PROTECTING OUR PETS: COURTROOM ADVOCATE OR SPECIAL PROSECUTOR? A CRITICAL COMPARISON BETWEEN TWO APPROACHES TO PROVIDING ANIMALS BETTER PROTECTION IN THE COURTROOM.

Author:Winkler, Tamara
 
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"The greatness of a nation and its moral progress can be judged by the way its animals are treated." --Mahatma Gandhi I. INTRODUCTION 246 II. BACKGROUND 248 A. ANIMALS RIGHTS AROUND THE WORLD 248 B. ANIMAL ABUSE CO-EXISTS WITH VIOLENCE AGAINST PEOPLE 249 C. ANIMAL CRUELTY Is Now INCLUDED IN THE FBI'S UNIFORM CRIME 252 REPORTING PROGRAM D. ALDF RANKS ANIMAL CRUELTY LAWS OF ALL FIFTY STATES FROM 253 BEST TO WORST III. TWO APPROACHES TO ANIMAL PROTECTION IN THE COURTROOM 254 A. CONNECTICUT'S DESMOND'S LAW 254 i. Role Of An Advocate Under Desmond's Law 255 ii. Proponents of Desmond's Law 257 iii. Opponents of Desmond's Law 257 B. OHIO REVISED CODE [section] 2931.18 258 i. Proponents of O.R.C. [section] 2931.18 259 ii. Opponents of O.R.C. [section] 2931.18 261 IV. A CRITICAL COMPARISON OF DESMOND'S LAW TO O.R.C. 262 [section] 2931.18 A. PROGRESS AND SUCCESS OF DESMOND'S LAW 262 i. Desmond's Law Provides an Opportunity for 263 Experiential Learning ii. Desmond's Law has the Potential to Reduce Costs 264 to Tax Payers B. THE LEGAL STATUS OF AN ANIMAL ADVOCATE IS VERY 265 LIMITED AND CLOSER TO A VICTIM'S ADVOCATE AS OPPOSED TO A GUARDIAN AD LITEM C. PROSECUTORS ARE MORE POWERFUL THAN ADVOCATES AND 266 ARE BEST SUITED TO WORK WITH LOCAL HUMANE AGENTS TO COMBAT ANIMAL ABUSE V. CONCLUSION 268 I. INTRODUCTION

Americans own over 390 million pets. (1) As much as one would like to believe that each and every animal is loved and cared for unconditionally, unfortunately animal abuse is a serious and pervasive issue. Abuse towards animals occurs every sixty seconds. (2) Abuse occurs in several forms, from neglect and hoarding, to intentional, gross, and malicious treatment. (3) In the United States, preventing and punishing animal abuse is largely the responsibility of individual states, (4) and the strength of animal protection laws varies greatly from state to state. (5) With Americans owning around seventy-eight million dogs and eighty-five million cats, state legislation which protects companion animals is more important than ever before. (6) Analyzing the effectiveness of states' animal abuse laws is a necessary first step in determining the most effective means for protecting companion animals. Ohio and Connecticut provide two competing examples of states that have passed legislation with the goal of better protecting animals in a court of law.

Connecticut is one state whose legislatures have recently taken a more critical examination of its animal cruelty laws. Between the years 2006-2016, eighty percent of all animal abuse offenses in Connecticut were nulled or dismissed. (7) These statistics prompted the Connecticut legislature to pass into law House Bill 5344, "An Act Concerning Support for Cats and Dogs that are Neglected or Treated Cruelly." (8) Connecticut became the first state in the nation to pass such a law, informally known as "Desmond's Law," which allows for court-appointed advocates to represent the animals in abuse and cruelty cases. (9) As official parties to the case, the animal advocates can perform investigative work, such as interviewing veterinarians and other witnesses. (10) The advocates can also write briefs, present oral arguments, and provide recommendations to the judge. (11) A judge has discretion in appointing an animal advocate, but the advocate can also be requested by prosecutors or defense attorneys. (12)

Ohio is another state which has taken critical steps to provide animals with better protection under the law. "Ohio permits the human society to appoint special prosecutors for animal cruelty cases." (13) Ohio's "Special Prosecutor Law", or O.R.C. [section] 2931.18, has been in effect for over ninety-one years. (14) As official parties to the case, these specially-appointed prosecutors have successfully helped resolve cases in a very effective manner.

This Comment seeks to evaluate the current legal landscape surrounding animal cruelty laws, with a specific focus on Desmond's Law and O.R.C. [section] 2931.18. Connecticut's new law has placed a spotlight on an area of the law which has not been given the priority it so desperately needs. Animal cruelty is a type of interpersonal violence that does not occur in isolation, and placing more importance on animal cruelty laws can help prevent violence against humans. First, this Comment will provide a history of animal rights laws around the globe, followed by a detailed discussion of why animal abuse issues deserve more attention in our society than they currently receive. This Comment next provides a detailed analysis, followed by a critical comparison, of both Desmond's Law and O.R.C. [section] 2931.18. Although both laws can serve as models for other states that wish to strengthen their animal cruelty laws, this Comment argues that Ohio's O.R.C. [section] 2931.18 is a more effective law for the prosecution of animal abuse cases. This Comment concludes with suggestions on how states can better improve their entire body of animal cruelty laws, with the ultimate goal of preventing violence against both animals and humans alike.

  1. BACKGROUND

    1. ANIMAL RIGHTS AROUND THE WORLD

      Many believe that "rights" are a concept unique to the human moral code. (15) Nevertheless, different countries around the world have afforded animals different levels of rights. France provides the earliest existent record of an animal trial from 1266, when a pig was executed in the city of Fontenay-aux Roses. (16) Switzerland, one of the most progressive countries in the field of animal rights, amended its constitution in 1992 to "recogni[z]e animals as beings and not things." (17) In what is considered the greatest legal success in the history of animal rights, New Zealand granted basic rights in 1999 to five great ape species, banning their use in research, testing or teaching. (18) Germany became the first EU country to amend its constitution to guarantee rights for animals in 2002. (19) In 2015, the United States came close to recognizing chimps as legal persons when a New York judge granted two research chimps a writ of habeas corpus, effectively recognizing them as legal persons. (20)

      Although several countries have afforded animals various levels of rights, the protection of animals need not rely on a rights argument. Regardless of whether one considers animals to have the same rights as humans, Professor Carl Cohen of the University of Michigan, Ann Arbor argues that humans have an obligation not to cause needless suffering to animals. (21) "Theory of utilitarian ethics has been viewed as providing support for a competing view of rights that has proved popular with many animal rights activists." (22) "A utilitarian is someone who believes that our basic moral duty is to maximize happiness or the satisfaction of preferences and thus to minimize pain and disappointment." (23) "If an animal is capable of experiencing pain or pleasure, a utilitarian may argue that the animal's interests should be given equal consideration to the interests of a human in experiencing pleasure and avoiding pain." (24)

    2. ANIMAL ABUSE CO-EXISTS WITH VIOLENCE AGAINST PEOPLE

      Animal cruelty is too often viewed as a secondary offense. (25) Because prosecutors face a substantial caseload of murder, rape, battery, and other violent crimes involving human victims, they typically do not make animal cruelty cases a priority. (26) However, animal abuse is a type of interpersonal violence that co-exists along with child abuse, spousal abuse, and elder abuse. (27) Consequently, animal abuse cases can expose family violence--when an animal is being abused, a child or family member is likely being abused as well. (28) Therefore, making animal cruelty cases a priority can better protect human victims from serious acts of criminal violence.

      According to the American Prosecutors Research Institute, there are several forms of animal cruelty. (29) The most common form of animal cruelty is simple neglect, which is the failure to provide adequate food, water, shelter, or veterinary care. (30) Animal hoarding is associated with the accumulation of large numbers of animals and the subsequent failure to provide minimal standards of nutrition, sanitation and veterinary care. (31) Gross, willful, cruel, or malicious neglect is the act of "intentionally or knowingly withholding food or water, causing dehydration or starvation." (32) Organized abuse includes crimes such as dogfighting and cockfighting. (33) There are also crimes that fall under ritualistic abuse and animal sexual abuse, or bestiality. (34)

      Animal abuse does not occur independently from other crimes. According to the Animal Legal Defense Fund, people with a history of harming animals are five times more likely to harm humans than people who do not have a history of abusing animals. (35) Additionally, a six-year "gold standard" study conducted in eleven metropolitan cities concluded that animal abuse is one of four predictors of domestic partner violence. (36) In a study of families under investigation for suspected child abuse, sixty percent of the families were documented for pet abuse. (37) Unfortunately, abusers often use companion animals as a tool to punish and control victims, thus causing many women to remain in abusive situations due to threats against their companion animals. (38) Almost half of all domestic violence victims have reportedly delayed leaving a dangerous situation out of fear for their pets' safety. (39) Of those who do leave, around seventy one percent of women seeking shelter from domestic violence are fleeing partners who have injured or killed a family pet, or threatened to do so." (40)

      At the extreme end of the spectrum, cruelty and abuse towards animals can be a red flag- precursor to extremely violent crimes. Serial killers almost habitually have histories of abusing animals. (41) Devin Patrick Kelley, the gunman who killed twenty six people at the First Baptist Church in Sutherland Springs, Texas, was...

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