A blog by spcaLA president, Madeline Bernstein

Sep 26, 2010

Congress Takes Aim at Crush Videos and Misses

I am very concerned about HR 5566, a law that would amend Title 18 of the United States Code, to "prohibit interstate commerce in animal crush videos".  This new law is poised to replace the statute struck down by the Supreme Court in United States v. Stevens as unconstitutional.  In its current form, (and there seem to be only minor amendments on the horizon) HR 5566 will, I fear, be inadequate.

The original Title 18 language was drafted to prevent the marketing of crush videos, a genre of film where women in sexy shoes and lingerie stomp, crush and kill small animals, by prohibiting the creation, sale, or possession with intent to sell, a depiction of animal cruelty. It was asserted that this form of "expression/speech" was not protected under the first amendment.  Animal cruelty included maiming, mutilating torturing, wounding or killing the animal.

Stevens however, was prosecuted under this statute for selling dog fighting videos filmed in the United States and Japan, where such activity was illegal and legal respectively. Additionally, there were others who wanted to show cockfights and other extreme "sports" in the United States as "pay per view" entertainment who also contested the constitutionality of this statute.  They argued, and the court agreed, that the law as written, was too broad and infringed upon protected speech as well as unprotected speech. HR 5566 was introduced to fix all this.

I am afraid it does not. This bill requires that the depiction be obscene. Is it obscene under our current body of law? Is it obscene to stomp in stilettos as well as sneakers? Do both appeal to one's prurient interest? This bill requires conduct in which a live animal is "intentionally crushed, burned, drowned, suffocated or impaled" in such a way that would violate state or federal anti cruelty statutes where the film was created or sold. It does not say maimed, mutilated, killed or tortured which could catch other cruel conduct not specified above. (Since hunting, trapping and fishing is exempted -wounding or killing should no longer be an issue.) This draft requires sale or distribution for financial gain and eliminates possession with intent to sell. (As with narcotics there is an inference of intent to sell based upon the quantity possessed.) What if one possesses a hundred DVD s but no proof of sales is discovered? What if it is filmed and distributed for free? Finally, although the Justices of the Supreme Court suggested in dicta that dog fighting (remember Mr. Stevens) could specifically be included in a redraft and withstand constitutional scrutiny, it was not added to this statute. This worries me as it clearly invites the marketing and showing of animal fighting films in a variety of forums, like "pay-per-view" where actual harm to the pets occurred at some other time and place.

My concern with HR 5566 is that we may end up with a great caption and a poor law with the attendant congratulatory back slapping and high fiving. This practice does fool us a lot of the time. The substance of the bill must be tested against the likelihood of enforcement and the ability to convict under the enacted language. In this case - if the caption and the content don’t match - the ones celebrating will be the criminals.

If you share my concerns please contact Representative Elton Gallegly and ask him to consider reworking some of the proposed language. http://www.house.gov/gallegly/

Sep 19, 2010

Pet Limit Laws - Love Them or Hate Them

The City of Los Angeles is thinking of raising its pet limit law from three to five pets per household. It is spcaLA's position that one abused pet in a home is one too many, and fifty well cared for pets in a home should be fine. It is however, a government animal control custom to limit the number of pets in a household in the name of public safety, health and welfare without any regard to the condition of the animals.

The pet limit number varies from community to community, with, neither a nexus between the existence of a limit and a stated result, nor, a nexus between particular numbers to the same. In other words, the presence of this restriction does not deter animal neglect, unsanitary conditions, bites and bugs, and there is no magic limit number that has been found to effectuate a positive outcome. Three pets per household rule is as arbitrary as a twelve pet limit if the attitude and behavior of the pet owner is the same! It is also a law that tends to be occasionally, selectively and/or never enforced. When spcaLA humane officers discover a hoarder or a puppy mill, the existence of such a law can provide some leverage in the prosecution's case though merely ancillary to the more significant animal cruelty charges. Such laws have also been used to fuel neighbor disputes, retaliate against significant others and as a tool to justify evictions.

It is a very interesting issue. For example, a property owner living next to someone with multiple dogs/cats would argue that his property rights are infringed as the barking/ammonia noises and odors disturbs the quiet enjoyment of his home and reduces the value of his house/condo in the event of a resale. True. The pet owner would assert that pets are legally property, and the government has no right to intrude on an individual's right to own and choose the quantity of his property as long as no one else is harmed. Also true. In my opinion, the actual number is irrelevant, in that one noisy dog can wake up neighbors, and one stinky cat can smell up an apartment floor.  Additionally, eight well behaved dogs and five clean cats present no problem-notwithstanding a violation of a limit law!

The reality is that limit laws do not produce more capable pet owners, do not stop collectors and backyard breeders, and do not deter irresponsible pet owners. There are those who should not be allowed to have one pet, yet they can have three, five or whatever! Conversely, such laws can prevent law abiding citizens from offering a good home to a needy pet, can penalize a person who properly cares for pets and is mindful of neighbors, and can leave more animals in shelters and pounds. This presents the question as to the legitimacy of a law that has no rational relationship to its purpose-public health and safety. How does the government know how many pets each person can care for properly?

It seems to me that the better solution is to vigorously enforce "quality of life" laws, such as nuisance, noise, odor, leash, curb and other animal control ordinances as we can neither command care and compassionate behavior nor bar irresponsibility and neglectfulness. Doing so also focuses on a concrete violation rather than on an inchoate reality.

As the City of Los Angeles debates raising the pet limit from three to five - I first ask - what is so special about the number five? I then say -rather than legislate to the worst elements in our society-let's allow more homeless pets to have a good life and enforce the laws against those who actually mistreat their pets and neighbors alike.

Sep 13, 2010

Bloodless Bullfighting in the Name of Religion must be Stopped

Bloodless bullfighting has been legal in California since 1957 as long as it is "held in connection with religious celebrations or festivals." (California Penal Code section 597m) Absent a religious connection-it is illegal, a misdemeanor and animal cruelty. The bull is in a ring, grabbed and tackled by numerous "grabbers", charged at by bullfighters on horseback, and, of course, decorated spears are thrust at the bull sticking to his neck with an adhesive. Essentially, in front of thousands of screaming fans, a bull is tormented, taunted, humiliated, manhandled, wrestled, and terrified, in the name of religion.

The California Attorney General found that there must be an event of religious significance to permit this conduct and not just a blessing "intended to embrace a sporting event conducted primarily for profit to which a religious rite is merely an adjunct." (64 Ops.Cal. Atty.Gen.151) It is then that a bull is permitted to be treated, in a way otherwise prohibited, in deference to religious freedom. The suffering of the bull is not now considered a compelling state interest sufficient to interfere with a religious practice. Ergo -bloodless bullfighting without religion is a crime. Bloodless bullfighting with religion is a family outing.

How can this be tolerated and encouraged in the name of any religion? What tenet or example of moral conduct is taught by this example? What lesson are the children learning from this spectacle? Do they idolize the bull fighters and practice on their own pets? Do they wonder about a religion that condones this type of violence? Do they believe that if their parents and religious leaders encourage this behavior, it is worth emulating? If these children were at a cockfight their parents could be charged with endangering the welfare of a child. In this scenario, men torturing a bull before cheering fans offer them a lesson - a lesson that ultimately rewards their loss of empathy and lauds their desensitization to the anguish of the bull.

It is time that we, as a humane and evolved society, repeal this exemption. It is time that we view the prevention of cruelty to animals as a compelling state interest - even a moral imperative. It is time to stop this.

Sep 6, 2010

More about eggs - free range/roaming not the answer

Many people worried about the egg situation and salmonella are looking to "free range" and/or "free roaming" eggs as a solution. Unfortunately, they are not the panacea for concerns in the egg industry.

In the United States these labels mean very little. Free range requires "access" to the outdoors. There is neither a requirement as to length of time outside nor that the hens actually go outside. "Access" can merely be opening a window or door for a few minutes each day - weather permitting! Hens can still be debeaked and forced to molt, and the "range" can be filthy, soggy and full of poop. Ironically, salmonella is a huge concern as rodent control is difficult and the bacteria are thought to come from rat and mice droppings.

"Free roaming" or "cage free" simply means - no wire cages. It can mean that the hens are crammed inside, one on top of the other with no requirement that they have access to the outside! In some cases a cage might give them more room! They are permitted to be debeaked, forced to molt, and again, salmonella is an issue.

Other labels such as "Certified Organic" have more to do with what they are fed rather than the humaneness of the husbandry. Even labels containing the word "humane" can be obtained when debeaking and tiny cages are the norm.  In any event, it is not a pretty picture. Unfortunately, some of the most humane producers, (certified as "Animal Welfare Approved") that allow natural behavior (including molting), regulate density, and prohibit debeaking, have very few, if any, contracts with supermarkets!

Just thought you would want to know.