Introduction
Chapter 1
Introduction
What makes people harm, injure, or kill animals?
The aim of this book is to answer that question through an evaluation of the reasons why people harm, inflict injury on, torture or kill animals and why they take them from the wild or use them in ‘sports’ which ultimately result in the animal’s death. It considers the ethical and value judgements individuals and groups make about animals and the acceptability of harm caused to animals, as well as the neutralizations and justifications that are used to justify action towards animals that society generally finds unacceptable. The aim of this book is to situate animal abuse, wildlife crime, the illegal trade in wildlife and other unlawful activities directed at animals firmly within green criminology, where perspectives on species justice consider the responsibility man owes to other species as part of broader ecological concerns.
The book’s origins are in research into wildlife crime conducted since 2000 (and which is ongoing) and which initially identified that while criminal justice policy generally treats all wildlife offenders as if they are rational actors motivated primarily by profit, the reality is that a variety of motivations and behaviours go to make up wildlife crime and various forms of animal abuse. In effect, this book attempts to outline the characteristics of the animal offender, dealing specifically with criminality and criminal behaviour involving animals. The book uses the term ‘animal harm’ (defined more explicitly in Chapter 2) to cover a range of activities directed at animals but which inevitably result in some form of harm whether physical or psychological. Analysis of animal harm provides for in-depth analysis of criminality and criminal behaviour in a variety of different ways. Attitudes towards animals both on the part of the offenders who harm them and the society which punishes, or in some cases allows the harm to continue, reveal much about tolerance for different forms of violence within society, sympathy towards the suffering of others, the capacity for empathy (Beetz 2009), or an inclination towards violence or other forms of antisocial behaviour (Linzey 2009). As a result, animal harm has importance as an area of study both in its own right as a particular type of crime, and as part of mainstream criminology. However the central contention of this book is that animal harm and offending against animals is a distinct type of criminality, albeit one that has many dimensions, and needs to be seen as such by criminologists, criminal justice policymakers and legislators, although as this chapter will outline, in practice, legislation already reflects differences in types of animal harm.
Animal Harm as Green Criminology
Although now recognized as a legitimate field of study, one potential difficulty for green criminology is in framing harms to the environment (incorporating environmental criminology and ecological justice) as a distinct area of study somehow separate from other criminological concerns. As Peelo and Soothill identify, criminology ‘appears as a relatively dull subject in which data and theory are used to unpick all that people of “common sense” know to be obvious truths about the state of crime in Britain and America today’ (2005: ix). Yet green criminology at its best attempts to both challenge and indeed overturn many common-sense notions of crime to reveal and challenge the reality of harms with wider social impact and negative consequences for the environment and human relations. In the specific context area of human–animal relationships and species justice, green criminology is uniquely placed to promote news ways of thinking about our attitudes towards and exploitation of animals as an integral part of mainstream criminal justice, albeit one worthy of dedicated study as a distinct aspect of criminality.
Benton suggests that ‘it is widely recognized that members of other animal species and the rest of non-human nature urgently need to be protected from destructive human activities’ (1998: 149). Contemporary notions of justice must, therefore, extend beyond traditional human ideals of justice as a punitive or rehabilitative ideal, to incorporate shared concepts of reparative and restorative justice between humans and non-human animals and an obligation on human societies to minimize the harm caused to both their human and non-human residents. An effective criminal justice system arguably needs to provide justice for all ‘citizens’ whether human or ‘nonhuman animal’ (Donaldson and Kymlicka 2011) and to incorporate wider notions of citizenship in considering the impacts of criminality. In doing so the idea of justice requires expansion to consider the nature and consequences of criminal behaviour and different types of crime not just on human society, but also to the wider environment and to non-humans. However, within species justice discourse, there are different perspectives on the nature and causes of animal abuse and the importance of animal interests when compared with human interests (Singer 1975, Regan 1983, Linzey 2009). These differences are reflected both in animal protection legislation and in the criminal justice response to different aspects of animal harm.
Social theorists and theologians argue that man’s dominant position on the planet necessitates living in harmony with the environment and ‘non-human’ animals (Singer 1975, Benton 1998, Linzey 2009). Thus violence and cruelty towards animals makes society poorer because it demeans us as individuals and increases the acceptance of violence within society. Within the animal rights literature there are complex arguments about the moral imperative to respect and promote animal welfare and the consequences of cruelty to animals for society. Criminologists (e.g. Benton 1998, Beirne 1999, White 2007) have also recognized the link between environmental and animal protection laws and the development or improvement of society. Increased acceptance of environmental concerns and better animal protection and welfare standards make society better by extending social justice principles beyond human concerns. Criminological research also indicates a link between animal cruelty and violence towards humans (Linzey 2009), primarily indicating that animal abuse is a precursor to human violence but also identifying violence towards animals as indicative of antisocial characteristics within human relationships. Promoting good animal welfare and preventing cruelty towards animals thus benefits society not only by preventing possible future violence towards humans, but also in protecting and improving society by positively influencing our co-existence with animals and the environment and developing a strongly institutionalized protection of universal civil liberties based on respect for and humanity to others.
Yet the reality is that much animal harm remains legal and indeed is positively provided for in legislation. Debates in theology, criminology and the study of animal law which consider the rights of animals and the moral wrong of inflicting harm on other sentient beings are not yet truly reflected in any form of universal animal protection legislation. Instead, in law animals are protected only in certain circumstances and from certain activities (Radford 2001, Zimmerman 2003, Schaffner 2011), primarily according to human interests, or at best where animal interests happen to coincide with human ones. While the principle argument for providing animals with legal rights is utilitarianism and recognition of the fact that animals as sentient beings can suffer (see Bentham 1789, Singer 1975) and that suffering in animals often causes humans to suffer, the concept of legal rights for animals has yet to be widely accepted by legislators and policymakers (see, for example, Wise 2000, Sunstein and Nussbaum 2004, Scruton 2006, Ascione 2008) although the need for improved standards of animal welfare and anti-cruelty statutes has been largely accepted by legislators around the world and incorporated into a range of legislative measures. Drawing on Jeremy Bentham’s ideas that animals deserved equal consideration Singer, in Animal Liberation (1975), argued not that animals have rights, but that humans and animals have equal interest in avoiding suffering and so humans should apply equal consideration to animals, making moral choices that try to avoid animal suffering wherever possible. Crucially Singer does not argue that all animals should be treated equally and thus accepts that animals of different species have different interests. However, the principle of utilitarianism is that we should make our lives as free from cruelty as possible and avoid inflicting pain and suffering on animals and humans alike. For utilitarianism the benefit of animal welfare is its contribution to an ethical society which tries to minimize pain and suffering wherever and however they occur. Singer’s utilitarianism thus provides that animal welfare contributes to the improvement of society and the public good by being a core philosophy that lessens violence in society, leads to a more moral society but, crucially, it does not seek to prohibit all uses of animals where society might benefit from the use (e.g. animals used for food and arguably some forms of animal research) if appropriate welfare standards are maintained. Animal law broadly incorporates this view, providing a framework for the continued use of animals where beneficial to human interests, while prohibiting actions that either conflict with or are incompatible with acceptable use or contravene socially constructed notions of acceptable behaviour commensurate with the use of animals. Initially, then, it could be argued that animal harm is legislated against primarily where it impacts on human animal use, although as this chapter progresses this initial definition proves inadequate.
Principles of Animal Law
From the outset it should be made clear that the animal harm discussed in this book relates to illegal activity rather than any wider notion of harm caused to animals which constitutes a moral wrong. Even though some moral dimensions of animal harm are discussed throughout the text, the primary focus is on behaviour already prohibited by the law according to the legalist perspective of crime which Situ and Emmons (2000: 2) define as
The strict legalist perspective emphasizes that crime is whatever the criminal code says it is. Many works in criminology define crime as behaviour that is prohibited by the criminal code and criminals as persons who have behaved in some way prohibited by the law.
In short, the strict legalist view is that crime is whatever the criminal law defines it as being by specifying those actions prohibited under the law. For example the shooting of wild peregrine falcons (a protected species under UK wildlife law) would be a crime in the UK while the shooting of red grouse (during the ‘open’ season) would not be as UK law recognizes as legitimate the shooting of birds considered to be ‘game’, allowing them to be lawfully shot subject to certain conditions. Comparable legislative provisions exist in the United States, Canada and many other countries where game shooting is a lawful activity subject to state control through public law, and a regulatory regime which seeks to control numbers of birds and animals shot primarily through licensing and permit systems. This identifies one of the problems of a purely legalistic approach towards animal harm, that of the inconsistent manner in which the law deals with different animals; defining some forms of animal harm as permissible under the law, while prohibiting others. Non-governmental organizations (NGOs) and animal activists often consider this approach to animal legislation to be hypocritical, revealing the central dichotomy of animal legislation to be the conflict between human and animal interests with animal interests almost always being a secondary consideration. An alternative approach to animal legislation sometimes advocated by activists is the social legal perspective which argues that some acts, especially by corporations, ‘may not violate the criminal law yet are so violent in their expression or harmful in their effects to merit definition as crimes’ (Situ and Emmons 2000: 3). This approach ‘focuses on the construction of crime definitions by various segments of society and the political process by which some gain ascendancy, becoming embodied in the law’ (Situ and Emmons 2000: 3).
While the criminal justice system focuses solely on those acts that are prohibited by the criminal law, definitions of crime also need to consider how criminal acts manifest themselves and to consider those acts not yet defined as crimes but which go against the norms of society. Lynch and Stretesky, for example, explain that from an environmental justice perspective a green crime is an act that ‘(1) may or may not violate existing rules and environmental regulations; (2) has identifiable environmental damage outcomes; and (3) originated in human action’ (Lynch and Stretesky 2003: 227). They explain that while some green crimes may not contravene any existing law, where they result in or possess the potential to result in environmental and human harm, they should be considered to be crimes. This is an important issue in animal harm because much campaigning activity is aimed at extending the remit of the criminal law to encompass activities that are currently legal but which NGOs, their supporters and animal activists consider should be made unlawful. Although much animal legislation is not intended as criminal law, frequently it is only through the use of the criminal law and its enforcement mechanisms that animal harm can be addressed where environmental protection measures prove inadequate. The social legal perspective provides a mechanism through which contemporary concerns about animal harm and the abuse of animals which is revealed by animal activists and others could be integrated into legislative policy.
Animal legislation serves multiple purposes and is intended to address a variety of human activities considered harmful towards animals, although arguably animal law is primarily aimed at preserving human interests. Schaffner defines animal law as ‘legal doctrine in which the legal, social or biological nature of nonhuman animals is an important factor’ (2011: 5). The notion of animals as property has frequently dictated the extent to and manner in which animals receive legal protection and influences legal definitions of animal welfare (Lubinski 2004). Broom, in his foreword to Radford’s book Animal Welfare Law in Britain (2001), compares the treatment of animals as property in most early legal systems to the treatment of slaves, servants and even wives as possessions. This view persists in a number of legal systems (including in the UK’s groundbreaking Animal Welfare Act 2006) providing the ‘owner’ of an animal with the means to seek redress for damage to their ‘property’ while limiting protection of the animal to its value as property. While some animal welfare and anti-cruelty laws are designed to protect human investment in property, Broom argues that the view of domestic and other animals as sentient beings that deserve respect is a natural social progression ‘in the wake of a similar developing view that persons of other nations, creeds, or colours and women had such qualities’ (Radford 2001: Foreword). Wise (2000) also argues strongly that legal rights for animals are a natural progression of human evolution, societal development and enlightened thinking. The nature of animal law is, however, diverse and goes beyond providing animal protection or regulating ownership to consider issues of trade, contract, tort, criminal law, charity law and several other areas the legal principles of which are not covered in detail by this book. Animal law does, however, provide a clear framework for defining the illegal animal harm that is the subject of this book.
International Animal Law
International law sets out the obligations on states in respect of legal standards. The primary international law mechanisms are treaties and conventions (Schaffner 2011). Yet at present there is no binding international treaty for the protection of animals and thus no clear international legal standard on animal protection. Instead, it is down to individual states to decide the content of their animal protection laws either through public or private law mechanisms, which either consider animals to be worthy of state protection and public enforcement of animal harm (via public law) or as property subject to civil law allowing individuals rather than the state to resolve potential animal harm problems (via private law). Thus levels of animal protection vary from country to country or even on a regional basis where municipal authorities have law-making powers (e.g. state or province laws within the United States, Canada and Australia) dependent on the legislative approach taken and the extent to which cultural perspectives on animal harm are incorporated into legislation.
Quinney’s idea of crime as a social construction identified that acts defined as crime are, for the most part, behaviours undertaken by relatively powerless social actors (Quinney 1970). But the response to these actions and the way that knowledge and understanding of them is collected, collated and disseminated by different groups determines our understanding of crime. Animal harm is thus a social construction influenced by social locations, power relations in society and the need to both promote and protect specific ideological positions on animals by legislators and policymakers. Western conceptions of animal rights and the growing perception of a need for the legal personhood of animals to be part of law are not universally shared and thus western conceptions of animal harm cannot easily be incorporated into international law. Brown Weiss (1993) identified that until the 1960s environmental issues were viewed as state concerns and there was a lack of appreciation of the need for international environmental agreements. The Convention on International Trade in Endangered Species of Flora and Fauna 1973 (CITES) was one of the first and oldest international legal agreements on environmental issues; it provided a framework for future wildlife and animal protection measures (Zimmerman 2003). While CITES was preceded by the 1946 International Convention for the Regulation of Whaling, the text of the whaling convention makes it clear that it was intended to ‘provide for the proper conservation of whale stocks and thus make possible the orderly development of the whaling industry’. The whaling convention thus has trade and exploitation of whale stocks as its basis rather than being an international conservation or animal protection measure. While CITES (discussed further below) facilitates the use of animals by allowing wildlife trade under certain conditions through a permit system it also contains provisions clearly prohibiting use of endangered species and providing for criminal enforcement of any breach of its provisions. Rather than being pure international animal protection legislation CITES is conservation, management and trade legislation combined, which regulates a trade in animals and provides protection only in respect of the most vulnerable wildlife whose trade it prohibits. An unintended consequence of CITES is that by allowing a legal framework for trade in wildlife it facilitates the illegal trade and associated harm discussed in Chapter 8. Zimmerman (2003) describes CITES as successful, but as Schaffner (2011) contends, animal law is diverse and inconsistent and laws that are supposed to protect animals interests frequently do not. While a significant piece of international animal legislation, CITES has not yet fulfilled the role of international animal protection legislation although efforts have been made to implement such a measure.
A Universal Declaration of Animal Rights was presented to the United Nation’s Educational, Scientific and Cultural Organization (UNESCO) in 1978 which included, among other things proposals for:
• The introduction of legal animals rights similar to human rights principles including the right to live, right to freedom, right to home (for wild animals), freedom from cruel or inhumane treatment and freedom of expression rights.
• Minimum standards of animal welfare and freedom from cruelty for companion animals.
• Governmental responsibilities for animal rights and animal welfare.
• The outlawing of animal experimentation.
Although the proposed convention failed to achieve widespread international agreement, it was significant in introducing the idea of an international law mechanism that would allow animals to command the respect of law as a matter of public debate. Subsequent efforts at such an international measure include the April 1988 Committee on the Convention for the Protection of Animals’ proposal for an International Convention for the Protection of Animals which included measures on transportation of animal, methods of taking wildlife, care of exhibited wildlife and protection from cruel treatment. It is, however, worth noting that in 1982 the UN General Assembly adopted a World Charter for Nature which contains the following five principles of conservation:
1. Nature shall be respected and its essential processes should be unimpaired.
2. Population levels of wild and domesticated species should be at least sufficient for their survival and habitats should be safeguarded to ensure this.
3. Special protection should be given to the habitats of rare and endangered species and the five principles of conservation should apply to all areas of land and sea.
4. Man’s utilization of land and marine resources should be sustainable and should not endanger the integrity or survival of other species.
5. Nature shall be secured against degradation caused by warfare or other hostile activities.
At the time of writing (early 2012), the World Society for the Protection Animals (WSPA), supported by other NGOs, is also pursuing a campaign for a Universal Declaration on Animal Welfare (UDAW) to be adopted by the United Nations. The proposal currently has in excess of two million signatures and its main principles are to provide for legal respect for animals welfare, obligations on member states ‘to prevent cruelty to animals and to reduce their suffering’ (Article IV) and an improvement in the effectiveness of existing member state legislation to protect animals (WSPA 2011).
The UDAW is significant in shifting the international law debate away from animal rights and legal personhood for animals and towards animal cruelty and the different aspects of animal harm this book discusses. The preamble to the UDAW recognizes that most states currently have some form of anti-cruelty or animal welfare law; thus Article VI of the UDAW seeks to improve practices and capacity-building using national and international law. As this chapter outlines, animal cruelty is already recognized as an appropriate subject for legislative intervention such that many states’ anti-cruelty statutes already contain provisions aimed at addressing various aspects of criminality demonstrated by animal abuse (Nurse 2011, Schaffner 2011) and inherent in animal harm. As a result, an effective international animal cruelty treaty is likely more achievable than an animal rights one, a legal measure which has historically been resisted in part due to conflicting perspectives on the need for legal animal rights and how they might be achieved (Wise 2000, Rollin 2006). But legal animal rights have also been resisted on grounds of the likely impact that legal animal rights would have on private and commercial rights which rely on humans retaining animal property rights (Wise 2000). However international animal cruelty laws could by extension incorporate other aspects of animal harm while leaving scope for individual states to reflect appropriate cultural and commercial requirements within national laws. The derogation procedures operated by the European Union as part of its legal operating procedures that allow states to negotiate opt-outs from having to apply certain legislative measures, and the system of state legislatures, which allow for local/regional legislation, in the United States provide appropriate models. These types of procedure allow states a ‘margin of appreciation’ in the implementation of legislation where it is necessary to make changes or not fully apply legislation where this is necessary to fit state’s circumstances.
Despite the lack of general international protection for animals, and thus the lack of a coherent international standard for animal harm, there are a number of provisions in international law relating to the conservation, management and trade in wildlife. CITES (mentioned earlier) regulates the trade in endangered species of wildlife by creating different levels of protection for wildlife in trade and introduces a wildlife trade tariff system which clarifies the legality of trading in specific wildlife and creates a framework for regulatory enforcement. The convention:
• Prohibits international commercial trade in the most endangered or vulnerable species which are listed in Appendix 1 of CITES.
• Allows commercial trade in species listed in Appendix II of CITES subject to the granting of export permits or re-export permits.
• Allows commercial trade in species listed in Appendix III of CITES subject to granting of export permits, re-export permits or possession and inspection of the required certificates of origin.
Criticisms of CITES include the claim that it allows trade in wildlife despite the evidence that wildlife trading is not sustainable and that animal harm is intrinsic to some aspects of the wildlife trade (Zimmerman 2003). There is also evidence that a vast illegal trade exists alongside the legal one (Lowther et al. 2002) and, as Chapter 8 discusses, criminality causing animal harm has developed within the CITES system. The wildlife trade is also plagued by weak enforcement when compared to other forms of transnational crime, making it an attractive diversification for organized crime seeking to maximize existing trade routes and criminal networks, and to develop new revenue streams (Roberts et al. 2001, Nurse 2011). CITES does, however, attempt to control the wildlife trade and its schedules and regulatory regime allow for identification of animal harm where non-compliance with the relevant CITES legislation occurs.
At a European level there are also treaties which provide general protection for animals, protection for animals during international transport and when transported for slaughter, and protection for animals kept as farm animals and as companion animals. For example the 1979 Convention on the Conservation of European Wildlife and Natural Habitats (the Bern Convention 1979) requires all Council of Europe states to promote national policies and enact legislation that conserves wildlife and wild animals. Article 7 of the convention requires the regulation of wildlife exploitation while Article 8 specifically prohibits ‘indiscriminate’ means of capturing and killing wildlife. The convention thus provides a Europe-wide legislative framework for monitoring and eliminating certain aspects of animal harm and requires national legislation across Europe that prevents indiscriminate animal killing. There are also regulations governing the use of animals in scientific procedures in the form of Directive 2010/63/EU on animal experimentation. The focus of these international efforts is primarily to provide minimum standards for animal welfare and to prevent practices that might amount to animal cruelty. These principles are developed further in national laws.
National Animal Protection Laws
The lack of coherent international protection for animals leaves animal protection primarily within the remit of national legislatures. A majority of states have adopted laws for dealing with animal issues although the perennial problem of animal law enforcement is lack of resources or lack of political will to provide for effective enforcement in those areas where human and animal interests conflict. Significantly, the lack of international legislation means that there is no international standard by which the effectiveness of animal legislation can be judged, although the ethical and theoretical frameworks of the animal rights, species justice and utilitarianism schools provide a benchmark for national legislation. A central issue is whether national legislation provides for effective protection for wild animals and prevents suffering and cruelty to companion animals or at least provides for an effective law enforcement and judicial response when animal cruelty occurs. However the content of law-making on animal issues is determined partly by whether a country is a common law jurisdiction or a private law one. Wise (2000) argues that the mechanistic application of precedent and rules in some legal systems means that legal personhood for animals remains unlikely, while the consideration of contemporary social context applied by the common law means that it is possible for common law judges to interpret legislation in a way that actively protects animals. While most common law judges are precedent judges, changes in legislation and policy to incorporate contemporary perspectives on animal protection and animal welfare have had the effect, in the European Union at least, of providing for legislation that gives limited rights to animals in the sense of requiring that their needs must be actively considered and that a failure to do so which causes either physical or psychological distress constitutes unlawful harm. This contrasts slightly with the historical focus on causing unnecessary suffering according to a subjective notion of what constitutes necessary suffering to an animal. Thus, a wider conception of animal harm is beginning to emerge within legislation and provides an additional level of legal protection.