Hiding the Ball, On mere neglect (or less) but being convicted of cruelty

In law there are many forms of the game “hide the ball”.  Most often, it refers to a discovery of evidence game.  One party asks for something and, if they don’t ask “just right”, the other party doesn’t have to cough it up.  If you ask for too much, it’s called a fishing expedition and you still don’t get it.  Frankly, I think it all corrupts justice.  Unfortunately, hide the ball has made its way into statutes and the way courts use them.

The State of Texas has a Subchapter of the Health and Safety of Animals Code that is called “Disposition of Cruelly Treated Animals” and I suspect most of us know what we would consider “cruel” but the statute actually defines what is meant:  “In this subchapter, "cruelly treated" includes tortured, seriously overworked, unreasonably abandoned, unreasonably deprived of necessary food, care, or shelter, cruelly confined, or caused to fight with another animal.”  It is important to break down a statute to read it:

"cruelly treated" includes

  • tortured,
  • seriously overworked,
  • unreasonably abandoned,
  • unreasonably deprived of necessary food, care, or shelter,
  • cruelly confined, or
  • caused to fight with another animal.

Unfortunately, it does not go far enough in its definition but there are some things to note.  The terms “seriously” and “unreasonably” are quite important words.  The statute clearly doesn’t mean to go after nominal or excusable cases and call them “cruelty”.  There’s an important underlying legal concept here.

Crimes are composed of 2 basic elements: actus reus and mens rea.

Actus reus is generally what you did.  Let’s say your arm swung and hit someone wrong and that person dies.  You killed them but you may not have murdered them.  If you had a seizure which caused your arm to swing, you didn’t even voluntarily commit the act.  As a society, we’ve decided that your act generally has to be “voluntary”, something you can control before you are held responsible.  In this case, your act wasn’t voluntary so it probably wasn’t a crime at all.  Actus reus boils down to voluntarily doing something you shouldn’t OR failing to do something you had a legal obligation to do.

Mens rea is basically the answer to “why did you do that?” question and not all crimes require mens rea.  Those that do not have a mens rea element are called strict liability crimes.  These are the most minor of crimes in which nominal fines are possible and no jail time or taking or forfeiture of property is involved.  I’m talking about things like speeding and illegal parking.  The American Law Institute's Model Penal Code establishes strict liability only for violations, and for statutory rape of a girl under the age of ten.  The Model Penal Code is right on target.  Unfortunately and erroneously, the states and courts have expanded the strict liability crimes to include statutory rape and drunk driving.  These are beyond the scope for this entry but, IMO, the statutes and courts are in error with this expansion as it excuses the state from proving SOME kind of intent or even that there was intent where it should not do so.

The civil seizure (quasi-criminal) law for cruelly treated animals involves the taking and forfeiture of animals that the courts have already ruled as being something more important than mere physical property.  The companion criminal laws clearly allow for jail time.  These are NOT strict liability statutes so they MUST include mens rea and they do.

It is inherent in the plain language of the statutes.  For example, dropping a dog off at a shelter could very well be a dog “abandoned” but for it being quite the reasonable and the statute clearly says the violation is “unreasonably abandoned” and not merely abandoned.  By the same token, it designates “unreasonably deprived of necessary food, care, or shelter”.  There must be intent, there must be “unreasonable” deprivation.  That a family is experiencing hard times and feeds the humans before the animals and result in deprivation of the animals is NOT unreasonable nor does it show the intent to deprive that animal.  Much the same for overworking an animal; the statute doesn’t say “overworked” but it does say “seriously overworked”.  It isn’t that an animal fights but that one “caused” it to fight that is a violation.

That leaves us with torture and cruelly confined.  Where a statute is silent on definition of terms as it is on these, one looks to the common meaning, the plain language as it would be understood by society and that is a question of fact for judge or jury and, being a question of fact on a matter that touches upon the potential taking of property that is fundamental and protected, it must not be decided summarily and pro forma.  There must be good and sufficient cause for the taking and/or forfeiture.

However, cruelty is already rather well defined in law as “intentional and malicious infliction of physical or mental suffering on living creatures” (Black’s Law).  Anything less simply does not rise to the level of “cruel”.  And torture is something more than cruelty and has been in the news sufficiently for us all to understand that the level call “torture” is QUITE high.

While there are subsidiary governmental provisions in Texas (like city ordinances) that expand the protection of animals well beyond, the state animal cruelty law is rather clear to me and it simply is not intended to cover much, perhaps most, of what it is being used for.  It is grossly inappropriate for a judge to simply rubber stamp distasteful care of animals as “cruel” when it is nothing of the sort.  The judge in the USGE case did just exactly that.  While acknowledging that USGE met industry standards, the judge found all animals to have been cruelly treated.  Where is the maliciousness when one is attempting to comply and has actually done so?

Barbara Hoffman’s intent to protect her animals is rather clear to me and I simply do not see the maliciousness necessary to consider the confinement to protect her animals during a move and set up that is absolutely necessary to find their confinement to have been “cruel”.

If the Texas legislature wants to pass a statute or statutes dealing with lesser “crimes” involving animals like mere abuse and/or neglect, it knows well how to do so.  It is not for activist judges to ignore the Constitutions and willy nilly expand the meaning of plain and simple terms in order to bootstrap a crime from something that simply is no crime at all under current law.  I’m not talking about something novel and new but well, very well, established principles of jurisprudence that are simply and plainly being ignored to the detriment of all our property rights.  All too sadly, it seems to be something the teeny tiny courts and their teeny tiny elected judges need to be reminded of on an all too regular basis.

Judges: You are not free to pander to your electorate.  You have a higher obligation and you need to step up!

Actus reus just ain’t good enough judge.  Mens rea also needs to be present in the animal cruelty cases and, not only that, it needs to be present in the appropriate form and at the appropriate level; otherwise, butt out of what people do with their animals!  Right now, we have a significant number of activists, including prosecutors and judges, who want to hide the balls called “animal neglect” and “animal abuse” within a statute clearly intended to deal with cruelty and ONLY cruelty with the worst part being that they usually end up killing all too many of the animals.  That simply must stop.  And how does a society justify that killing is better than neglect anyway?

Tomorrow, another sadly forgotten concept: ex post facto laws are BAD.

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