Whether Or Not to Prosecute Animal Cruelty

by Sherry F. Colb

In my Verdict column for this week, I discuss a newly-signed New York State bill that will criminalize the tattooing and piercing of one's companion animals (with some exceptions).  In the column, I suggest that although the law appears to be well-motivated, it exposes the deep contradiction between the intention to protect nonhuman animals from unnecessary violence, on one hand, and the practices in which most of the population engages (and which the law thoroughly supports and endorses), on the other.  The question for this post is what one ought to do, given a legal regime that arbitrarily singles out a small proportion of cruelty against animals to criminalize.  Should a conscientious prosecutor simply refuse to pursue animal cruelty at all, or should she prosecute offenders, notwithstanding the fact that they are--in their conduct--doing nothing worse than what the overwhelming majority of the population does when it lawfully participates in utterly unnecessary cruelty to animals through individual, daily decisions to consume animal products?

I am quite torn about this question.  Hypocrisy, to my mind, is a serious problem.  If the law endorses animal cruelty, as it does, in so many zones, and if most of the population funds animal cruelty, as it does, then who are we, "the people," to be prosecuting and locking up those individuals who happen to violate a law that identifies and stigmatizes some small sphere of animal cruelty which society has arbitrarily decided it will not tolerate?  As Gary Francione eloquently said in an editorial at the time, "We're all Michael Vick," and it was accordingly problematic to send Vick to prison and to condemn him, as many have, for engaging in a morally-indistinguishable version of what everyone else is doing.

Indeed, it may even be racist to single out Michael Vick for condemnation, because minority communities are more likely to participate in dog-fighting (or cock-fighting), while white communities are satisfied to participate in socially acceptable animal cruelty against pigs (barbecues, bacon, ham) and chickens (slaughtered at 7 weeks old for "chicken" or, in the case of male rooster chicks from laying hens, ground alive or gassed to death at one-day old) in the poultry and egg industries, respectively, instead of in the cock-fighting industry.  I made an argument along these lines about a different minority practice, Kaporos using chickens among Ultra-Orthodox Jewish communities.

At the same time, I have a competing impulse.  First, the people who engage in the animal cruelty prohibited by law may be (and probably are) doing so in addition to rather than instead of engaging in the cruelty in which the rest of the population engages.  That is, a person who organizes or attends a dog-fight is almost certainly not otherwise a vegan, so he participates in all of the same animal abuse in which the majority of the population participates as well as in dog fighting.  For this reason, it is perhaps appropriate that he receive harsher treatment (by the law and by social stigma) than others.

One problem with this argument, however, is that in any individual case, we might have someone who is withdrawing his participation from other forms of animal abuse, but the law that singles out what he happens to be doing would not take that fact into account.  The law, not surprisingly, ignores its own arbitrariness and hypocrisy and would thus ignore the fact that in a particular case, the person who goes to dog fights is also consuming a strictly plant-based diet and might therefore be responsible for far less violence against animals than the non-vegan who prosecutes him (or the society that urges his prosecution).

A second argument for prosecuting the dog-fighter or other participant in illegal animal cruelty, notwithstanding the arbitrariness of the law, is that when a particular kind of violence and injustice is socially accepted, it makes it more difficult for people to fully absorb (and act upon) the moral imperative to stop engaging in that violence and injustice.  This is why, for example, we would undoubtedly judge a person who today kept a human slave in his home more harshly than we judge people who lived in the United States in the late Eighteenth and early Nineteenth Century, such as Thomas Jefferson, who owned slaves.  If, for example, it turned out that Bill Clinton or George W. Bush secretly purchased slaves while serving as President of the United States, it would be difficult to say nice things about their respective presidencies, given this conduct.  So long as a form of violent injustice is legally (and socially) accepted, by contrast, the individual practitioners of the injustice may perhaps bear somewhat less personal responsibility for engaging in the practice, because they are simply following the human herd.  Once a particular kind of animal abuse has become illegal, then at least that act is arguably no longer a product of moral blindness, because society has made its wishes known.  That arguably makes the conduct worse or, at least, more culpable for being illegal.

A third argument for prosecuting people who violate criminal laws against animal cruelty, even as their fellow citizens engage in equally horrific (and worse) cruelty on a daily basis, is that the criminal law is in part about identifying bad characters.  People who engage in daily cruelty against animals by consuming the flesh and secretions of tortured living beings, given the realities of today, are not necessarily "bad" people, any more than were the people who participated in human slavery during the many years in which people thought of slavery as a normal and proper institution to embrace in one's life were necessarily all "bad" people.  Once an injustice becomes criminal, however, even if what is criminal is only a tiny segment of a far larger injustice, it takes a particular sort of person to commit that injustice.  The person who burns his dog with a torch, then, is likely to be a bad person, in a way that a different person who consumes the results of the equally torturous treatment of pigs is not as likely to be a bad person.  If, as I have suggested here, the purpose of the criminal law and punishment is to identify the "bad" sorts of people to remove from society, then the violation of an express statute prohibiting an act as "animal cruelty" might help society identify people who really are bad in addition to having done something very wrong to an animal (the latter of which would not distinguish him from 98% of the population).

In response to these two arguments for prosecution, I would note that people are complicated characters and that someone can be very kind and generous in one domain while being very cruel and heartless in another (this is the banality of evil).  It is also the case that someone can go from being cruel to being kinder, and the notion that some people (who commit legally prohibited cruelty against animals) are, beyond redemption, evil characters runs contrary to my optimism about the possibility of change.  I would therefore be reluctant to say, for example, that Michael Vick is permanently and necessarily a "bad" person in a way that his teammate, who consumes animal corpses and secretions every day and thereby funds hideous violence against animals, is simply not.

A final argument for prosecuting animal cruelty is that the criminal law is a way of affirming that our society continues to hold certain values sacred, even if we do not remotely live up to those values.  To decide to refrain from prosecuting all animal cruelty cases--even if the grounds are the utter arbitrariness of the criminal law in this regard--would be, perhaps inadvertently, to send the message that there is no animal cruelty at all that triggers society's outrage at this time.  This message may be too depressing to tolerate, and it could have the harmful effect of further entrenching society's existing willingness to tolerate all manner of violence against animals.  In a sense, then, hypocrisy here--though sickening and worthy of serious critique--is the (tiny) homage that vice pays to virtue, and it may be important to support that homage, however inadequate and morally arbitrary.

This last argument is, I think, what keeps me from wholeheartedly endorsing the withdrawal of the criminal justice system from issues of violence against animals, though I tend not to support single-issue anti-cruelty initiatives.  I continue to believe that the violence that is legally prohibited is morally equivalent to (and no worse than) the violence that is legally tolerated, endorsed, and funded by the vast majority of people.  Yet I want people to hold onto the small (and inadequately developed) instinct they have that one should not be cruel to animals, an instinct that I hope will flower with exposure to the truth about the animals whose flesh and secretions most of us unthinkingly consume.  I want, in other words, to be able to say "Remember how you supported that law against animal cruelty and were glad that XYZ was prosecuted for torturing a cat?  Well, here's some food for thought:  your justifiable view of XYZ and animal cruelty has other implications for how we live..."  If there are no laws against animal cruelty and no criminal prosecutions of violence against animals, it might be considerably more difficult to begin that important conversation.