• Desmond’s Law: Imprecise Language Makes for Inadequate Advocacy

    Desmond’s Law: Imprecise Language Makes for Inadequate Advocacy

    Nila Bala[*]

     

    In 2016, Connecticut was lauded for becoming the first state to pass legislation allowing for an animal advocate to be appointed in animal cruelty cases.[1] The legislation, called “Desmond’s Law,” was named for a boxer-pit bull mix that was abused and strangled to death by Alex Wullaert in Branford, Connecticut.[2] Desmond’s body was found in a trash bag in the woods, emaciated, bruised, and starved.[3] Wullaert received accelerated rehabilitation, which meant that his charges were dismissed and his record was wiped clean.[4] In response to Wullaert’s sentence, animal activists, calling themselves “Desmond’s Army,” rallied for animals to have a voice in court.[5]

    News outlets have reported that Connecticut’s new law is similar to laws that appoint attorneys for the children and the infirm.[6] National Public Radio, for example, expressed that Connecticut is “the first state to provide animals with court-appointed advocates to represent them in abuse and cruelty cases, similar to laws that provide for victims’ or children’s advocates.”[7] Similarly, The New York Times described the law appointing “advocates for dogs and cats” as part of “a rising movement in the criminal justice system” that “has placed an emphasis on giving more of a voice to and adding support for crime victims,” such as “in cases involving children and the infirm.”[8]

    However, Desmond’s Law differs significantly from the laws that appoint advocates for children and vulnerable victims. Unlike those laws, advocates under Desmond’s Law do not represent the animal.[9] According to the statute’s text, the advocate, who is a volunteer attorney or supervised law student, may “present information or recommendations to the court pertinent to determinations that relate to the interests of justice.”[10]

    This Article examines why lawmakers chose to word the statute to protect the “interests of justice” rather than the animal’s interests and will argue that it was motivated by the historical underpinnings of the animal rights movement. While Desmond’s Law is an important first step in protecting animal welfare, this Article also explores the real drawbacks that the wording will present in animal cruelty cases.

     

    The “Interests of Justice”: Already a Term of Art

    There is already an advocate in the courtroom that represents the “interests of justice”—the prosecutor.[11] The public prosecutor’s role is to be an impartial minister of justice, a unique role that includes an interest in judicial efficiency and governmental economy, as well as special obligations to the defendant.[12] These interests are different from, and can even conflict with, a victim’s interests.[13] A prosecutor may decline to prosecute a case when a victim would prefer to go forward, or vice versa. Given that prosecutors do not represent victims, victims’ rights advocates have long argued for victims to have a separate and established place in criminal procedure.[14] Similarly, when children participate in the juvenile justice system or child welfare proceedings, an individual is appointed to represent them.[15]

    The “interests of justice” is a term of art and has defined the prosecutor’s role for decades, at home and abroad.[16] We could say it is in the “interests of justice” to protect children’s and victims’ rights, and it is in the “interests of justice” to protect defendants’ rights. Indeed, every attorney, at some level, has an obligation to the “interests of justice.” That statement is accurate, but ultimately vague and imprecise in defining the role of various advocates in the courtroom.

    Lawmakers yearned to fashion a novel advocacy position for animals in the courtroom giving a voice to the voiceless.[17] However, the wording of the statute demonstrates an underlying fear of giving animals too much of a voice. The law was opposed by both the Connecticut Veterinary Medical Association and the Connecticut Federation of Dog Clubs and Responsible Dog Owners, arguing in part that a law providing an advocate for animals in the courtroom would give animals legal standing.[18] Perhaps in the process of acquiescing to competing interests, Desmond’s Law has been gutted of its true intent—to provide meaningful advocacy for animals’ interests, not simply the “interests of justice.”[19]

     

    Three Ways to Frame the Animal-Human Relationship

    The language of Desmond’s Law demonstrates the continuing ambivalence in framing the status of animals in the law. Historically, animals have only been protected to the extent that they provide value to human beings. A framework put forth by Professor Margit Livingston helps to explain the deliberate wording of Desmond’s Law.[20] Livingston describes three distinct views of animals’ relationships to humans, mirroring the religious and philosophical beliefs of different time periods throughout history.

    Under the first view, animals’ interests are entirely subordinate to humans’ interests. Thus, the earliest laws treated animals as purely property, and the only crimes that could be committed against animals were those that could be committed against the owner’s property—malicious mischief and trespass.[21] A second view is that animals’ interests are intertwined with humans’ interests. Theorists of this view argued that cruelty toward animals should be prevented because it is linked to cruelty toward people.[22] This view, at least to some extent, undergirds most modern animal cruelty laws.

    Desmond’s Law, in certain aspects, reflects this second view.[23] For example, the Facebook page for the “Justice for Desmond” campaign[24] displays a graphic image of a face that is half-dog and half-woman, being shot in the head.[25] The banner proclaims, “Who mistreats or kills an animal can murder too. You could be the next victim.”[26] In this view, an animal’s value is derivative—that is, their value is conditioned upon their benefit to humans. Given the long-held legal status of animals as personal property, this perspective is not surprising.

    There is nothing inherently wrong with wanting to protect human victims as well as animal victims. The fact that animal abuse can be an indicator for human abuse should be noted by law enforcement and used as an investigative tool when appropriate. However, a view predicated primarily on derivative value—also termed extrinsic or instrumental value—is problematic. Derivative value is conditional. If the condition changes, then logically the value can also shift or disappear. For example, if we decry animal cruelty only because it is intertwined with human cruelty, if that link is disproven, there may be little reason to protect the animal anymore. More than eighty percent of Americans nationwide acknowledge the intrinsic value of wildlife even when it does not lead to instrumental gain for humans.[27] We are moving towards valuing animals for what they are, not just for what they can do for us.

    The “interests of justice” language demonstrates the discomfort in the law over whether animals’ interests and human interests are intertwined or distinct. By subsuming the advocate’s duties under the “interests of justice,” Desmond’s Law seems to indicate some equivalency between the people’s interests—as represented by the prosecutor—and the animals’ interests. Such a view denies the possibility that animals do have distinct interests.

    In contrast, Livingston’s third view presents animals as having their own interests, separate from human interests. Desmond’s Law embraces this view as well, by giving animals an advocate in the first place. If the law truly intended to protect animals only because of the value they provide people, why a separate advocate in the first place? Animal cruelty cases are often a lower priority to underfunded, overwhelmed prosecutors.[28] But in response, lawmakers did not provide an investigator, special prosecutor, or additional funding mechanism for the prosecutor’s office; Desmond’s Law created a separate advocate.

     

    Animals as Property, but More

    Acknowledging animals as sentient beings, capable of suffering and having their own interests, does not mean we must grant animals personhood or standing to bring civil matters. Protecting animals and giving them an advocate in criminal cases simply means acknowledging, as courts have already expressed, that “[pets occupy] a special place somewhere in between a person and a piece of personal property,”[29] and that the property label “inadequately and inaccurately describes the relationship between a human and a dog.”[30] Animals are not like tables or land. They possess the ability to suffer. They are beloved family members. Dogs and cats—the particular animals protected by Desmond’s Law—feel, think, and demonstrate empathy.[31]

    Even if we were to keep the “property” label to describe animals, it does not follow that owners can do whatever they wish with their animals. In many domains, property rights of owners are regulated. Cass Sunstein analogizes that: “You own your house, but you are probably not allowed to burn it down or blow it up, or to use it as a concert hall. You own your stereo, but if you have nearby neighbors you cannot play music as loud as you want.”[32] Legal ownership does not mean people can do whatever they wish with animals, and rules can still be enacted to prevent gratuitous suffering.

    Perhaps it is the semantics of property that are preventing us as a society from adequately protecting the welfare of animals.[33] However, courts can, and have, dealt with these sorts of issues before. The Oregon Supreme Court, in a trilogy of cases, defined a jurisprudence that allows animals to be considered property but does not force the conclusion that they should be treated as non-sentient objects.[34] Acknowledging that animals have an interest in being free from beatings or starvation does not require granting animals “human” rights, like the right to vote.

    It is also possible that the imprecise wording of Desmond’s Law originates from uneasiness towards bestowing legal interests to entities that cannot voice their own needs. Child advocacy has struggled with this conundrum for as long as family and juvenile courts have existed. However, despite difficulties in discerning the interests of an infant or a mentally disabled individual, the law has created an advocate for these parties and delineated a clear role for them.[35] Given other analogous situations in the law, where the law has accommodated advocacy for the voiceless, the law can, and should, accommodate an animal’s interests.

     

    Drawbacks of Imprecise Language

    Appointing yet another advocate for the “interests of justice” is statutorily imprecise and provides no guidance to animal advocates on whether their position should be distinct from the prosecutor. Without defining animals’ interests as distinct from prosecutors’, problems can—and in animal cruelty cases more broadly, already have—manifested. For example, animal victims of cruelty are routinely seized and kept as evidence pending a criminal conviction, which can be for months or even years, in the case of a felony charge.[36] Animals are often kept in sub-standard conditions and environments that challenge even healthy animals, and are kept from being fostered or adopted.[37] A prosecutor and Desmond’s Law advocate may both be representing the “interests of justice,” but clearly, their interests would differ in this case.

    The prosecutor and animal advocate would also likely disagree in dogfighting cases, where animals seized are often declared irredeemable by the state. Dogs seized in dogfighting cases are very expensive to house and care for as they must be individually housed by those trained in caring for fighting dogs.[38] In most instances, the state—in the “interests of justice”—would find it is practical and humane to euthanize them.[39] An advocate can make all the difference and can fight for a very different outcome for the dogs involved. In the Michael Vick dogfighting case, the United States District Court, in an unprecedented move, appointed Rebecca Huss as the guardian/special master to advise the Court regarding the final disposition of the remaining forty-eight seized dogs.[40] Because of her recommendations, many of the dogs were dispersed to rescue organizations and were rehabilitated and adopted.[41]

    As of May 2018, there had thus far been sixteen cases where Desmond’s Law advocates had been appointed, and reports were positive.[42] However, lawmakers would be well-served to clarify the advocate’s position in Desmond’s Law, rather than shy away from providing a true advocate for animals’ interests because of an unfound fear of rights burgeoning out of control. The rule of law demands that, as much as is possible—given the inherent constraints of language—actors should know in advance what the law demands of them and what they can expect from court proceedings. Utilizing more precise language to describe the advocate’s role will only make a good idea—having an animal advocate in the courtroom—even better.

     

    Conclusion

    As a society, we are finally moving closer to a model that acknowledges the sentience, empathy, and value that animals possess in and of themselves. Desmond’s Law is a much-needed first step. As it is the first law of its type, it is serving as a model for other states.[43] Let it truly be a model. Connecticut lawmakers owe it to their constituents, to the different parties in the courtroom, and most of all, to animals like Desmond, to craft a clear, precise law, one that does not shy away from acknowledging animals’ interests as distinct and real.

     


    [*] Associate Director of Criminal Justice Policy, R Street Institute. J.D. 2012, Yale Law School; B.A. 2008, Stanford University. The views expressed in this article are solely those of the author and not of R Street Institute. Special thanks to David Rosengard, Staff Attorney at the Animal Legal Defense Fund’s Criminal Justice Project, for his assistance.

    [1] To be clear, it is the news outlets’ characterization of the law, that the advocate represents the animal. In reality, the law makes clear that the advocate does not represent the animals’ interests specifically. See Rick Rojas, Abused Dogs and Cats Now Have a (Human) Voice in Connecticut Courts, N.Y. Times, Aug. 28, 2017,  https://www.nytimes.com/2017/08/27/nyregion/animal-abuse-connecticut-court-advocates.html?_r=0 [https://perma.cc/3KEP-6ANS]; Laurel Wamsley, In A First, Connecticut’s Animals Get Advocates In The Courtroom, Nat’l Pub. Radio (June 2, 2017, 5:46 PM), https://www.npr.org/sections/thetwo-way/2017/06/02/531283235/in-a-first-connecticuts-animals-get-advocates-in-the-courtroom [https://perma.cc/T7N6-BESX]; J.B. Wogan, In Connecticut, Abused Animals May Get Their Day in Court, Governing (May 31, 2016), http://www.governing.com/topics/public-justice-safety/gov-connecticut-courts-animal-advocates.html [https://perma.cc/QNY5-4CVF].

    [2] Pat Eaton-Robb, In One State, Abused Animals Get a Legal Voice in Court, U.S. News (June 2, 2017, 9:11 AM), https://www.usnews.com/news/best-states/connecticut/articles/2017-06-02/state-experiments-with-court-advocates-for-abused-animals [https://perma.cc/7FXA-7UDB].

    [3] Id.

    [4] Id.

    [5] Rojas, supra note 1.

    [6] See supra note 1.

    [7] Wamsley, supra note 1.

    [8] Rojas, supra note 1.

    [9] 2016 Conn Acts § 16-30 (Reg. Sess.) (available at https://www.cga.ct.gov/2016/ACT/pa/2016PA-00030-R00HB-05344-PA.htm) [https://perma.cc/Z2GK-S9YR].

    [10] Id.

    [11] Berger v. United States, 295 U.S. 78, 88 (1935).

    [12] Id.

    [13] Erin Gardner Schenk & David L. Shakes, Into the Wild Blue Yonder of Legal Representation for Victims of Sexual Assault: Can U.S. State Courts Learn from the Military?, 6 U. Denv. Crim. L. Rev. 1, 25 (2016).

    [14] One result of this movement was Congress’s Crime Victims’ Rights Act, which grants to victims an express, enforceable right to be present and “reasonably heard” at sentencing in federal courts. Crime Victims’ Rights Act of 2004, enacted as part of the Justice for All Act of 2004, Pub. L. No. 108-405, 118 Stat. 2260, 2261–65 (codified in relevant part at 18 U.S.C.A. § 3771 (West 2018)).

    [15] See Amy E. Halbrook, Kentucky’s Guardian Ad Litem Litigation: A Model for Seeking Role Clarity, 37 Child. Legal Rts. J. 81, 122­­­­­­­­­–27 (2017).

    [16] See Henry Lovat, Delineating the Interests of Justice, 35 Denv. J. Int’l L. & Pol’y 275 (2007) (commenting on the use of the phrase by the ICC).

    [17] A previous version of the bill did include the animal’s interests or the “interests of justice.” See supra note 9. See generally, Delcianna J. Winders, Confronting Barriers to the Courtroom for Animal Advocates, 13 Animal L. 1, 2 (2006).

    [18] Jessica Rubin, How dogs and cats can get their day in court, The Conversation (Nov. 2, 2017, 7:39 PM), http://theconversation.com/how-dogs-and-cats-can-get-their-day-in-court-80790 [https://perma.cc/78MW-CWCF]. The organizations opposing the law argued that it would change the relationship between owner and pet, cause “legal mischief,” and interfere with the rights of owners. Id.

    [19] See Halbrook, supra note 15.

    [20] Margit Livingston, Desecrating the Ark: Animal Abuse and the Laws Role in Prevention, 87 Iowa L. Rev. 1, 73 (2001).

    [21] See Gary L. Francione, Animals, Property, and the Law 121 (1995).

    [22] Livingston, supra note 20, at 13.

    [23] See, e.g., Joan MacLeod Heminway & Patricia Graves Lenaghan, Safe Haven Conundrum: The Use of Special Bailments to Keep Pets Out of Violent Households, 12 Tenn. J.L. & Pol’y 79, 99 (2017) (“The passage of the law appears to be connected to concern over both the link between animal abuse and violence against people and the paucity of animal abuse cases resulting in a conviction.”).

    [24] The Facebook page was started by those who took care of Desmond when he was at two different animal shelters. Kayte Mulligan, Not “Just A Dog”: The Justice for Desmond Campaign, New Canaan Patch (July 23, 2012, 10:16 PM), https://patch.com/connecticut/newcanaan/bp–not-just-a-dog-the-justice-for-desmond-campaign [https://perma.cc/8KHH-AVBY].

    [25] Justice for Desmond, Facebook (Jan. 3, 2018, 2:51 PM), https://www.facebook.com/JusticeForDesmond/ [https://perma.cc/P9UK-V2ZP].

    [26] Id.

    [27] Jeremy Bruskotter, Michael Nelson & John Vucetich, Does nature possess intrinsic value? An empirical assessment of Americans’ beliefs 1 (2015), http://www.michaelpnelson.com/Publications_files/Bruskotter%20et%20al.%20%282015%29%20IV%20Report.pdf [https://perma.cc/JBX5-GGJP].

    [28] Animal Legal Def. Fund, Why Prosecutors Don’t Prosecute (Dec. 3, 2017), www.aldf.org/article.php?id=245 [https://perma.cc/668S-KDRF]; see Livingston, supra note 20, at 4. (noting that prosecutors are hesitant to devote resources to animal cruelty cases, which are “frequently only misdemeanors”).

    [29] Corso v. Crawford Dog & Cat Hosp., Inc., 415 N.Y.S.2d 182, 183 (N.Y. Civ. Ct. 1979).

    [30] Rabideau v. City of Racine, 627 N.W.2d 795, 798 (Wis. 2001).

    [31] Simon Worrall, Yes, Animals Think And Feel. Here’s How We Know, Nat’l Geographic (July 15, 2015), https://news.nationalgeographic.com/2015/07/150714-animal-dog-thinking-feelings-brain-science/ [https://perma.cc/9JMJ-FVXD].

    [32] Cass Sunstein, Slaughterhouse Jive, The New Republic (Jan. 29, 2001), https://newrepublic.com/article/63234/slaughterhouse-jive [https://perma.cc/N8UM-U2QR].

    [33] Id.

    [34] Lora Dunn & David B. Rosengard, A Dog Is Not A Stereo: The Role of Animal Sentience in Determining the Scope of Owner Privacy Interests Under Oregon Law, 23 Animal L. 451, 461 (2017).

    [35] Interestingly, in the United States, animal cruelty laws and animal protection agencies actually preceded a recognition of children’s rights. After establishing the American Society for the Prevention of Cruelty to Animals (ASPCA), the founders began to work on extending the same protective measures that existed for animals to children. Elizabeth W. LeBow & Debbie J. Cherney, The Role of Animal Welfare Legislation in Shaping Child Protection in the United States, 2 Int’l J. Educ. & Soc. Sci. 35, 40 (2015).

    [36] Madeline Bernstein & Barry M. Wolf, Time to Feed the Evidence: What to Do With Seized Animals, 35 Envtl. L. Rep. 10679, 10683 (2005). There are forty-four jurisdictions where any and all neglected or abused animals can be seized prior to their owner’s conviction on cruelty charges. See id.

    [37] Id. at 10679.

    [38] Hanna Gibson, A Brief Summary of Dog Fighting Laws, Animal Legal & Historical Ctr. (2005), https://www.animallaw.info/article/detailed-discussion-dog-fighting [https://perma.cc/U6LR-CAZD].

    [39] Id.

    [40] Animal Legal Def. Fund, Animal Fighting Case Study: Michael Vick (last updated Dec. 15, 2010), http://aldf.org/resources/laws-cases/animal-fighting-case-study-michael-vick/ [https://perma.cc/H8G9-H74Z].

    [41] Id.

    [42] Daniel Tepfer, Bridgeport ‘legal beagle’ advocates for abused dogs, Conn. Post, (May 06, 2018, 3:35 PM), https://www.ctpost.com/local/article/Bridgeport-legal-beagle-advocates-for-12889211.php [https://perma.cc/CGG9-NXNN].

    [43] Jordan Otero Sisson, Abused Animals Will Get Voice in Court This Month Thanks to New Law, Hartford Courant (Apr. 10, 2017, 6:00 AM), http://www.courant.com/news/connecticut/hc-desmonds-law-animal-advocates-20170331-story.html [https://perma.cc/GQ9R-JEXM]; Angela Morris, Animal Law Clinics Become Pet Projects at Law Schools, Tex. Lawyer (Nov. 13, 2017, 2:25 PM), https://www.law.com/texaslawyer/sites/texaslawyer/2017/11/13/animal-law-clinics-become-pet-projects-at-law-schools/ [https://perma.cc/4NTB-CF3X].

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