Best Interests of the Animal — A New Statutory FocusPosted by Stephan Otto, ALDF's Director of Legislative Affairs on October 26, 2011
Last year I had the opportunity to present a lecture at ALDF’s Future of Animal Law Conference at Harvard Law School, the subject and proposals of which I would like to revisit here briefly.
Today, the U.S. has only three states which lack felony-level animal cruelty penalties – this is a dramatic shift from twenty years ago when forty-three states were without them. While there certainly remains a great need to strengthen and expand existing anti-cruelty laws and to ensure that such protections are fully enforced, it is time to expand the reach of our laws to encompass a new class of animal-focused statutes — a class I am referring to as best interests laws.
Complementary to laws which focus solely on protection from cruelty, best interests laws - either expressly or by effect – are provisions which recognize that animals have interests beyond protection from physical abuse and neglect. Certainly it is in the best interests of an animal not be subjected to mistreatment, but where anti-cruelty laws are, at their core, tools striving to protect animals from physical abuse and define societal standards, laws based primarily on best interests have the potential to more broadly and proactively impact the lives of animals in a multitude of areas.
The following are some proposals that fit into this classification of statutes. The custody proposal was formally unveiled last year; the registry proposal was launched as a campaign last year and has since been successfully enacted in three jurisdictions. I have previously written about the other two proposals, but they have not yet been made into state law.
It is noteworthy that these proposals borrow from some of the legal tools and concepts used on behalf of children. This makes intrinsic sense, as there are many corollaries between animals (especially companion animals) and children. For example:
- Both share a dependency on others for needs
- A library of laws protect both
- Both may be beneficiaries of trusts
- Both have many organizations/agencies working on their behalf
One critical difference – animals are legally property, which, in at least one proposal, presents some unique challenges.
- Custody of Companion Animals in Divorces & Separations
The custody of companion animals has been an increasing issue in litigation emanating from divorces or in the separation of unmarried parties. ALDF attorneys and others have attempted to have courts consider the best interests of animals in these situations with mixed results. This proposal, which I introduced at Harvard last year, seeks to assist the courts in these situations by codifying a structure whereby the best interests of an animal in a custody dispute must be considered. No state has yet enacted this proposal, but a New Jersey lawmaker began drafting legislation on this concept late last year.
- Animal Abuser Registries
I developed this concept over a decade ago and added it to ALDF’s model laws collection. As with sex offenders, the premise is that knowing the whereabouts of convicted animal abusers and providing animal shelters and the public with access to that information reduces the risk and costs of new victims. Clearly, it is in the best interests of an animal not to become a victim of cruelty or neglect – this proposal approaches that threat with prevention rather than reaction.
Last year ALDF launched a national campaign to raise awareness of this concept and, so far, there have been more than 40 such bills introduced in 21 jurisdictions. Three counties in New York (Suffolk, Rockland, and Albany) have enacted registries covering more than 2.1 million people and millions of animals.
- Court Appointed Special Advocates (CASA) for Animals
There is a perception for many in the public that prosecutors and other law enforcement officials are looking out for the best interests of animal victims – while often true, this is not always the case. Enacted by statute, CASAs for children have been around for decades for similar reasons, and we notice and appreciate their value. In the past, I have written about borrowing the concept for animal victims. Such a proposal would establish a similar system whereby criminal courts could appoint a CASA to represent the interests of the animal victim(s) during the court proceedings relevant to that case. Chicago has had an animal CASA program for a few years with successful results, however no state has enacted such a law as yet.
- Termination of Unfit Guardian/Owner’s Interest in an Animal
This proposal would allow a court broad review in determining whether a guardian/owner of an animal is fit to possess the animal and, if not, the means to terminate this interest. The court review includes considering conduct that may not rise to the criminal level, but nonetheless may be detrimental to the animal. It establishes that the court must consider the best interests of the animal in making its decisions.
These four proposals are just a beginning to the conversation, but I believe the era of best interests laws is upon us. By moving towards this next level of laws, we can continue to advance the interests of animals through the legal system and in so doing, help make their lives more valued and meaningful.