Hounded, Cowed, & Badgered

Crush videos banned (again)

President Obama has signed a bill banning crush videos. As noted a few posts down, a prior ban was struck as unconstitutional in United States v. Stevens. The enacted version follows the original Senate version of the bill (see comparison), in that it covers a broader definition of abuse, one partially rooted in federal criminal statutes involving human victims. In addition, the ban does not repeat the mistake of the pre-Stevens statute, which required an additional state or federal statutory violation. The Stevens court didn't like the possibility that state law violations, especially those for noncruel acts, could be "exported" to other states.

The only difference I can find between the original Senate version and the one what is now law has to do with inchoate offenses, i.e., acts falling short of commission of an act. The law does not expressly prohibit conspiracies or attempts to create, distribute, etc., the videos. There was some fear that the stripping of inchoate offenses might doom the bill, at least in the short term, but the bill passed in that form.

A Stevens-proof ban on crush videos?

In April, the Supreme Court decided United States v. Stevens, its biggest animal law case since the Lukumi decision in 1993. The case involved a First Amendment challenge to a federal law designed to stop crush videos, pornography showing small animals being crushed to death. The government in Stevens ran with the statute and prosecuted a seller of dog fighting videos. The Supreme Court, on an 8-1 vote, held the statute was constitutionally overbroad.

The majority opinion faulted the law for reaching animal-related acts that are not defined  as "cruel." The law, as written, required use of a depiction of "animal cruelty," but defined cruelty to include any wounding or killing of an animal that violated federal or state law. The court imagined various scenarios where a depiction of a purportedly uncruel act (e.g., hunting without a license) would nonetheless violate the law. It found particularly troubling that a person could be convicted of possessing a video showing violence against an animal that was not in fact illegal in the possessor's state.

The Stevens court held out the possibility that a more targeted law--one "limited to crush videos or other depictions of extreme animal cruelty"--could pass constitutional muster. Now comes news that the House and Senate have passed bills aimed at crush videos that ... actually target crush videos.

I've put together a table comparing the language in the statue now, in the Senate bill, and in the House bill. The full texts of both versions are at Govtrack.us. Both bills do a better job of defining the depictions being banned, though the Senate does a better job still by not requiring the depicted abuse to also be a state or federal crime. Both contain findings that draw parallels to caselaw on obscenity and child pornography. Both in fact require the depiction to be obscene; given the descriptions in the case, I'd hope all crush videos would qualify.

I personally find it difficult to get excited about these bills. They target a tiny segment of the pornography market and a miniscule portion of the animal abuse in this country. How little Congress cares about animals is evident in one change between the House and the Senate bills. The House bill recognizes a compelling interest in "preventing animal cruelty," a good policy goal, if one rarely acted on. The Senate bill, however, finds a compelling interest only in "intentional acts of extreme animal cruelty." What of "mere" animal cruelty? Well, some arguably cruel practices are expressly excluded from the statute's reach by an exception for depictions (even obscene ones!) involving hunting, fishing, and agriculture.

The one bright spot I see in the legislation is in the Senate's definition of the offense. It criminalizes the sale, distribution, etc., of depictions of animals being abused in several specific ways (e.g., drowning, suffocation), but also includes a catchall for depictions of severe bodily injury against animals. Severe bodily injury is defines not once but twice in reference to existing laws against humans. The law incorporates the definition in 18 U.S.C. § 1365(h)(3), which contemplates the injury of "another person" and "any individual." Most strikingly, the Senate bill defines severe bodily injury to include "conduct that, if committed against a person and in the special maritime and territorial jurisdiction of the United States, would violate section 2241 or 2242." As the links show, these statutes define the federal crimes of aggravated and simple sexual abuse. The Senate bill thus implicitly recognizes that harm to nonhumans is of a similar kind as harm to humans.

The Senate bill is also notable for its definition of the animal being depicted. While the current law and the House bill cover "living animals," the Senate covers "non-human mammals, birds, reptiles, or amphibians." On the one hand, this definition excludes insects and fish; on the other, it acknowledges frankly that humans are animals of a sort. This language parallels some state definitions of "animal" which expressly exclude human beings. See this Maine statute.

On da hill, in da statehouses, at da council in brief

The House has passed the Pets Evacuation and Transportation Standards Act (HR 3858), reports the HSUS. It would require state and local authorities receiving federal disaster to consider in their emergency preparation plans "the needs of individuals with household pets and service animals following a major disaster or emergency."

Following an embarrassing first try, Arizona has criminalized bestiality once again. The new law follows a high profile case involving the sexual assault of a lamb which brought to legislators' attention that bestiality has been decriminalized in the state since 1985. See this research memo. SB 1160 codifies the offense of bestiality in the same section of the code as the offense of child molestation.

Philadelphia is considering banning foie gras. (Update (6/4/06): Councilmember Kelly's bill [pdf].)

The mayor of Albuquerque has signed an animal care ordinance he thinks would be bad if enforced. There's a lot to like: limits on chaining, mandatory spay/neuter, very specific requirements regarding spaces for keeping animals, a broader power to seize animals. There's also some nice, but precatory language that the City Council "finds that the people of Albuquerque should treat animals as more than just lifeless inanimate chattel property." (Update 12/4/06: a challenge to the law has largely failed.)

In da statehouses, in brief

Louisiana considers legislation on evacuation of animals during emergencies, reports the LA Times. (Hat tip: Dawnwatch.) The Arizona Daily Star covers one Arizona legislator's effort to recriminalize bestiality, after another legislator embarrassingly attempted to tag the measure onto a bill protecting breast-feeding in public. The Iowa Senate approves a bill prohibiting the keeping of wild animals, says a brief in the Des Moines Register. Nebraska passes a law permitting the expansion of some factory farms, which the Grand Island Independent says is supported by (unnamed and unquoted) environmentalists.

Animal abusers and sex offender registries II

As discussed here, a Michigan court recently required a man who pled no contest to sexual assault on a sheep to register as a sex offender. A follow-up article in the Detroit Free Press by Jim Schaefer notes two wrinkles in the story. The basis for the order to register as a sex offender was reportedly that such registration would prevent humans from being sexually abused. Putting aside the questionable efficacy of such registries, see here, Schaefer notes "the few studies done on the subject have yielded no consensus on whether there is a link between animal sex abuse and sexual assaults on humans." This might form the basis for a rational-basis challenge. It also should cause advocates of animal rights to question whether emphasizing the link between animal abuse and human abuse is a good strategy. As we're sure others have noted, a focus on "The Link" treats animal abuse as an indicator of abuse to people (who really matter), rather than a wrong in and of itself.

The second item of interest in Schaefer's article is that the prosecutor in the case told him "the law is murky on whether [the defendant] belongs on the sex offender list." A little research shows that the crime of sodomy in Michigan is an old-timey "crime against nature" one, covering both human and nonhuman victims. MCL 750.158. A "listed offense," for the purposes of the Sex Offenders Registration Act includes "[a] violation of ... MCL 750.158, if a victim is an individual less than 18 years of age." MCL 28.722(e)(ii). Sheep, of course, have always been tarred by humans as animals typifying a lack of individuality. Cultural stereotypes aside, we don't think anyone could make a straight-faced argument that the text of the statute, especially given the age requirement, applies to nonhumans.

Horse people and the WA bestiality ban

Warning: frequent f-bombs! Charles Mudede of the Stranger (Seattle) has an essay on Washington State's all but inevitable passage of a bill banning bestiality (background). In a move that discounts the human-animal bond, Mudede notes that humans value horses solely as objects of pleasure and that the bestiality legislation is perhaps motivated by a desire to separate acceptable pleasure from unacceptable pleasure. To wit:

[Sponsor Pam Roach's] bill will reassure the legitimate horse community, drawing a clean distinction between horse lovers and horse fuckers. "It's really a bill that will protect animals, who are innocent by the fact they can't consent," Roach told the Associated Press. It's also a bill that will protect horse owners, who, like horse fuckers, are not innocent.

From a political perspective, this distinction is undoubtedly unhelpful--animal lovers are generally very supportive of animal law reform. Mudede, does however, say something truthful about how humans use animals and the anxiety surrounding this use. As Mudede notes, causing cruelty to animals is already a crime in Washington. His conclusion that something else is in play bolsters Peter Singer's controversial argument that bans on bestiality are more about human dignity than about animal rights.

Animal abusers and sex offender registries

The Battle Creek (MI) Enquirer reports a Michigan man pled no contest in state court to sodomy and, as part of his sentence, was required to register with the state's sexual offender registry (hat tip: How Appealing). Other offenders, whose victims were not children and/or were not convicted of a sex crime, have been somewhat successful in challenging their listing on sexual offender registries by claiming that there is no rational basis for being listed there. [E.g., People v. Johnson, No. 1-04-1292 (Ill. App. Ct. 2006); for 8th Amend. and EP challenges, see Criminal Appeal's sex offender registry posts here --ed.]. The argument by the state's attorney,and seemingly accepted by the court, focused on "The Link," i.e., the link between violence against nonhumans and violence against humans, which was the impetus for the so-called BTK clauses in Kansas's felony cruelty legislation and at least one of the rationales for the recent bestiality legislation in Washington.

Bestiality bill in WA

A bill is being sponsored in the Washington State Senate to ban bestiality.  The spin from the interested parties as to the purpose of the bill is varied, says the Seattle P-I and Times:  1) animals can not consent and no one should be forced to have sex; 2) animals can be hurt or killed during sex with humans; 3) animal abusers become people abusers; 4) people are coming in from states where bestiality is criminalized, making it a "mecca" for animal abusers (!).  Most seem to agree the bill is in reaction to the case of a man who was died while having sex with a horse recently, but the aim of the legislation does not appear to be public health.

Update (3/3/06): The bill has passed both houses and is going to the governor.