
A two-year felony sentence for animal cruelty is slight. However, it can really hurt if you’re an attorney. In In re Pastor,[29] a New York attorney who beat his girlfriend’s dog to death was disbarred after a felony cruelty conviction. He appealed, arguing that an uncharged prior crime of animal abuse was improperly admitted. The same appellate court that disbarred him disagreed and affirmed, noting the callousness of his actions.[30] The Court of Appeals denied leave to appeal.
The moral for New York lawyers: Don’t commit animal cruelty. Or if you do, make sure it’s only the misdemeanor kind.
New York Cars Receive More Protection than Pets
The maximum penalty for aggravated animal cruelty under Section 353 (a) is only two years. This is clearly inadequate given the heinous nature of many abuse cases. Further, not all defendants, if convicted, receive a maximum sentence.
If a New Yorker intentionally sets fire to a car they are guilty of arson in the third degree.[31] This is punishable by up to 15 years in prison. On the other hand, if that same person burns a dog or cat alive, they get only two years. Apparently, we care more about our pet cars than our pet dogs or cats.
The federal PACT Act provides for imprisonment for up to seven years for animal abuse. New York laws must be amended to match the PACT penalties.
New York Law Must Be Changed
New York’s current animal abuse statues are poorly drafted and the punishment inadequate. The penalties should be increased to parallel those of the PACT Act. Further, the statutory scheme makes little sense. If a distinction is to be drawn between misdemeanor and felony cruelty, it may make sense to distinguish acts of neglect (e.g., hoarding) from purposeful violence (e.g., burning, mutilating, crushing), rather than force the courts to parse the line between “cruelty” and “aggravated cruelty.” Perhaps New York might take a lead role in recognizing that animals are sentient creature. It might consider creating a secondary crime of infliction of emotional distress upon the abused pet’s owner. Finally, a statute that excludes “justifiable” cruelty is absurd since cruelty to animals in any form can never be justified.
[1]. 18 U.S.C. § 48 (a)1.
[2]. 18 U.S.C. § 48 (f)1.
[3]. 18 U.S.C. Sec 2262.
[4]. Family Court Act § 842 (i)1.
[5]. 18 U.S.C. Sec. 2261A (1) iii.
[6]. 18 U.S.C. Sec. 2261A (2)A.
[7]. Davis Favre, “Damages for Injuries to Animals-Pets,” (2003), Mich. State Univ. Animal Legal and Historical Center, at https://www.animallaw.info/article/overview-damages-injury-animals-pet-losses.
[8]. 135 P.3d 542 (Wash. 2006).
[9]. Id.
[10]. State of Oregon v. Amanda Newcomb, (2016) 375 P.3d 434.
[11]. Id.
[12]. People ex rel. Renshaw v. Gillespie 25 A.D. 91 (3rd Dep’t 1898) “ . . . it is now settled law that a dog is property.”
[13]. Sentell v. New Orleans & C.R. Co., 166 U.S. 698, 701–02 (1987).
[14]. Agriculture and Markets Law § 363.
[15]. Agriculture and Markets Law § 353.
[16]. Agriculture and Markets Law § 353-a.
[17]. Stephen Iannacone, Felony Animal Cruelty Laws in New York, 31 Pace Law. Rev. at761 (2011), citing a case where a man crushed goldfish under his heel.
[18]. Id.
[19]. 154 A.D. 3d (1st Dep’t 2017).
[20]. Id.
[21]. 30 N.Y.3d 1106 (2018).
[22]. People v. R.M., 63 Misc. 3d 541 (N.Y. County Ct, Westchester Co., 2018).
[23]. Id.
[24]. Animal Fighting and Cruelty Cases in New York A GUIDE FOR JUDGES, PROSECUTORS AND DEFENSE COUNSEL (n.d.), retrieved at: https://www.nycbar.org/animal-fighting-and-cruelty-cases-in-new-york-a-guide-for-judges-prosecutors-and-defense-counsel.
[25]. 174 A.D.3d 210 (3d Dep’t 2019).
[26]. Agriculture and Markets Law § 374(8) (c).
[27]. 175 A.D.3d 1428 (2d Dep’t 2019).
[28]. People v. Napoli, 167 A.D.3d 1080 (3d Dep’t 2018).
[29]. In re Pastor, 154 A.D. 3rd 184 (1st Dep’t 2017).
[30]. People v. Pastor, 160 A.D.3d 419 (1st Dep’t 2018).
[31]. New York Penal Law § 150.10.
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