I kid you not. That's what they said. They also cited the Tang Dynasty.
They also stated that they came to the common-law jurisdictions for the
first time, as pets, in 1853, as a result of the London Aquarium, and
so on and so forth. So, it was obvious to him that goldfish were
clearly companion animals, at least since the Ming Dynasty.
And this is what really caught my eye. With regard to the second
question, about whether the defendant, Mr. Garcia, exhibited a
heightened level of cruelty, the court concluded, very interestingly,
that he did, for two reasons.
because Little Juan suffered incredibly when Mr. Garcia stomped on
Junior. And number two, because, according to the judge's reading of
the statute and the legislative history, the purpose of the statute was
to identify individuals who might cause harm to human beings in the
future, and that Mr. Garcia's depraved and sadistic conduct--those are
the terms used by the court--revealed that he would clearly be one of
those individuals that ought to be identified as individuals who might
very well engage in violent conduct in the future.
OK. Now, the
court's answer to the second question--I'll leave the question of
companion animals without really discussing it. I guess I agree. I've
had goldfish. I think they're companions. But I don't know. It may be
debatable. But what I'm really interested in is the second question,
and that's the question that gives rise to the title of my article:
"Why is it a Crime to Stomp on a Goldfish?" Because, again, the court
seemed to suggest that it was a crime to stomp on a goldfish because
Juan suffered. And that struck me, at least initially, to be rather odd.
what I am going to do during the course of the rest of this lecture is
elaborate five theories that I came up with. And I actually think that
this is probably the most novel claim that I put forth here. The most
novel aspect of my talk is that I think this is the first time that
someone has tried to identify the different interests that might be
furthered as a result of animal-cruelty offenses and examine the pros
and cons of each one of those approaches.
This is a question that
I think has remained under-theorized. People either believe that it's
clearly the animal is the protected interest, or animal advocates, as I
will mention later on, actually believe that anti-cruelty statutes
protect property. Anyway, let me first mention the five theories, and
then I'll discuss each one of them separately.
OK. So one
possible theory is that what anti-cruelty or animal cruelty statutes
seek to protect is property. We protect animals because animals are our
The second theory, and this seemed to be the one
defended by the court in People v. Garcia. The second theory would be,
actually, animal cruelty statutes are not designed to protect property,
but rather designed to to protect those with emotional ties to the
creature. In this case, Little Juan.
The third theory, also
suggested by the court in People v. Garcia, is that, actually, the
purpose of anti-cruelty statutes is neither to protect property or
those with emotional ties to the animal, but rather to prevent future
violence against human beings. Why? Well, the theory holds that if you
are cruel to animals today, that might indicate that you will be
violent to humans tomorrow.
A fourth possible theory is that
animal cruelty offenses actually seek to enforce a moral principle,
that engaging in this conduct is just immoral, and because it's immoral
that's a sufficient reason to criminalize the conduct. So, under this
theory, animal cruelty would be very much like indecent exposure, for
example. We criminalize it not because someone is directly harmed, but
rather because we just think that this is immoral.
the fifth theory that I suggest may explain why it is a crime to be
cruel to animals is because we actually want to protect the animal
itself from unjustifiable inflictions of pain.
Now, I will, in a
couple of minutes, proceed to examine each one of these theories, the
pros and cons to each one of these theories, and eventually will
explain which one I think more adequately explains why we criminalize
cruelty against animals.
But before doing so, I want to say a
couple of things, very briefly, about two concepts that are important
in order to understand the rest of the lecture. One is the concept of
victimhood. Now, I think the concept of victimhood is worth exploring
briefly here today because, in a sense, the question that I'm asking,
these five theories, the question is, who's the victim? Right? If we
conclude that we are protecting property, then the victim is the owner
of the property. So on and so forth. If we conclude that we're
protecting the animal, then the victim is the animal itself.
think that's another good vehicle with which to understand the kind of
question that I'm asking here today. So I will explain, more or less,
what I mean by victimhood. I will also explain what I mean by
victimless crimes, which will become relevant eventually. And then,
after discussing victimhood, I'll discuss the notion of consent, which
is also relevant because, as we will see, consent sometimes negates
victimhood, so it's directly related to victimhood.
OK. First, a
couple of comments on victimhood. Basically, a victim, in a nutshell,
is a person whose interests are harmed by another person. Now, this is
a rather strict definition of victimhood. You could conceive more, I
guess, broader definitions of victimhood. But I think it's better to
reserve victimhood to a class of people or beings, not necessarily
human beings, but beings that are directly harmed as a result of the
conduct of another.
Now, many crimes, of course, involve the
infliction of harm to victims, and basically all of our core offenses
involve the infliction of harm to a concrete and direct victim. So,
homicide protects, of course, a person who is killed. That would be the
victim. In cases of theft, the owner of the property would be the
victim. In cases of rape, the person unjustifiably hurt by the rape
would be the victim, and so on, and so forth.
So, in most of the
court crimes, we have a person that is directly harmed by the conduct.
I would like to point out, however, without going into much detail with
regard to this concept that scholars, and sometimes courts, have also
talked about the existence of so-called victimless crimes. Victimless
crimes are crimes that do not directly harm a particular individual or
a particular being.
I think paradigmatic examples of victimless
crimes might be, for example, possession offenses. So drug possession
does not directly harm any human being. Maybe consuming drugs might,
but the drug possession in and of itself does not directly harm any
human being. And weapon offenses are another great example, or the
possession of tools for a burglary, for example, which is a crime in
These offenses are criminalized despite the
fact that no individual is directly harmed as a result of engaging in
this type of conduct. And what I will ask you to do while I am
discussing the five different theories of why it is a crime to be cruel
to animals is identify who the victim is in each one of these cases, or
whether, if we adopt this theory, the offense of cruelty to animals
becomes a victimless crime.
OK. And then, before examining the
theories, let me say a little bit about consent. Now, consent is very
interesting, because the law usually is not very much concerned with
magic, but consent actually does have magical properties. It does
because consent actually is transformative of the moral quality of an
And as Heidi Hurd, the great philosopher so eloquently
stated once, "Consent turns what would otherwise be rape into a
beautiful act of lovemaking. It turns theft into a sale, battery into a
handshake, a trespass into a dinner party, an invasion of privacy into
an intimate moment, and a commercial appropriation of name and likeness
into a biography." Right?
So, consent is magical. It turns forms
that would seem to be at first glance an act of subjugation to an act
that is desirable for all of the parties involved. And then the reason
why I find consent to be relevant to my subsequent discussion is
because consent, what it seems to do is, it demonstrates that what at
first glance appears to be an act that harms an individual victim, upon
closer inspection, it doesn't harm that person at all.
eventually, when we say that the victim consented to the harm, what we
seem to be saying ultimately is that there actually is no victim. So
that's for example why the now unconstitutional offenses of
consensually engaging in anal intercourse with another human being, now
unconstitutional of course after "Lawrence v. Texas, " in that offense
we would say that the consent actually negates the existence of a
No one has been victimized by the conduct. Right? So as
long the parties are capable of consent, and there was no coercion, it
would actually seem that consent negates victimhood and thus it might
be relevant when examining who the victim is in the different theories
that I will now discuss.
OK. So, now let me discuss the five
different theories. First one -- the protection of property,
anticruelty statutes intend to protect property. Well, first the
question would be, "Who's the victim here?" Clearly the victim would be
the owner of the animal.
What are the pros of this approach?
Well, I think the pros of this approach is that it helps to understand,
it adequately explains a couple of aspects of anticruelty laws, and the
one that I will focus on today is the fact that animals in the wild
typically can be harmed up until the point when they become the
property of someone else.
Once you acquire property over that
animal, magically that animal is more protected by the criminal law,
and then harming that animal or killing that animal would interfere
with the owner's interest. So, if the fish is lying there in the river,
there's no problem, but once you catch the fish and put him inside your
boat, then the fish is protected as property, right?
What are the
cons? Well, the cons for me basically are that owners, as you probably
know, can't mistreat their animals, especially their companion animals.
If you have a dog and a cat, or even you have a snake, you can't kill
them at will. You can't set them on fire. You can't say, "Well, it's my
So consent in a property offense negates
victimhood. Consent turns theft into a sale. Consent turns criminal
damages into lawful destruction of my own property. I can set fire to
my own property as long as it doesn't harm others. I can destroy a wall
in my house, but I can't - even if I want to - I can't mistreat my
animals under many circumstances. So, that's a con. It can't explain
why mistreating your own animals is criminalized.
And the other
con is that it can't explain that other very important context in which
animal cruelty laws have a big influence, and that is dog fighting and
cock fighting statutes. Statutes that prohibit this type of conduct
prohibit it despite the fact that the owner of the creature is actually
more than willing to have that create suffer harm at the expense of
some other animal.
Michael Vick...think of it. Right? Michael
Vick didn't care that much about the dogs. He was the owner, but who
cares? It's irrelevant. The owner's consent is irrelevant. It doesn't
negate the harm, so the owner can't be the real victim in these cases.
That's briefly about the protection of property. The second theory -
the protection of those with emotional ties to the animal. Who's the
victim? Well, the person with emotional ties to the animal. In the
"People v. Garcia" case the victim would be little Juan.
the pros of this approach? Well, this approach adequately explains the
fact that companion animals receive more protection than non-companion
animals. I think probably the best way of making sense of this is, that
since they keep you company, you are in part a victim of the offense
when someone harms that animal.
So, I think it explains that
quite nicely. It might also explain quite nicely why killing or harming
animals as a result of fishing or hunting is permissible, because we
don't have strong emotional ties to that fish that's swimming in that
pond. We don't have close emotional ties to that wolf that we kill.
about the cons, well, again, think of that stray dog that everyone
hates, all right? Smelly, you don't like him. He rummages through your
garbage. You actually can't kill him. You have to go by way of the
procedures for disposal of animals that are being dangerous to the
community, but you can't set him on fire, for example.
that is what spurred the New York anticruelty statute that someone fire
on a stray dog. You can't do it, even if no one likes him, even if no
one cares about his existence. You can't do it.
Same thing again,
same problem here arises with dog fighting statutes and cock fighting
statutes. You can't, even if you have no emotional ties to the animal
as would think that many of the people who engage in dog fighting and
cock fighting, even if they don't have strong emotional ties to the
animal, even if ultimately they don't care whether the animal dies as
long as they are able to engage in the activity that they like, it's
irrelevant. The conduct is still criminalized. The existence of a
strong emotional link is not a prerequisite for prosecution of these
OK. Let me briefly discuss the third one - prevention of
future harm. This one is interesting. Are animal cruelty statutes
designed to prevent future harm? Well, in this case, who's the victim?
And the answer is "No one." If we conceive of animal cruelty statutes
in this way, animal cruelty statutes would become a victimless crime
because the killing of the animal will not harm anyone other than
We would only be criminalizing it because we fear
that harming the animal today might mean that you are more willing to
harm a human tomorrow. So, there is no direct victim that is harmed as
a result of concealing the offense in this way, of harming the animal.
So, what are the pros of this approach? The pros of theses approach is
that it actually can explain as well why we are allowed to harm animals
as a result of fishing, hunting and factory farming practices. It would
seem to be the case that usually fishermen, hunters, and people who
engage in factory farming are not particularly violent to other human
Those seems to be - and as far as I know and I tried to
read the literature - there seems to be no link, no proven scientific
link between hunting and certainly between farming and fishing and
being violent to animals in the future. So, that is a problem. Actually
that's a good reason to believe that this is a purpose of anticruelty
Another good reason to believe that this is anticruelty
status is we actually do have studies that demonstrate that people who
intentionally harm animals are more likely to intentionally harm human
beings in the future. So, that seems to be true.
OK. What are the
cons? Well, one of the cons is that, as you may know, the negligent
mistreatment of many companion animals is criminalized pursuant to
most, if not all, US anticruelty statutes. However, there has been
absolutely no empirical study demonstrating a link between negligent
and mistreatment of animals and future violence towards human beings.
So, here it would seem that the rationale could not explain why we
criminalize negligent and mistreatment of animals.
con is, again, that big elephant in the room of dog fighting statutes
and cock fighting statutes. It just is not the case that people who
engage or in some ways support dog fighting activities or at least it
hasn't been demonstrated, that they're more likely to be more violent
against humans in the future, and certainly in the case of cock
fighting, which is prohibited in every state, and unfortunately, is not
in my hometown in Puerto Rico. But there certainly is no link between
participating in cock fighting activities and future violence to human
I can actually confirm that, anecdotally. Personally, I
know many people in Puerto Rico who engage in cock fighting and they
appear to be peaceful citizens and do not seem to be predisposed to
violence in the future. So, I think this really can't explain this
prevention of future harm theory. It can't explain many significant
aspects of anti-cruelty laws.
What about enforcement of a moral
principle? Who would the victim be here? Again, no one. There is no
victim. We're just criminalizing the conduct because it is contrary to
morality, not because it harms concrete individual.
again, I think it can explain adequately why fishing, hunting and
factory farming are not considered unlawful under anticruelty statutes.
Why? Well, because we actually at this point, a majority of the
population - rightly or wrongly - but a majority of the population
seems to believe that fishing, hunting, and factory farming is not
particularly immoral. Whereas a majority of the population does seem to
believe that dog fighting and cock fighting is immoral.
theory can actually explain why we criminalize dog fighting and cock
fighting, but don't criminalize fishing, hunting and factory farming
The cons. The problem is that saying that the fact
that the conduct is immoral is enough. It's a sufficient reason to
criminalize the conduct proves too much. I think that there's a general
principle of criminal law that holds to the mere fact that a majority
of the population believes that conduct is immoral is not a sufficient
reason to criminalize the conduct.
Now this principle can be
traced back to the harm principle defended by John Stuart Mill and on
liberty and defended later on by H.L.A. Hart in "Law, Liberty, and
Morality, " stating that the state can only prohibit conduct. More
specifically, the state should only criminalize conduct if it causes
harm to others. The mere fact that conduct is immoral is a thing in
itself not a reason to criminalize the conduct. So, again, this
conception of anti-cruelty statutes would seem to run a foul the harm
principle. I personally think that is a bad thing.
By the way,
it's also worth mentioning that the Supreme Court in Lawrence v Texas
also suggested that due process, substance due process, may not allow
the state to criminalize conduct solely because it is immoral.
in Lawrence v Texas, the court stated that and aside the fact that the
majority of the population believes that it is not a sufficient reason
to criminalize a practice. That's what the Supreme Court said in
Lawrence v Texas, so there is some authority there to also state that
the harm principle is in some way intermingled with US constitutional
Another con of the enforcement of morality as a reason for
animal cruelty statutes is that it is odd to claim that animal cruelty
statutes are victimless of crimes. It is odd to claim that no one, that
is no discreet being or individual, is harmed and that this crime is
similar to indecent exposure, for example.
That's not the way
that I think we intuitively - at least it is not the way that I
intuitively think - about animal cruelty statutes. I don't think it's a
victimless crime. I don't think that most people believe that it's a
victimless crime. So, I think that the fact that it doesn't jive well
with the conventional intuitions about the interest out to be protected
by animal cruelty offenses is a problem for this approach.
it might very well be the case that the purpose of anticruelty status
is to protect the animal itself from unjustifiable infliction of pain.
Who's the victim here? The animal. The animal would be the victim here.
the pros would be well, this can actually explain what most other
theories fail to explain. It can explain why dog fighting, for example,
and cock fighting are criminalized. Well, because, of course, the dogs
suffer serious and unjustifiable inflictions of pain as a result of dog
fighting, same thing as a result in the case of cock fighting. It can
also explain quite easily why negligent, mistreatment of animal is a
We don't care whether there's a link between the negligent
and mistreatment and future violence. We don't care about whether
someone loves the animal or not. We care about the animal itself. You
unjustifiable cause harm to the animal, that's enough reason to
criminalize the content.
OK. But what's the con? What's the
argument against this theory? Well, the argument against this theory is
that there are many exceptions to anticruelty statutes. The argument
against the theory is, as we already know, that you can harm animals
pursuant to hunting activities. You can harm them pursuant to fishing.
You can harm them pursuant to factory farming. You can harm them
pursuant to animal research.
This is what animal law advocates or
many, not all, but Gary Francione for example, the champion of animal
rights has repeatedly argued these exceptions to anticruelty statutes
actually reveal that we don't really care about animals, but rather
that we care about protecting our property interest in animals.
again the argument is all of the exceptions that animal cruelty statues
actually demonstrate that the purpose of anticruelty statutes is not to
protect the animal, but rather to protect our property interests in the
I'm just going to cite from Professor Bryant who teaches
in UCLA here, a west coast animal law advocate. She is an animal rights
scholar who follows Gary Francione's hard-line approach to animal law.
She states, she's discussing, the way in which the criminal laws deals
with cases involving harm cause to egg-laying chickens.
what she states and I cite, "The law does not identify as cruel the
practices that directly cause their suffering. If the suffering of
these hens is deemed necessary for the eggs they supply to humans,
then" and this is what really matters to me. Professor Bryant claims,
"then that suffering simply doesn't count in legal terms. Nor does the
suffering of the humans who care about that suffering."
OK. And I
think this position is a position widely shared by many animal rights
advocates. And I think the position is wrong. I think it's confusing
because it fails to take into account certain foundational aspects of
the structure of criminal offenses, so this is why I say at the
beginning of this talk that I think that many animal law advocates need
a lesson in criminal law theory.
What I think is going on here is
that people like Professor Bryant and Gary Francione and others confuse
the exceptions that justify the infraction of the elements of the
offense or the prohibition with the offense itself.
words, they claim that because there are a lot of exceptions or a lot
of justifications to infringe the elements of the offense that that
demonstrates that the offense is not really intended to protect
animals. And I think that is a non sequitur, but let me explain this in
a little bit more detail.
In order to drive my point home...this
is the last part of my talk...in order to drive this point home, what I
need to do now is briefly talk to you about the structure of criminal
offenses generally. Now, this argument that I will defend now is a
conceptual argument about the structure of all criminal law offenses in
the U.S. and Puerto Rico, China, Germany, Japan, doesn't matter.
basically, what I want to share with you...and you're probably may know
this...is that there are two very distinct reasons why conduct may be
considered lawful. One is because it doesn't satisfy the elements of an
offense. The other is that because even thought it satisfies the
elements of the offense, it's justified pursuant to a permissive norm.
this is what animal law advocates miss, and this is just true of every
single law in every single jurisdiction. You have a general rule that
that's the whole debate between [Inaudible 37:27] or no vehicles in the
park. Of course you have a law prohibiting vehicles in the park, but
you may have other norms, either judicially or created by way of the
legislature, that allow you to have vehicles in the park in exceptional
And that's what's going on here. You always have
laws that explain what the elements of the offense are, and laws that
basically put forth justifications to engage in the elements of the
offense. And in both cases, either both when your conduct does not
satisfy the elements of the offense, and when your conduct is
justified, your conduct is lawful, but for different reasons.
order to illustrate this, I want to borrow an example from a great 20th
century German, probably the greatest criminal law scholar of the 20th
century. His name was Hans Velsel. And Hans Velsel illustrated the
difference between the offense and the justification by pointing out
that it just simply is not the same thing to kill a fly than to kill a
human being in self-defense. It just simply isn't the same thing, right?
Velsel pointed out, if you kill a fly, you engage in conduct that
doesn't satisfy the elements of the offense. If you kill a human being
in self defense, you engage in conduct that satisfies the elements of
the offense, but it's justified. Both of them are lawful, but both of
them are lawful for different reasons, OK?
In my talk, instead of
talking about the fly, I'll talk about shooting at a piece of paper,
because a fly is an animal, and I don't want to confuse animal law
people by trying to state that killing a fly is not a crime. I think it
probably isn't, but we can debate that later. I don't want that to be a
distraction, so I'll substitute the killing a fly with shooting at a
piece of paper vis-ÃƒÂƒ -vis, shooting and killing a human being.
claim is that shooting at a piece of paper is lawful, obviously,
because it's not an offense, unless it's someone else's piece of paper,
but I don't think that matters either. It's a minimus infraction in any
case. OK. So, if this is my piece of paper, and I shoot at it, no
offense. But, vis-ÃƒÂƒ -vis shooting and killing a human being in
self-defense, both are lawful, but for different reasons.
nutshell, why are they lawful for different reasons? Well, number one,
conduct that does not satisfy the elements of the offense causes no
legally relevant harm. So, you can't say that you harmed an interest
that's protected by the criminal law. No, the piece of paper is not
protected by the criminal law or by any other law. So, you don't harm a
legally relevant interest.
Vis-ÃƒÂƒ -vis, when you're justified,
you engage in conduct that harms a legally protected interest. After
all, you have the dead body lying there of the person, and just by the
mere fact of that person being an aggressor, it doesn't' mean that his
life no longer is of value for the law. That's not what it means.
means that given that there is a conflict here between the life of the
aggressor and the life of the defender, we choose the life of the
defender over the life of the aggressor if it comes to that. But it
doesn't mean the life of the aggressor is of no value. So, there still
is harm. However, the harm is outweighed by the benefits reaped by the
Another way of looking at the difference between the
defense and the justification has to do with reasons. The offense
provides you, and the offense provides me with reasons -- legally
relevant reasons - with reasons to abstain from engaging in certain
So, the offense of homicide provides me a very legally
relevant reason to abstain from killing someone else. There might be
other reasons, moral, social but clearly provides me with a legally
relevant reason to abstain from killing someone else.
on the other hand, do not provide reasons to abstain from engaging in
conduct. What they provide, actually, are reasons that may outweigh the
reasons represented by the offense in order to abstain from engaging in
So, when you say, for example, that I can...the
famous criminal law textbook example...that I can set fire to a farm in
order to create a firewall to save the whole town. Well, the
justification afforded as a result of necessity or choice of the lesser
evils is grounded on the fact that the reasons for engaging in the
conduct outweigh the reasons represented by the offense for abstaining
to engage in the conduct.
In other words, saving the town
provides you with reasons that outweigh the reasons against engaging in
the conduct which would be saving the farm. But these reasons that
justify conduct do not wipe away the existence of an offense. They do
not wipe away the existence of reasons that exist there in favor of
abstaining from engaging in the conduct.
Just ask the farm owner.
His farm is destroyed. That's still a reason that's there for
abstaining to engage in the conduct, but it's overridden. It's
outweighed by other more important reasons.
And finally, regret.
What does regret have to do with all of this? Well, it has something to
do with it. When you engage in conduct that satisfies the elements of
the offense, you have reason to regret what you have done, I think,
even if your conduct turns out to be justified.
So, if Professor
Calandrillo kills Professor Nicholas for whatever reason, right...let's
say that Professor Nicholas...there he is...that Professor Nicholas was
attacking him because he wanted to be the Charles I. Stone Professor of
So, if Professor Nicholas was attacking him, and Professor
Calandrillo kills him in self-defense, we would...I think...and at
least up to this attack, they were friends...one would think Professor
Calandrillo even though he acts justifiably, and he doesn't act
unlawfully when he kills Professor Nicholas, because Nicholas is an
aggressor, Professor Calandrillo still has valid reasons to regret
having done what he did, right? Certainly.
Why? Because the
reasons that make the killing of a human being an offense are still
there. They're overridden by the justification, but they're still
there. So, they give us reason to regret the conduct. Professor
Calandrillo has reasons to regret having killed Professor Nicholas. He
can say, "It would have been better if I never had the opportunity to
do this." That would have been a better outcome, right? So, there are
still things to regret.
And that regret some scholars have
argued...and I agree...that regret always provides us, provides
Professor Calandrillo with good reasons to look for alternative, less
intrusive means of repelling the aggression, because there's something
to regret in killing that person. Whereas of course, when there is no
offense, there is no reason to look for less intrusive means. If you
step in a piece of grass, it is not legally relevant. There is no harm,
no foul, you don't have to look for less intrusive means to harm the
grass, it is irrelevant. OK.
Now, finally, why is this
essentially important for determining why it is a crime to stomp on a
goldfish. Why is it a crime to harm egg laying hens?
Well, it is
important because we understand why conduct is a crime by examining the
offense, not by examining the justification. So, for example, it would
be wrong headed. Well, it would just be plain wrong to say that because
the law allows Professor Calandrillo to kill Professor Nicholas in self
defense, that reveals that the purpose of the law of homicide is not to
protect human life. That doesn't make any sense. It doesn't follow it.
It is a non sequitur.
The fact that there is an exception that
allows you in some circumstances to infringe the elements of the
offense doesn't mean that the offense was not designed to do whatever
it is that it was assigned to do in the first place. It just means that
there are in this case, reasons that outweigh the reasons represented
by the offense as reasons to obtain and engage in the conduct.
And this is exactly the mistake committed that I argue that many animal
law advocates commit, right? What they say, for example, the excerpts
that I read some minutes ago. What they say is well, egg laying
chickens, right, if you inflict pain on them for egg production,
necessary for egg production, the argument goes that the means that
they're suffering and I site again, their suffering doesn't count as
legally relevant suffering. Well, that is wrong. It does.
legally relevant suffering just like Professor Nicholas death is
legally relevant. It just outweighed by the competing considerations
that justify the conduct. So, the fact that the hen that you are
entitled, your justified inflicting harm on the hand that is necessary
for egg production doesn't mean that harm that you inflict doesn't
It doesn't mean that it is irrelevant and it certainly
doesn't mean as animal law advocates hold that it proves that the
purpose of anticruelty statutes is not to protect animals in general or
hens in particular. It just means that rightly or wrongly, we have
decided to include a whole host of justifications that actually justify
satisfying the elements of the offense.
What we are really taking
issue with, I argue, is not with the offense of cruelty to animals but
rather with the many justifications that allow us to inflict pain on
animals. What we want to prove then is that if these justifications are
unwarranted that they are too broad. We should fight against the
justification not against the offense. The purpose of the offense is to
protect animals from pain, but we might just be wrong about the
different instances that actually justify inflicting pain. That is my
argument. Now, finally before I conclude why does it matter?
I think it matters for several reasons. The first one is purely
conceptual. I think the animal law advocate here is confusing certain
concepts. They are conflating the offense justification distinction and
this is conceptually unsound. I think it is good in a pure sense to be
conceptually sound even if no practical implications follow from it.
in this case, practical implications do follow from it. First, if the
judge in Garcia were to have to determine whether there was aggravated
cruelty, one of the possible ways of answering the question is what is
the purpose of the statute? Why do we advocate punishment when there is
a heightened level of cruelty?
And of course, the animal law
advocates claim: well the purpose of the statute is to protect property
interests, really doesn't help a lot. Whereas the position we all know,
the purpose of this statute is actually to protect the animal from
unjustifiable infliction of pain helps because it shifts the inquiry
from the perpetrator to the animal and the suffering inflicted on the
And the last the reason why it matters is purely
strategic and this is my main beef with animal law advocates or many of
them. Again, not all, I don't want to generalize. But my main beef is:
look, the problem here is that we all want the same thing. I want
factory farming to be either intensely regulated or eliminated.
want unjustifiable infliction of pain of inflicted to animals to be
eliminated and you do, too. Now, the difference is that the animal law
advocates claim that animal cruelty statutes are not intended to
protect animals, holds a very cynical position. And it is a position
that I believe is not appealing to main stream America, main stream
people in other countries are saying, OK, so you are telling me that we
enacted statutes when we believe we were concerned with dogs and cats
but we didn't do it because we were concerned with animals, but rather
we did it to protect some sort of property interest? That I think is
somewhat cynical and off putting for a lot of people.
other reason is: look, why not if there are a lot of arguments as I
have argued here today, in favor of claiming that the purpose of
anticruelty statutes is to protect animals from pain. Why not tap in to
that basic sentiment and explain to people, look there is a basic
incoherence here. If you actually enacted animal cruelty statutes to
protect animals, why do you allow so many justifications to afford you
permission to inflict pain on animals for rather trivial reasons, for
the entertainment value of hunting or fishing or for the fact that meat
tastes good. But Tyson is the best chicken on earth, right? Is that a
sufficient justification to inflict incredible amounts of pain on
I think it is better to engage the public that way to
say I know you care about animals that is why you enacted animal
cruelty statutes than to hold the more cynical view. Actually, you have
never cared about animals in the first place so let us scrap the whole
anticruelty statutes and start from scratch. I don't think that will
OK. So let me just conclude. Let me just get
back to junior. I think that once it is understood that the principle
purpose of anti cruelty statutes is to prevent injury to animals. One
can see why the decision in Garcia cannot withstand careful scrutiny.
court asked in my opinion all the wrong questions because it seemed to
conceive animal cruelty statutes as laws that are designed either to
prevent future harms to humans or to prevent emotional harm to those
with close ties to the animal. [Inaudible 50:20] . The former concept
to all this statute of animal cruelty statutes lead the court to focus
on the state of mind of a perpetrator in order to determine whether his
act has been to a heightened level of cruelty. The later, emotional
harm conceptualization of these statutes led the court to focus on this
emotional harm caused to little Juan, the custodian of the pet.
believe that by misapprehending the nature and purpose of anticruelty
statutes, the court gave short shrift to the only being whose interest
were thought to be protected by such legislation. The animal harmed in
this case, Junior, the goldfish. Therefore, the question that should
have been asked in Garcia is whether the instantaneous killing of the
goldfish by stomping on him constitutes an act of simple or aggravated
The decisive consideration should thus be the amount of
pain and suffering endured by the fish as the amount of pain inflicted
increases, the arguments in favor of considering the act to be one of
the aggravated cruelty gets stronger. Contrarily, if the amount of pain
and suffering decreases, the case in favor of finding of aggravated
cruelty gets weaker.
Now, I actually believe that reasonable
minds might disagree with regard to whether the suffering endured by
Junior was of such degree to warrant a termination of aggravated
cruelty and the felony status of the crime that this entails. On the
one hand, I believe that the defendant's contention that the fish did
not suffer because he was killed instantly, seems to point in the
direction of not considering this act to be one of extreme cruelty.
agree. Usually, dying instantly is not as bad as dying a slow and
painful death. On the other hand, it might be argued that the killing
of a being constitutes a supreme act of cruelty. Especially when the
killing of a human being is not independently criminalized in animal
If that were the case, a finding of aggravated
cruelty would be warranted. Now, regardless, of whether one believes
that the defendant should have prevailed in these arguments, I believe
there is little doubt about who was the real victim of the court's
analysis in Garcia, a little goldfish named Junior. Thank you.