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Washington State Court Defines Pain in Cruelty Case

Court determines minimal level of pain necessary to convict

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.

Landmark Decision
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.

"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.

Differing View
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.' "

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.

Case Background
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.

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.

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

"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."

Expected veterinary impact
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.

"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.

Understanding the LinkŪ between animal abuse and family violence

What is the Link?

A correlation between animal abuse, family violence, and other forms of community violence has been established. Child and animal protection professionals have recognized this Link, noting that abuse of both children and animals is connected in a self-perpetuating cycle of violence. When animals in a home are abused or neglected, it is a warning sign that others in the household may not be safe. In addition, children who witness animal abuse are at a greater risk of becoming abusers themselves.

How serious is it?

A survey of pet-owning families with substantiated child abuse and neglect found that animals were abused in 88% of homes where child physical abuse was present (DeViney, Dickert, & Lockwood, 1983). A study of women seeking shelter at a safe house showed that 71% of those having pets affirmed that their partner had threatened, hurt, or killed their companion animals, and 32% of mothers reported that their children had hurt or killed their pets (Ascione, 1998). Still another study showed that violent offenders incarcerated in a maximum-security prison were significantly more likely than nonviolent offenders to have committed childhood acts of cruelty toward pets (Merz-Perez, Heide, & Silverman, 2001).

What’s being done?

In many communities, human services, animal services, and law enforcement agencies are sharing resources and expertise to address violence. Professionals are beginning to engage in cross-training and cross-reporting through interagency partnerships, and humane societies are teaming with domestic violence shelters to provide emergency shelter for pets of domestic violence victims.

In addition, some states have strengthened their animalcruelty legislation and taken other measures to address the Link. These state-level actions permit earlier intervention and send a clear message that all forms of violence are taken seriously. For example:

  • There are now felony-level penalties for animal cruelty in nearly all states.
  • Several states require veterinarians to report suspected animal abuse and offer veterinarians who report cruelty immunity from civil and criminal liability.
  • Some states require animal control officers to report suspected child abuse or neglect and receive training in recognizing and reporting child abuse and neglect.
  • A few states permit child and adult protection workers to report suspected animal abuse or receive training on identifying and reporting animal cruelty, abuse, and neglect.
  • Nearly half the states call for psychological counseling for individuals convicted of animal cruelty.

Where does American Humane stand?

American Humane has been working to protect children and animals since 1877. For more than a decade, American Humane has been educating both the general public and professionals about the Link between violence to people and animals by:

  • Facilitating workshops to educate the public and build collaboration among human service, animal protection, public safety, and law enforcement professionals;
  • Administering the National Resource Center on the LinkŪ, providing professional training at national conferences, and publishing resources and training guides;
  • Helping pass animal cruelty legislation, drafting crossreporting legislation, and testifying at both state and national levels; and
  • Contributing to the understanding of the Link through research on animal cruelty, its treatment in the criminal justice system, and detection by veterinarians.

American Humane asserts that the Link must be addressed and the following provisions must be implemented:

  • Cross-training and cross-reporting among law enforcement officers, humane investigators, veterinarians, health professionals, domestic violence advocates, and child protection workers;
  • Training and continuing education about the Link for judges and prosecutors;
  • Model legislation for cross-reporting and cross-reporting standards;
  • Systematic tracking of national animal abuse data;
  • Expanded research about the Link, including evaluation of prevention and intervention approaches;
  • Inclusion of animal-focused violence in standard assessments and intake forms for child protective services, mental health, and domestic violence workers; and
  • Community partnerships to respond to family violence and educate the public about taking all acts of violence seriously.


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