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The veterinarian's response to suspected animal abuse (Proceedings)
A number of contemporary developments leads one to conclude that the role of the veterinarian in society is in a state of flux.
A number of contemporary developments leads one to conclude that the role of the veterinarian in society is in a state of flux: for a number of reasons one can argue that the veterinary practitioner is now clearly within that group of professionals that society has generally characterized as "health care professionals" along with physicians, dentists, nurses, optometrists and others. While the veterinarian has historically played a role in related fields such as the prevention of parasitic zoonotic disease, comparative health issues and public health matters, new and exciting developments in other fields have enhanced the societal view of the profession and has resulted. Recent proposed amendments to animal cruelty laws in Canada and several states in the United States. also serve to suggest that the veterinarian is truly a "health care professional".
As the role of the veterinarian in society changes though, so too do the legal implications for practitioners. The prudent veterinarian and state regulatory bodies will become familiar with and actively participate in the evolution of this area of the law so as to promote the best interests of the profession and the public generally.
Criminal Law Purpose
The criminal law has, as its purpose, the need to penalize members of our society which engage in conduct that is viewed as socially unacceptable - the sentencing aspects for convicted offenders are to provide specific deterrence for the offender and general deterrence for the public generally. That conduct which is not viewed as socially reprehensible or authorized by law falls outside the criminal law sanctions; thus activities such as hunting, fishing, and slaughterhouse operations fall outside criminal penalties.
In order to appreciate the magnitude of the proposed federal amendments to the Code one must understand the current state of the law and some fundamental criminal law notions. As well, to provide a full background and offer a brief comparative analysis it may be instructive to undertake a review of the criminal law in the United States.
As a general overview the current law recognizes two fundamental principles: first, that animals are a form of property and thus worthy of criminal law protection for the benefit of the owners of such property; second, that animals are dependent on humans for necessary elements of life. As such, the current criminal law in both Canada and the United States offers two different types of offences relating to animal cruelty: those that deal with the intentional infliction of pain on an animal and those that deal with the failure of owners to provide the necessary care, food and shelter for animals. In most cases the current criminal laws against animal abuse are antiquated and require that prosecutors prove some form of criminal intent.
In many jurisdictions it is a defense to any of the current offences for the accused to establish that he or she acted with legal justification or excuse or with "colour of right". In this regard, if the accused can establish that he or she honestly believed in a state of facts which, if true, constituted a legal justification, then no conviction can follow. An additional current defense is that of "statutory authorization"; that is, conducting oneself in accordance with government legislation such as killing an animal in accordance with provincial hunting regulations.
In order to understand the nature of the current penalties that may be imposed upon the conviction of any of these Code offences one must understand the criminal law notions of misdemeanor conviction and felony offences. At present, most animal abuse cases are simply misdemeanors which carry little penalties.
A review of the various state cruelty to animals enactments demonstrates that there is little consistency in defining what acts are prohibited and thus criminal law offences. "A majority of states define cruelty with such vague and ambiguous language that unless the alleged act or omission is extreme and outrageous it is unlikely that it will violate the statute." Similar to the current Canadian law the statutes in the United States commonly refer to "needless" mutilation, "unjustifiable" infliction of injuries, failure to provide "proper" care and "unnecessary " pain and suffering. As such, the legislation necessarily imposes some limitations on the successful prosecution of offences as it calls upon an interpretation of what exactly is "needless" or "unjustifiable" or "unnecessary". "As a result, the enforcement of anti-cruelty laws has been inconsistent and unpredictable."
Another focus of the American anti-cruelty legislation is the offending conduct is solely focused on the acts of the offender as opposed to the perspective of the injuries or death suffered by the animal.
As referred to above, similar defenses to the criminal offences relating to animal abuse as exist in Canada also exist in the United States. The very fact that the accused has an opportunity to demonstrate a lawful excuse through an interpretation of conduct that might not be "needless", "unjustifiable" or "unnecessary" provides an avenue of defense that arguably does not reflect contemporary society's abhorrence to animal violence merely because it causes pain and suffering to the animal.
Recently there has been some legislative activity in certain states to strengthen their animal abuse laws by introducing greater fines and longer terms of imprisonment. In at least fifteen states these crimes have now been characterized as the more serious felonies for persons who have been accused of intentionally causing injuries or death to animals. The rationale for this is suggested as follows:
"The potential correlation between animal abuse and family violence, the increased publicity given to animal abuse cases, the public outcry that follows acts of cruelty, an awareness of the human-animal bond and the critical role animals play in our daily lives have all fueled the emerging view that abused and neglected animals should be afforded greater legal protection."
It appears that the impact of animals in the United States society is also being recognized and leading to governmental re-consideration to implement greater protections against animal abuse for similar reasons as exist in Canada. As such, it is apparent that the role of the veterinarian in animal abuse cases in the United States is changing along with his or her Canadian veterinary colleague.
Generally speaking, the state legislatures are moving to substantially increase the penalties for those convicted of animal abuse with moves to make such offences felonies as opposed to misdemeanors. The penalties include substantial monetary fines or imprisonment and court orders restricting an accused's ability to own animals in the future.
Rationale for Amendments
Given the relatively significant changes to the animal abuse laws,it is a worthy endeavour to reflect on the reasons why these changes have been introduced. While the amendments serve to attending to some "housekeeping matters" (such as removing the difference between special consideration for "cattle" in favour of rules that apply to all "animals"), we shall review three salient reasons offered by the altered view of society with respect to animals.
Special Form of Property
It is clear from the movement of the animal abuse provisions from the "property" offences to the "public morals" part of legislationis an indication that our society views animals in contemporary times as more than just property. In a veterinary context it is respectfully suggested that this serves as societal acceptance of the existence of the human/animal bond; that is, the special relationship which exists between an owner and an animal beyond the actual property value of the animal.
According to the American Animal Hospital Association's study of the future of the veterinary profession and the more recent joint study of the American Veterinary Medical Association, the American Animal Hospital Association and the Association of American Veterinary Medical Colleges 85% of respondents believe that people are more attached to their pets now because pets are more like "members of the family now". With such a recognition of the inherent importance of pets one can appreciate the strong impetus for the federal government to be considering changes to the animal abuse laws.
Animals as Sentient Beings
Another critical factor leading to the proposed amendments to the Canadian Criminal Code is the growing notion that animals require the protection of the federal criminal laws in that they are sentient beings; that is, they are beings that are capable of feeling pain. Indeed, it is suggested that this must have been one of the key factors that law reform participants considered in drafting the Bill as the amendments now include a specific definition of the term "animal" which concentrates on its sentient nature:
"animal" means a vertebrate, other than a human being, and any other animal that has the capacity to feel pain" [emphasis added]
The clear suggestion is that reforms were required including increased penalties and increased ownership-prohibition orders merely to protect any animal that has the capacity to feel pain.
Nexus with Family Abuse
Dr. Randy Lockwood of the Humane Society of the United States has provided compelling evidence of the clear link between those with a propensity to engage in animal abuse and their propensity to engage in child or spousal abuse. While noting such notorious criminals with such a link to animal abuse as Ted Bundy, Albert DeSalvo ("The Boston Strangler") and Jeffrey Dahmer, Dr. Lockwood's research has clearly demonstrated that this nexus is quite compelling among the general population as well. As a result of this research the Washington Humane Society launched an advertising campaign in 1994 which included a poster that had a picture in which the top half was that of a little girl and the bottom half that of a cocker spaniel with the caption "Sometimes you can spot child abuse without ever seeing the child".
Similarly, a 1980 English study found evidence suggesting that children are at risk of abuse or neglect in families that abuse their family pets. The study reviewed 23 families that had a history of animal abuse of which 83% had been identified by human social service agencies as having children at risk of abuse or neglect.
In order to compete our study of the legal implications of the changes to animal abuse laws the role of the veterinarian professional arising from such amendments, it is not enough to merely review the proposed enactment. It is respectfully suggested that we must now speculate on the impact that these changes may have for the veterinary profession and invite its members to actively participate in the current debate. All of these changes and the rationale for them lead one to the conclusion that the role of the veterinarian in society is changing to that of "health care professional"; that is, one who our society expects will play a role in the preservation of human health in an unconventional manner. Such an altered role will lead, it is suggested, to a greater public accountability to meet society's expectations and increased exposure to liability when one fails to meet those obligations.
The Expert Witness
There is little doubt that, as the public continues to express its outrage with respect to animal abuse cases, there will be a trend for the veterinarian to be engaged as an expert witness in criminal trials to provide opinions as to the nature of the injuries suffered by an animal. You will recall that the proposed amendments still include language such as "unnecessary pain" in the Bill for new criminal offences along with the need for a determination of what constitutes "reasonable care" for animals. It is suggested that this will require the evidence of one skilled in animal care and pain in order for a conviction to be obtained.
The difficulty is that such opinions are largely subjective and many veterinary practitioners admit that there does not appear to be a central, objective series of tests that can be viewed in assisting with forming such opinions. A problem with animal abuse laws is their focus on the acts of the offender as opposed to the injuries suffered by the animal and there does not appear to be a veterinary medical profile analogous to the "battered child syndrome". There appears to be some assistance from the University of Pennsylvania School of Veterinary Medicine which had offered a residency in forensic pathology focusing on identifying symptoms of abusive treatment. As well, one would be well advised to review the work completed by Dr. Gary Patroneck at Tufts University in the recognition and reporting of animal abuse. Dr. Patroneck and his colleagues have developed the Tufts Animal Condition and Care (TACC) score to alleviate some of the ambiguity that veterinarians and law enforcement officials encounter when determining whether or not sufficient evidence of animal abuse is present. "The TACC score incorporates scales to evaluate body condition, to assess risk from exposure to temperature extremes, and to evaluate sanitation and grooming as indicators of the adequacy of animal care. These criteria are useful because they are independent of human intent and social norms concerning animal care, and are rooted in the consequences for the animal."
So long as the profession collectively makes an effort to produce objective standards of animal abuse, then the voice of the veterinarian as an expert witness will be of assistance in securing convictions under the new criminal law regime.
The Whistle Blower
Another more interesting and compelling role for the veterinarian in the future in his or her role of "health care professional" relates to the potential for mandatory reporting of suspected animal abuse to not only animal protection services but to child and family service organizations. Given the compelling evidence presented by Dr. Lockwood and others, it is respectfully suggested that the veterinarian may, indeed be called upon to join other "health care professionals" in the reporting of animal abuse so as to assist in the investigation and reporting of child and spousal abuse.
In the United States every state mandates the reporting of child abuse; however, as well, Minnesota and West Virginia mandate the reporting of animal abuse. Some consideration must be given by Canadian veterinary regulators as to whether or not there should be mandatory as opposed to permissive reporting of suspected animal abuse if we are to be truly successful in stemming the increase in child and spousal abuse cases.
It is reasonable to suggest that the veterinarian may also be called upon to act in the role of investigator. No doubt police officials will request the veterinarian to assist in investigations of animal abuse and to physically attend premise where suspected abuse is encountered to render opinions. Once again, it is necessary for the profession to formulate and adopt common objective standards for the determination of whether abuse exists or not.
A review of the policy statement of the Canadian Veterinary Medical Association with respect to animal abuse suggests another new role for the veterinarian; that of teacher and educator. The CVMA statement is as follows:
"The Canadian Veterinary Medical Association (CVMA) recognizes that veterinarians are in a position to observe occasions of suspected animal abuse. The CVMA believes that in situations that can not be resolved through education, it is the veterinarian's responsibility to report such observations to appropriate authorities."
This policy statement appears to suggest that, as a first initiative, the veterinarian is called upon to attempt to educate his or her clients with respect to proper care of the clients' animals and that, if such efforts are unsuccessful, then the veterinarian is required, at least ethically, to report the suspected abuse. It is interesting to note that the statement does not define who the "appropriate authorities" are: are they the local humane societies? are they the police? (Quaere whether or not the failure to report suspected abuse to police officials at the first instance might lead to a charge of obstruction of justice against the veterinarian in light of the proposed criminal law amendments which remove the proving of intention which is discussed below)
The Offender or Co-Conspirator
A final, and somewhat unseemly, role for the contemporary veterinary professional goes to the potential for the veterinarian himself or herself being charged and convicted of animal cruelty arising out of either the direct conduct of the practitioner in the discharge of his or her duties or in acting indirectly with a client in failing to report suspected abuse to police officials.
In addition, the importance of the new role as "health care professional" for veterinarians carries with it risk of exposure to prosecution for the failure to report abuse potentially. As the proposed offence does not require evidence of intention, then the attending veterinarian treating an animal for injuries sustained as a result of suspected abuse may be obstructing justice if he or she fails to report such suspicions to police.44.
The veterinary community must thoughtfully consider all of these issues in order to avoid being charged with animal abuse under the proposed criminal law amendments.
It is respectfully suggested that the proposed changes to the criminal law relating to animal abuse may have a profound impact on the veterinary profession: not only in its perceived role in society but for the exposure to prosecution that individual veterinarians may have. If the veterinarian's status has been altered to be included with other "health care professionals" then the prudent practitioner will be aware that such elevated status is attended with increased legal obligations as a reflection of society's expectations.