Wednesday, January 21, 2015

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.


Unknown said...

At times like these I am reminded of a key piece of advice: let not the perfect be the enemy of the good. Some prosecution may be all We can do but it is better than none at all at this point in time.

Hashim said...

It seems to me that animal cruelty for entertainment purposes is morally worse than animal cruelty for nutritional purposes, *even accepting your premise* that the latter is immoral.

Nutrition is a morally compelling interest, so your moral objection is simply that animal cruelty is not necessary to satisfy that interest because there are alternative means of nutrition. (Presumably you don't think humans are all morally compelled to starve to death if in fact the *only* means of sustenance required killing animals.)

By contrast, mere entertainment isn't really a morally compelling interest at all. Even if there were no other means of entertaining ourselves, virtually everyone would agree that it'd still be morally unacceptable to torture animals for mere amusement, rather than simply remaining bored. (Set aside for now the debate over whether things like horse racing constitute "torture".)

This is a critical moral distinction. It is morally worse to engage in immoral conduct to satisfy a trivial end than to engage in immoral conduct to satisfy a compelling end, albeit one that also could have been satisfied in some other moral way.

Michael C. Dorf said...

Hash: Your view rests on a (very commonly believed) fallacy--namely that because nutrition is necessary for survival, whereas entertainment is not, acts undertaken for nutrition are more justifiable than acts undertaken for entertainment.

For one thing, much eating by humans in the First World could be better characterized as serving entertainment than nutrition purposes. Indeed, consumption of animal foods (and highly processed non-animal foods) is often inimical to human health, and thus impedes rather than serves long-term survival.

More fundamentally, the claim rests on the fallacy that because it is necessary to eat to survive, then any act of eating is somehow necessary to survive. Was Jeffrey Dahmer less blameworthy than Ted Bundy because Dahmer killed people for the purpose of eating them (nutrition!) than for the purpose of entertaining himself? Assume for these purposes that Dahmer killed people to eat them because he REALLY likes the taste and texture of human flesh, finding non-human substitutes just not quite the same. Is that any more noble a purpose than that some other killer REALLY likes to watch human gladitorial combat to the death, finding other sports just not adequate to satisfy his entertainment cravings?

There is a better argument that gestures in the direction you want to go, which our colleague Steve Shiffrin makes in a forthcoming book (in discussing the Stevens case), and which relates to some of the social acceptance points Sherry makes here--namely, that in current circumstances, people who eat animal foods that are the result of torture of animals do so DESPITE the torture, whereas people who enjoy crush videos, dog fights, etc., often do so BECAUSE they enjoy the suffering. Sadism, Shiffrin says, is worse than knowingly causing pain. So in current circumstances, the latter are worse people, according to Shiffrin's argument. But that's not because we can fit the unnecessary consumption of animal products into a general category (eating) that is essential to survival.

Joe said...

The essay seems to be somewhat scornful of what is seen a fairly trivial protection to animals given worse practices that are supported by the mainstream.

That's fine. But, it's a common thing, and is applied to loads of things. People take part in various things that are bad, but draw lines & stop doing specific things that might in some fashion seem trivial. I'm for doing what we can and pushing for more here.

I don't find the issue quite as complicated as these remarks appears to argue. Yes, selectively addressing a large problem can seem arbitrary. We should point that out. But, we work with what we have and build off it. We are not all pure at heart about good. This is true about veganism, environmental issues and any number of things.

Finally, if it actually was necessary for "nutrition," yes, cruelty would be more defensible than for entertainment purposes (e.g., carriage rides in NYC). This might be true in certain communities. It isn't here. There is a range of nutritious foods, putting aside at best limited special needs.

Joe said...

ETA: To be careful, even when animal use was more necessary for nutrition, it was much less so to be 'cruel' about it. Various native societies were careful to show some respect to the animals they used for food and other needs.

Hashim said...


I'm not saying that any act of eating is necessary to survive. I'm saying that an act of cruelty taken *for the purpose of nutrition* -- even if not actually necessary to nutrition -- is morally less culpable than an equivalent act of cruelty taken for the purpose of mere entertainment, since at least the end is morally compelling, even if the means are not. (This may just be a different way of articulating Shriffin's point.)

So yes, in the counter-factual hypo where Dahmer was eating people for nutrition rather than because he was a lunatic (I assume Dahmer actually ate normal food for sustenance), I would say he was less morally culpable than Bundy. To be sure, in those circumstances, it'd be the difference between 10 and 9.99 on a scale of moral culpability, given that the existence of alternative sources of nutrition was so abundant and the harm caused so serious (whereas, with respect to consumption of animals, the alternatives are more constrained and the harm less serious, as far as most people's moral sensibilities are concerned).

Finally, as for whether some human consumption of animals can be characterized as entertainment rather than nutrition, I can certainly see your point that the line could be characterized as fuzzy, but I also don't think it's morally unreasonable to instead draw a categorical bright-line between eating and entertainment, rather than trying to second-guess whether a given individual's consumption "really" furthers his nutritional needs.

Michael C. Dorf said...

Hash: I have some reactions in the agree-to-disagree category:

1) In the cannibalism case, you say that there are abundant non-human sources of nutrition, but that's also true w/r/t non-animal sources of nutrition. So this is a factual dispute. My experience living as a vegan in the developed world leads me to conclude that in these circumstances the non-animal sources of nutrition are abundant and delicious.

2) You also say that the harm is less serious in the animal case than in the cannibalism case, but presumably you think that's true for BOTH nutrition and entertainment, so this point seems to me not to distinguish between Dahmer and Bundy (or their equivalents w/r/t animals).

3) I guess I just disagree with your comparative intuition about Dahmer and Bundy--unless it's driven by the Shiffrin point, in which case I'm not sure what I think.

James Longfellow said...

"Sadism, Shiffrin says, is worse than knowingly causing pain."

This is a terrible argument because it elevates motive over consequences. What difference does it make to the living thing which is caused pain the reason that it is caused? If anything, I would hold that the sadist is less morally culpable. Why? Because at least the sadist is getting an emotional good from the infliction of pain (pleasure, happiness) where as the person who knowingly causes pain but gets no emotional satisfaction in the bargain leaves everyone emotionally worse off.

"More fundamentally, the claim rests on the fallacy that because it is necessary to eat to survive, then any act of eating is somehow necessary to survive."

One can take the example of the Donner party where cannibalism was truly the only option to survive. So the argument from necessity is not fallacious; it is simply in most modern contexts inapposite.

Greg said...
This comment has been removed by the author.
Greg said...

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 think the answer to this specific question is NO, but for hardly any of the reasons discussed.

The reason is that despite the prosecutor's personal feelings on the matter, the people within their jurisdiction have collectively decided that particular forms of animal cruelty are sufficiently heinous to be made criminal, and others not. By being elected or appointed as prosecutor, the prosecutor has a responsibility to enforce the laws that the people have established, subject to a certain amount of reasonable discretion. I would argue that refusing to pursue the animal cruelty provisions that the people have established because the prosecutor feels that there should be more protections is beyond such reasonable discretion. I might even go so far as to say that this is akin to the police refusal to fulfill their duties that Mr. Buchanan has been commenting on.

If the prosecutor feels that further animal cruelty laws should be established, the correct thing to do is to openly advocate for new laws as a private citizen, not to abuse their authority as a prosecutor by refusing to enforce existing laws until additional laws are passed.

Halina Biernacki said...

The weight of this argument is human ego v. respect for life.

CRUELTY is abusive to humans, pet animals, nutritional animals, and is manifested in abuse of natural resources. CRUELTY is chine link towards criminal actions.

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