The Nature of Animal Harm

Chapter 2
The Nature of Animal Harm

This chapter seeks to define animal harm as discussed throughout the remainder of this book. While animal rights and species justice perspectives generally consider animal harm to mean animal abuse and suffering (White 2008) this book defines animal harm as broadly falling into two categories: animal abuse or cruelty, and wildlife crime. Rather than considering these two aspects of animal harm as being distinctly separate, the book takes a holistic approach to the concept of animal harm which incorporates these two separate aspects of animal activity. While the extent to which animal harm is considered part of the criminal law rather than a civil offence varies between acts and from jurisdiction to jurisdiction, this book’s focus is on both elements of animal harm as criminal activity. As a result the term animal harm as used throughout this book encompasses a wide remit of animal abuse, cruelty and welfare offences involving companion animals, and the unlawful hunting and trapping of wildlife, the unlawful taking of animals from the wild and the commercial killing of protected animals and wildlife. Where the term is used, it refers to animal harm in this broad sense, although references are made to the individual aspects of animal abuse or cruelty or wildlife crime when discussing specific aspects of animal harm.

Beirne (1999) argues that animal cruelty should be drawn into the realm of criminological inquiry as it has importance on multiple levels:

1. animal cruelty may signify other actual or potential interpersonal violence;

2. animal cruelty is, in many forms, prohibited by criminal law;

3. violence against animals is part of the utilitarian calculus on the minimization of pain and suffering (the public good);

4. animal cruelty is a violation of rights; and

5. violence against animals is one among several forms of oppression that contribute, as a whole, to a violent society.

While the first two of Beirne’s points are crucial to this book’s focus on animal harm as criminality under current law, analysis of animal harm and its implications need to go beyond discussions of cruelty and animal rights to also incorporate wider criminal justice perspectives. Wildlife crime, considered to be one of the most prevalent and lucrative forms of crime after the trade in drugs (South and Wyatt 2011 and see also Chapter 8), does not always involve cruelty and can involve humane methods of trapping and utilizing wildlife, which, while being harmful to animals in one sense (the ‘harm’ of being forcibly removed from the wild, sometimes in a manner that causes temporary injury, and then being reduced into captivity), would not constitute cruelty by most legal definitions. Yet wildlife crime is frequently absent from green criminology’s discussions of species justice and is arguably absent from South’s initial discussions of green issues as encompassing ‘the environment, animal rights and the symbiosis between human societies and ecological systems’ (1998: 212).

While it is acknowledged that green criminology has developed considerably in the last 15 years or so to encompass a broader definition of species justice, the ‘animals’ aspects of green criminology discourse is still dominated by discussions of animal rights, legal personhood, and animal abuse and cruelty. Only a few scholars discuss wider definitions of animal harm in any detail and pay attention to issues such as wildlife crime (see for example, Beirne 1999, 2009, Nurse 2003, 2011, Wyatt 2009, 2011). Fewer still discuss wider notions of animal harm as being separate from animal rights and consider the importance of animal harm as a criminal justice issue outside of rights talk and the justification for legal rights for animals. Yet legal protection for animals and law enforcement and criminal justice action to address animal harm is possible within current legislative frameworks. Thus, animal rights and animal harm need not be inextricably linked, and from a criminological perspective it is possible to treat animal harm as a mainstream crime problem without necessarily pursuing an animal rights agenda. A new definition of animal harm as part of the ecological justice or species justice discourse is therefore needed to encompass South’s (1998) notion of human–ecological symbiosis, to reflect legislative developments and to also recognize developments in the field of human–animal studies (Shapiro 2008) that have moved beyond potentially limiting discussions framed around animal rights.

As Chapter 1 identifies, much of the harm inflicted on animals is currently legal, whether as part of legitimate food production, the fashion industry, or permissible pest control (of varying types). Thus, criminologists, animal activists and policy-makers face challenges in precisely defining animal abuse and cruelty (Agnew 1998) and distinguishing between the lawful and unlawful. As a result, a variety of animal harm activities that would undoubtedly satisfy a moral or ethical definition of cruelty would not constitute unlawful animal abuse. While that does not diminish their importance either as areas of study or areas where policy should be changed, traditional criminology’s focus on examining the workings of the existing criminal justice system and, in particular, how it can be improved is instructive in showing how green criminology might develop its species justice discourse. Applying both mainstream and green criminological perspectives to animal harm provides a means through which an understanding of this aspect of criminal behaviour can be assessed and it is in this regard that this book examines the issue of animal harm and animal offence criminality.

This chapter provides an overview of the type of illegal activity involved in animal harm and discussed in depth within the following chapters. It clarifies what constitutes unlawful animal abuse (cruelty) and wildlife crime, distinguishing between morally unacceptable and legally permissible behaviours in order to clarify this book’s animal harm definition.

Defining Animal Abuse Offences

The legalistic definition of animal cruelty informs the distinction between animal abuse and wildlife crime. Animal abuse incorporates cruelty and animal welfare offences, primarily directed at domestic animals (for convenience sake throughout this chapter the term domestic animals will be used throughout this chapter to refer to both companion animals and farm animals) rather than animals living in a wild or semi-wild state (including stray and feral animals). Animal abuse may be either direct or indirect but the concept of causing ‘unnecessary suffering’ is central to legal definitions of animal abuse. This concept permeates much anti-cruelty law and defines this aspect of animal harm as primarily being abuse or cruelty deliberately inflicted on animals. However beyond the theoretical and ethical questions it raises about what constitutes ‘necessary’ and avoidable animal suffering (Linzey 2009) it also raises questions about the extent to which inflicting animal suffering is intentional, accidental or an integral part of some activities, even where steps might be taken to minimize animal harm.

As Chapter 1 indicates, anti-cruelty statutes generally attempt to define animal abuse, specifying which activities are prohibited and providing guidance to animal owners, investigators and prosecutors alike by explicitly categorizing animal abuse activities by including descriptors and definitions within legislation. There is, however, considerable variation even between different regions of the United States where state anti-cruelty acts adopt different definitions reflecting legislators’ preferences or intentions towards animal protection. For example, Alaska’s Anti-Cruelty Statute 11.61.140 defines animal cruelty as when a person ‘knowingly inflict[s] severe physical pain or suffering; or with criminal negligence fails to care for an animal and causes its death or severe pain or prolonged suffering’, while Massachusetts’ General Laws Chapter 272–77 more expansively specifies cruelty to animals as when a person:

overdrives, overloads, drives when overloaded, overworks, tortures, torments, deprives of necessary sustenance, cruelly beats, mutilates or kills an animal, or causes or procures such; and whoever uses in a cruel or inhuman manner in a race, game, or contest, or in training therefore, as lure or bait a live animal; inflicts unnecessary cruelty upon it, or unnecessarily fails to provide it with proper food, drink, shelter, sanitary environment, or protection from the weather, or cruelly drives or works it when unfit for labor, or wilfully abandons it, or carries it or causes it to be carried in or upon a vehicle, or otherwise, in an unnecessarily cruel or inhuman; or knowingly and wilfully authorizes or permits it to be subjected to unnecessary torture, suffering or cruelty of any kind.

In addition, Massachusetts has separate provisions relating to the malicious killing of an animal, which by implication does not include the above acts. In this case the law specifically makes it an offence where any person ‘wilfully and maliciously kills, maims or disfigures any horse, cattle or other animal of another person, or wilfully and maliciously administers or exposes poison with intent that it shall be taken or swallowed by any such animal’ (Massachusetts’ Gen Laws Ch. 266-112). Other US states also distinguish between ‘ordinary’ animal abuse and malicious or wanton animal abuse which implies a greater level of severity in the abuse.

These and comparable definitions across anti-cruelty legislation identify deliberate physical harm as the essential element in animal abuse as defined by legislation. Schaffner comments that US anti-cruelty laws are primarily designed to ‘protect animals from the intentional and gratuitous infliction of pain and suffering at the hands of humans’ (2011: 22). Phrases like ‘wilfully and maliciously’, ‘knowingly and recklessly’ or ‘intentionally’ are commonly found in US and UK legislation, reflecting legislators’ focus on acts of violence towards animals which has also dominated criminological attention in species justice discourse. This reflects theoretical debates about both the exercise of power over animals by man (Rollin 2006, Linzey 2009) and animal rights discourse concerning not only animals’ rights not to suffer pain, but also the moral wrong of deliberate exploitation of animals by humans. Violent exploitation of animals and their status as defenceless victims are key to Conboy-Hill’s definition of animal abuse as ‘the deliberate or neglectful harm of animals which can include beating, starvation, slashing with knives, sodomy, setting on fire, decapitation, skinning alive amongst other actions’ (2000: 1) and criminology’s focus on deliberate, violent animal abuse perhaps reflects a focus on animal cruelty as an aspect of violent crime as a key criminological and social concern (Wise 2000, White 2008, Linzey 2009). However, a broader definition of animal abuse needs to also incorporate non-physical abuse and other non-violent yet harmful acts which constitute abuse. Ascione’s definition identified animal abuse and cruelty as being ‘socially unacceptable behaviour that intentionally causes unnecessary pain, suffering, or distress to and/or death of an animal’ (1993: 228). While this definition importantly incorporates the concept of ‘distress’ which, broadly construed, includes non-physical harm, its focus is still on intentional animal abuse which this chapter contends is only a limited part of animal harm, albeit an important one. Of equal importance are the unintentional or incidental animal harm activities that are, nevertheless, unlawful and require criminological attention. Neglect causing animal harm still has the potential to cause significant injury to animals and may be linked to other aspects of criminality that are worthy of attention.

Critical Perspectives on Defining Animal Abuse Activities

Agnew identified that animal cruelty occurs across a wide spectrum of activities ‘including factory farming, animal experimentation, hunting and trapping, and the use of animals for entertainment purposes’ (1998: 179). In principle, many of these activities, although objectionable, to some are ostensibly legal, although they may both directly or indirectly incorporate animal cruelty as operational practices. One could, for example, argue that factory farming for the fur and meat industries is inherently cruel because any action that results in the unnecessary death of an animal to serve human ends constitutes animal abuse. But within the confines of this book’s focus on unlawful rather than immoral animal harm it is not the ends but rather the means, and compliance with the legalistic perspective on animal harm, which determines whether an action amounts to animal harm. Although Agnew’s list of activities (above) contains several that are lawful dependent on the circumstances, they also link to activities that are inherently unlawful in that illegal animal abuse is an integral part of these activities even when the industry itself seeks to be law-abiding. To take another part of Agnew’s assessment, animal abuse is most likely when individuals:

1. are unaware of the impact or consequences of their behaviour on animals;

2. do not consider their behaviour to be wrong; and

3. benefit from their abusive behaviour. (Agnew 1998: 182)

To this list I would add a fourth consideration, that of:

4. industry specific or cultural norms being such that even where individuals are fully aware of the impact or consequence of their behaviour on animals, cultural or institutional acceptance of animal harm exists such that any condemnation of animal harm is an externality.

Animal abuse thus includes inflicting cruelty either directly or indirectly, or failing to comply with statutory animal welfare standards such that an animal incurs harm, injury, suffering or distress, either by human act or omission. Discussion of each of Agnew’s original list illustrates this qualification.

Factory Farming

In many jurisdictions, the factory farming industry is regulated by animal welfare legislation which specifies that humane standards of animal welfare should be observed and implemented wherever possible. Yet animal harm is an integral part of both the fur and meat industries where animals are routinely kept in inhumane conditions that do not effectively cater for their needs (PETA website 2012). While the end product of both industries is inevitably the killing of animals, inhumane or ineffective methods of killing are routinely found in inspections (Lawrence 2004) and constitute normal practice in the unregulated, poorly regulated or black market sections of each industry (Schlosser 2002). Strain (Merton 1968) and control theories (Hirschi 1969) explain the prevalence of inhumane killing methods and ineffective animal husbandry in industries where the desire for profit and the lack or effective regulation create environments where animal abuse is not only possible but becomes operationally acceptable as a means of maximizing profits (Paternoster and Simpson 1996). Green criminology and environmental justice discourse shows that where compliance with regulations constitutes an unacceptably high business expense, companies will seek to evade or ignore these costs (Situ and Emmons 2000, Walters 2007, Hinteregger 2008). In addition, poorly paid workers at the socio-economic ‘lower’ end of the fur and meat trades often lack either the training or motivation to effectively implement good standards of animal welfare as doing so may make their jobs considerably more difficult or indeed place them in the position of lacking sufficient skills to carry out those jobs. In the fashion skin trade for example People for the Ethical Treatment of Animals (PETA) found evidence of animals being skinned while still alive (2011) with poorly paid producers lacking knowledge of humane animal killing methods (discussed further in Chapter 8). The external condemnation of pressure groups like PETA and national and regional cruelty prevention agencies, while potentially having some effect by way of mobilizing public opinion, is largely ineffective against financial imperatives within the food and fur industries.

Animal Experimentation

Animal experimentation, perhaps by its very nature, constitutes animal abuse in a species justice sense as it involves deliberately inflicting harm on animals. Yet again, this form of animal cruelty is lawful in many countries; theoretically being controlled by legislation that specifies which activities are permissible and which are prohibited. Generally animals can be experimented on by recognized scientific bodies or those holding the required permits in accordance with local regulatory requirements. Experimentation is subject to controls contained within legislation which may include codes of practice, outlining the relevant conditions to be followed, or specifying that animal experimentation facilities are subject to inspection by regulatory authorities. The acceptability of such activities is determined by the wording of current law in a particular jurisdiction, social habits and social and economic circumstances. A specific example of this is provided for in the UK’s anti-vivisection case law. In 1895 in Re Foveaux [1895], 2 Chancery, 501, the court of appeal accepted an anti-vivisection trust as being charitable because its aims were considered to be of public benefit. However, in 1948 in National Anti-Vivisection Society v. IRC [1948] Ch 31, 47, the House of Lords denied the anti-vivisection cause charitable status with one judge, Lord Wright, indicating that the test of public benefit could vary from generation to generation as the law successively grew more ‘tolerant’. This decision clarified that while the benefits to society from an activity like vivisection or testing on animals might be contested on moral grounds, the benefits should be interpreted in light of contemporary social knowledge of the practice. If, for example, a government allows testing on animals due to the ‘possible’ medical benefits of doing so, an anti-cruelty charity seeking to outlaw the practice may be in conflict with this perceived benefit and their efforts ignored. Thus practices like toxicology testing on animals, vivisection and genetic testing constitute animal abuse when they are carried out unlawfully (i.e. not in accordance with any required regulation and safeguards or where the testing is an unlicensed activity) but although such activities may involve pain and suffering, they would not constitute illegal animal abuse if conducted in accordance with current legislation. Regan (2007: 121) argues that those who argue for the benefits of animal experimentation ‘conveniently ignore the hundreds of millions of deaths and the uncounted illnesses and disabilities that are attributable to reliance on the “animal model” in research’ and this definition does not comment on the acceptability of animal experimentation or the suffering it causes. The ethical considerations of animal experimentation are, however, outside of the legalistic definition which concerns itself primarily with the lawfulness of an activity and whether public policy has permitted the activity to be positively legislated for. Comparing the experimentation on the seriously mentally retarded children of Willowbrook State Mental Hospital to experimentation on animals, Regan noted that poor standards of treatment and welfare are sometimes ‘justified’ on the basis that the victims are not fully aware and thus lack possession of and capability to exercise the appropriate rights. However in his comparison of the human and animal experiments, Regan also suggested that ‘logically we cannot claim that harms done to the children violate their rights, but the harms done to these animals do not’ (2007).

Hunting and Trapping

Hunting and trapping activities are discussed in further detail in Chapter 5 but raise specific concerns both about the animal abuse involved in taking animals from the wild and the level of criminality inherent in hunting and trapping activities. While legal hunting exists and is generally regulated through permit systems and oversight by government environmental or conservation departments there are concerns about the extent of illegal animal abuse associated with hunting. Webster (2000) argued that hunted animals (i.e. those chased by mounted hunts and packs of dogs) suffer stress of a kind that would meet the definition of illegal animal abuse by causing unnecessary suffering which is contained in UK legislation and in many US anti-cruelty statutes. While this is hotly contested by hunt supporters (All Party Parliamentary Middle Way Group and Veterinary Association for Wildlife Management 2009), persistent evidence is produced that hunted animals do not always die in humane ways and that considerable unnecessary suffering can be involved. Fox et al. (2005) concluded that many animals are merely wounded in shooting incidents and the UK’s All Party Parliamentary Middle Way Group and Veterinary Association for Wildlife Management also concluded that while a direct hit by a marksman would cause instantaneous death ‘shooting is intrinsically fallible, even if undertaken properly’. This is because inexpert or opportunistic shots may cause protracted suffering by wounding (2009). In addition, illegal practices are inextricably linked to the more commercialized forms of hunting such that illegal persecution of protected birds of prey has consistently been proved to linked to the shooting industry in the UK and illegal killing of seals is linked to the fisheries industry (Wilson et al. 2007). In addition Eliason (2003) found evidence that US hunting and angling regulations are almost routinely ignored by hunters who challenge their legitimacy. Other studies have found that rural hunting communities consider hunting and killing of wildlife to be their right irrespective of legislation (Bristow 1982, Pash 1986), and enjoy the challenge of outwitting enforcement agencies who they not only see as outsiders seeking to impose controls on their way of life, but actively engage with as the enemy (Forsyth and Marckesc 1993). The trapping methods used in hunting are also prone to abuse and contribute to animal cruelty because their effectiveness is frequently not monitored. While a number of humane traps are now available for hunting and trapping purposes, animals are still left to die when traps maim rather than kill outright and non-target species are often killed unlawfully when indiscriminate methods of hunting are used (House of Commons 2012).

Animals Used for Entertainment

The use of animals for entertainment encompasses a range of activities from the use of animals in circuses and zoos, through to the use of animals in television advertisements. Although both lawful and unlawful forms of animal use in entertainment exist, animal abuse has been associated with both, identifying animal harm as an integral aspect of different forms of animal use in entertainment.

In the circus and zoo world, animal abuse has been identified as integral to the training and care methods used. In its 1996–98 survey of UK circuses, Animal Defenders International (ADI) found that ‘day-to-day violence towards animals in the circus industry is both accepted, and commonplace. Violence was used both during training sessions and to move animals about whilst feeding’ (2003: 3). In its 2003 and 2005 investigation of animals in Portugese circuses, ADI found animals enduring ‘severe confinement in deprived and unnatural environments, a lack of enrichment, inadequate diets, and physical abuse. We also noted animals displaying disturbed behaviour – such as pointless repetitive movements – which indicate severe stress’ (2005: 3). The abuse of animals in circuses and zoos is linked to their status as commodities rather than consideration of animals as performers or participants. Melfi (2009) identified that in practice animal welfare standards are based on ‘myth and tradition’ rather than being scientifically validated. As a result, despite legislation specifying the need for good standards of animal welfare, the actual standards employed in the animal entertainment industry will be determined by practical considerations, not least of all the cost-benefit analysis involved in employing/implementing appropriate standards of animal welfare. Draper (2011) identified the very nature of the circus world as being an obstacle to ensuring good standards of welfare given that ‘circuses move site every one or two weeks, and each site may differ radically in size, amenities and infrastructure’ (2011: 26). Thus the facilities available to ensure good animal welfare standards are not consistently available and, in addition, ingrained practices may influence whether animal abuse occurs. The ADI research concluded that violence towards animals was used as a legitimized form of control across the circus world. Thus not only is severe confinement an issue with animals only being released from confinement in order to train and perform (ADI 2005) but in addition, ‘violence in the training and control of animals is a regular occurrence and part of the circus culture’ (2005: 9) so that it is used as an incentive for animals to learn and perform tricks, as a method of punishment when mistakes are made and as a tool to enforce obedience. The lack of any regular inspection regime is hampered by the travelling nature of the circus although poor standards of animal welfare and use of cruelty as an obedience and training tool are also found in the zoo and wildlife park industries (Green 1999). While a number of countries have now banned the use of animals in circuses, including Austria and Costa Rica, Singapore (India has a prohibition limited to some specific species and there are bans in some municipal jurisdictions in Australia and New Zealand) in those countries where they continue to be used, concerns are frequently raised about animal cruelty. Concerns also remain about the use of cruelty and negative reinforcement through force to train animals used in television advertisements (although some monitoring provisions exist in the United States and UK where NGOs monitor the treatment of animals used in entertainment).1