Wash. court defines pain in cruelty case


Tacoma, Wash.-In an unprecedented ruling, the Washington Court of Appeals has determined how much pain is needed for an animal cruelty conviction.

Tacoma, Wash.-In an unprecedented ruling, the Washington Court of Appeals has determined how much pain is needed for an animal cruelty conviction.

The amount of pain necessary: not much, according to legal experts on both sides of the case, which involved two senior horses in Pierce County that, according to court documents, were severely underweight "with ribs, bones and jaws sticking out."

The court determined "mild discomfort" is enough to convict, defining pain from "mental uneasiness" to "dull distress" to "unbearable agony."

Such a broad definition of pain strengthens the ability to convict people under the second-degree animal cruelty law, says Alicia Burton, Pierce County deputy prosecutor who handled the horse case. The second-degree cruelty law makes it a misdemeanor to knowingly or negligently cause "unnecessary" pain in an animal, but does not define pain.

"Previous to this decision, there was no court that defined what pain was. Essentially what the court said was that it can be a very minimal amount of pain sufficient to prove animal cruelty," she says.

"We've always operated on the assumption that we wouldn't have to prove a lot of pain," she adds. "It wasn't until this case that we had to step back and say they're requiring a lot more of us."

But in the end, the case worked in the favor of prosecutors and raised some brows in the meantime.

Adam Karp, animal law attorney and board member of the Washington State Bar Association's animal law section, calls the case "landmark," adding it will guard against psychic pain and physical discomfort.

Landmark decision

"It is landmark in that it provides a common sense understanding to the definition of pain as experienced by humans and nonhuman animals," Karp says. "Prior to this ruling, 'pain' was undefined."

In reference to the psychological aspect of pain, Karp says, "The definition of pain endorsed by the court might allow for intervention for severe psychological distress such as that experienced by pets kept in isolation to the degree that they self-mutilate, engage in repetitive motions such as pacing, and show signs of significant emotional anxiety."

Brian McLean, Kent, Wash.-based attorney representing the horses' keepers, agrees that if the Washington State Supreme Court affirms the case, it represents an historic new development in that "mild discomfort" is sufficient to show physical pain.

However, McLean takes issue with Karp's statement that the new ruling may allow for intervention related to psychological pain. "If this attorney means that psychic pain includes emotional distress or depression, I think this is absurd reading of the case. The statute is limited to 'physical pain.' "

Differing view

He also says the law went too far, arguing there's no evidence that his clients intended to inflict pain. "More subtly, the opinion seems to abandon any consideration of whether the treatment is cruel," McLean says.

McLean has filed a challenge to the opinion with the Washington State Supreme Court and says he expects the court to narrow the holding.

The case began in May 2001, when a humane society investigator followed up on the condition of two malnourished horses. Two weeks after the humane society employee made recommendations, a veterinarian, Dr. Linda Hagerman, examined the horses and found the two severely underweight. Upon the veterinarian's counsel, authorities seized the horses.

Case background

A district court jury convicted the owners of second-degree animal cruelty, but a Superior Court judge threw out the convictions, claiming the case lacked sufficient evidence to prove pain.

In reinstating the original convictions, the Court of Appeals said the jury reasonably determined that the underweight horses felt at least mild discomfort. The court additionally said causing such discomfort violated the law against inflicting "unnecessary pain" on animals.

While Washington has defined pain in reference to animal cruelty, Karp points to neighboring Oregon as a "leader in animal cruelty laws."

Impact of case

"Obviating the need for cases like Zawistowski, in 2001, Oregon streamlined the challenge of presenting sufficient pain evidence in animal cruelty cases by allowing the state to proffer objective signs of pain a lay juror could comprehend without expert testimony," he says.

He continues, "One commits animal abuse in Oregon by causing severe first- or second-degree physical injury to a nonhuman animal. Thus, if one can prove 'fractures, cuts, punctures' or other wounds, there is no need to surmise whether the animal endured pain. It is presumed."

Speaking to the definition of pain, McLean says he's not found another case where pain in an "analogous statutory scheme" has been defined to include mild discomfort.

"What makes this case unique is that the court concluded that the horses experienced extreme hunger and that this permitted a reasonable inference that the horses experienced mild discomfort, that is, pain," he says.

He adds, "The statutory term 'pain' tries to ascribe human feeling to animals. This is problematic culturally, socially and legally in light of the relationship that people have had historically with animals."

While veterinarians aren't expected to be directly affected by the outcome, Burton, prosecuting attorney, says the ruling may enhance their testimony and trial, should they be called to the stand.

Expected veterinary impact

"It allows them to say based on my experience, a horse with these symptoms would suffer pain without having to say they did, in fact, suffer pain," she says.

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