Separating Animals from Abusers After the Criminal Case
What happens to the animals when the cruelty case is over?
Animal cruelty and animal fighting cases are unique in that they are crimes where the "evidence" is often a living, breathing being. Separating the animal victim from its abuser is one of the most important goals of a criminal prosecution.
However, you should not assume that once an animal is seized in a criminal case it will not be returned to its owner when the case is resolved. Laws differ in each state. But in many cases, you may need to help ensure that the animal does not return to a convicted abuser.
This article provides some strategies for separating animals from their abusers.
A voluntary, written surrender of the seized animals by their owner is the best way to ensure that the animals do not return to an abusive situation when the criminal case is over. An effective written surrender of legal rights allows the animals to find new adoptive homes, or to be humanely euthanized when that alternative is necessary due to serious behavioral or medical problems.
Averting lengthy impoundment of animals seized in cruelty and fighting cases also ensures a proper balance between concerns for the humane care of the animals and the fiscal burden suffered by shelters and humane societies charged with providing that care.
Gaining surrender of animals at an early stage in the prosecution benefits the animals and saves the government or the impounding organization money. However, it is a tool that must be employed carefully so that the defendant cannot later claim that the surrender was coerced and therefore not "voluntary." Such challenges can create inconvenient and sometimes quite damaging diversions for the prosecution.
Law enforcement should be mindful of avoiding coercive tactics to secure a surrender and make use of a clear, concise, written surrender form that includes witness attestation to the surrender.
Forfeiture laws accomplish the same result as a voluntary written surrender: relinquishment of the owner's legal right to the animal, freeing it for adoption or other lawful disposition.
Laws vary by state, but forfeiture laws should always prohibit sale of companion animals and sale of any animal for purposes of animal research or experimentation.
Forfeiture of animals seized in cruelty and fighting cases can happen in different ways:
Failure to post security
Security posting laws assist agencies that must provide care for animals while a cruelty or fighting case wends it way through the courts. These laws can also protect animal owners by ensuring that seized animals are not adopted out or euthanized before the case has concluded as long as the owners continue to provide for their care.
In states with security posting laws, the owner's failure to post a bond to cover the cost of caring for animals during the pendency of the criminal case can trigger forfeiture of the animals. Just be mindful that such laws should not permit sale of the forfeited animals or adoption of the animals by a member of the defendant's family or household.
Also note that laws mandating forfeiture upon conviction are preferable to those making forfeiture optional and at the discretion of the judge.
Prosecutors, probation officers, and police should always urge the court to make forfeiture of the animal victims part of the sentence imposed in a cruelty or fighting case. In some states, the court is at liberty to direct return of some or all of the animals to the owner even following a conviction. Laws should be drafted to require forfeiture as part of the sentence in all animal fighting cases and in most if not all cruelty cases.
In a growing number of states, the courts are expressly authorized to issue protective orders in favor of companion animals living in the home of a victim, particularly a victim of domestic violence. The court does this by issuing a temporary or permanent order of protection that includes a directive that the convicted (or accused) person must stay away from or have no contact with the animals living in the household.
The "No Animal" Order
In some states, the court is authorized to make a condition of probation (or of an adjournment in contemplation of dismissal or "ACD") that the convicted person not own, live with, or have contact with animals during a period of time delineated by the court.
In some states, the type of animals that can be subject of the "no animal" order are limited to companion animals.
And, in some states, the length of the "no animal order" is limited to the period during which the court has continuing jurisdiction over the convicted person (e.g. during a period of probation).
In other states, the law requires only that the time period must be "reasonable" or that it must be a period which the court deems appropriate.
Securing a conviction in an animal cruelty or animal fighting case is just part of the goal of the prosecution. Ensuring that animal victims are not returned to their abusers when the criminal case is over is equally important to ensuring a just and humane result in these cases.
The National Center for Prosecution of Animal Abuse, a program of the National District Attorneys Association, has teamed up with the ASPCA and Animal Legal Defense Fund to present a series of webinars to address the needs of professionals who pursue animal abusers.
Stacy Wolf, Esq., is ASPCA Vice President & Chief Legal Counsel, Humane Law Enforcement.