Animals as “Victims” Under Sentencing Guideline SchemesPosted by Geoff Fleck, ALDF Attorney on November 14, 2011
Shouldn’t animals that are injured by people convicted of hurting them legally be considered "victims?" This will allow, in many cases, punishment commensurate with the crime, especially in those states which have "sentencing guidelines" which recognize "victim injury" as a sentencing enhancement. This blog post recalls my recently experience as a Florida prosecutor and my attempts to get a meaningful sentence after a man I prosecuted was found guilty of cruelty to a Rottweiler dog, Rosco. I asked the judge to deem Rosco a "victim" and to score extra sentencing points against the perpetrator. [State v. Thomas Nebus – #01-2010-CF-3230-A; Eighth Judicial Circuit Court]
At last count, 21 states have some form of sentencing guideline system utilizing either a grid or worksheet structure. Some, like Florida and Maryland, consider injury to the victim as a sentencing factor. Florida, though, limits the definition of "victim" to "…any person…." This seems just wrong, though it is overwhelmingly the predominant legal view.
Animals are more than mere chattel. There is now no question that mammals, in particular, are intelligent, sentient, social creatures that feel both physical and emotional pain. Most states, in one form or another, mirror Florida’s felony cruelty statute which proscribes the intentional commission of an act or acts which result in "the cruel death or the excessive or repeated infliction of unnecessary pain and suffering" to an animal. They do not, and should not, speak of "damaging the animal property of an owner." As such, such laws, at least implicitly, recognize not only the sentiency of animals but their indisputable existence as victims of crime rather than inanimate objects.
It is no coincidence that three Florida statutes, in logical sequence, deal with the abuse of the elderly and disabled, address the abuse of children, and prohibit cruelty toward animals. Moreover, FS 828.03 treats animals exactly like children and allows for the appointment of agents to investigate violations of Florida law "for the purpose of protecting children and animals." [Emphasis added] Clearly children, the elderly, and disabled adults are recognized as victims. Surely it is only logical to afford animals, at least sentient mammals, the same recognition. To fail to do so would create an undeserved and illogical "loophole" by which the perpetrators of horrific acts of violence and cruelty to animals would escape full accountability.
While once ignored, denied, or rationalized away, there is now a compelling (and ever-growing) body of evidence that animals possess the capacity to experience pain, stress, and emotions such as fear. See, e.g., Animal Pain (Charles E. Short & Alan Van Poznak eds., Churchill Livingston 1992); Mental Health and Well-Being of Animals, ed Franklin McMillan, 2005, Blackwell Publishing; Physiology and Behaviours of Animal Suffering, Neville G. Gregory, 2004, Blackwell Publishing; The Sciences of Animal Welfare, Mellor, Patterson-Kane, Stafford, 2009, Wiley-Blackwell; Understanding Animal Welfare: The Science in its Cultural Context, David Fraser, 2008, Wiley-Blackwell. The concept that animals experience basic emotions, including fear and stress in response to pain may still be heresy to some, but the reality is no longer deniable. In the words of one prominent ethicist, animals are "more like people than like wheelbarrows in that what we [do] to them matters to them – they are "sentient." Bernard E. Rollin, Science and Ethics (Cambridge Univ. Press (2006) (emphasis original).
I presented all these arguments to the judge on behalf of the Rottweiler, Rosco, but he rejected them in light of the limitation of "victim" to "a person" provided under the Florida punishment code. Nevertheless, he adjudicated the defendant, a convicted felon, imposed a six month jail sentence, and added a consecutive three year period of probation that will insure, among other conditions, substance abuse and psychological treatment as indicated, a $2500 fine, and most important, no contact with animals. I can’t help but think, though, that maybe it’s time for the legislature of Florida and other states to start explicitly treating animals like the victims they, so very often, tragically are.