The Study of Animal Cruelty: How Criminal Law Fails

Guest contribution from Joanna Han

07/18/2022

An unpublished study shows that cruelty to pigs, cattle, and chickens is rarely punished. Explains how both animal welfare criminal law and law enforcement agencies fail Joanna Han.


At first glance, the German criminal law for animal protection looks really good. It applies indiscriminately to domestic animals and so-called farm animals. According to Section 17 No. 1 of the Animal Welfare Act (TierSchG), anyone who kills an animal without a valid reason is liable to prosecution. It is also an offense to cause animals severe pain or suffering due to cruelty or for a longer period of time (Article 17 No. 2 of the TierSchG). TierSchG understands pain as physical disabilities, and suffering can also be ‘(the animal) mentally felt’ and should be assumed in particular if species-appropriate behavior is excessively restricted.

However, reports and videos showing the cruel treatment of animals are piling up. Pigs that are slaughtered without anesthesia, cows that are pulled from the conveyor by their legs by cable winch and chickens that are kept in the tens of thousands in the smallest of spaces. 700 million animals are slaughtered in Germany every year. One might expect criminal prosecutions for animal cruelty to take place on a regular basis.

According to law enforcement statistics for 2020, only 1,027 people have been convicted of animal welfare offenses, and 95 percent of them have received a fine. Statistics don’t even differentiate between private and commercial pet owners. Rarely can any judgments be found, especially with regard to the animals used in agriculture.

In conjunction with the criminal attorney, Dr. Elisa Hoffen, I investigated the question of how to prosecute animal welfare crimes in agriculture as part of a pilot study based on investigative files and expert interviews.

Cruelty to commercial animals is rarely prosecuted

The results are unequivocal: a large number of crimes against the so-called livestock have not been judged. The empirical study indicates that criminal law for animal welfare is not often or adequately applied in practice. In the field of keeping, transporting, and slaughtering so-called livestock, charges or convictions for animal welfare crimes are extremely rare. If penalties are imposed they are very small. In only one of about 150 cases examined, the offender was sentenced to prison – and this procedure was suspended.

The prosecutor’s office often does not even know the facts of animal cruelty. Since victims of these crimes cannot express themselves, prosecuting authorities rely on official controls and the initiative of animal welfare organizations or individuals. On average, however, a pet owner should only expect to have a routine check-up every 17 years. Official vets often do not refer criminal cases to the prosecutor’s office.

In the event of a criminal complaint, the Prosecutor’s Office closes most of the proceedings. Contact is rarely made between the Public Prosecution Office and the veterinary authorities; No contact was made with animal welfare organizations that provided video material on animal cruelty in the investigation procedures for inquiries. The Public Prosecution did not take any investigative measures, particularly housing inspections.

Compared to pets, it is clear that different criteria are applied in the prosecution of cruelty to animals in the case of so-called livestock. If a dog is left in the car for several hours in the heat, a criminal prosecution will take place; If livestock is moved over days in the heat in violation of several provisions of the Animal Transport Act, the procedure is usually stopped without investigation.

Beautiful words that are hard to understand

The main reasons for the low number of convictions due to Article 17 of the TierSchG are, on the one hand, the careful application of the criminal law for animal protection by the Public Prosecutor’s Office, and on the other hand, the design of the regulation itself.

Most of the crime variables are rarely examined – the killing of animals for no good reason, cruelty to animals and causing suffering. In addition, prosecutors often make excessive demands, especially when it comes to assuming a great deal of pain or suffering.

In one case investigated, criminal proceedings were dropped despite transport workers kicking turkeys and violently throwing them into transport cages. In the dismissal memorandum, the Office of the Prosecutor stated: “In connection with the filmed release, experts estimate, it is possible that the animals experienced severe pain when placed in enclosures, for example due to broken wings. Or hematoma, but this is not entirely certain. The basis of the video recordings that prove the extent to which this may result in significant long-term suffering.”

The current structure of animal welfare criminal law enables and encourages this restricted application of the law. The criminal standard sounds nice, but it’s not very tangible. § 17 TierSchG is very broad and nearly all of the elements of the crime – ‘reasonable cause’, ‘suffering’, ‘significant’, ‘prolonged’, ‘rudeness’ – provide ample room for interpretation.

“(…) Then all farmers will go bankrupt.”

Applicable law requires tangible evidence of animal pain or suffering in individual cases. However, it is often not detected for structural reasons: violations in farms or slaughterhouses are often recorded only on video or in documents from veterinary authorities.

As a result, a number of administrative violations were regularly discovered in the procedures examined, such as overcrowding in stables or failure to treat sick animals. It is difficult to prove the existence of pain or suffering to a particular animal in these cases. The animals can no longer usually be examined because they are either already dead or cannot be distinguished from the large number of animals that are kept. In the case of these administrative violations, it is clear that the animal is also subjected to pain or suffering under criminal law.

In addition, political influence and interdependence are a major reason for the careful application of animal protection criminal law. The proximity between local veterinary offices and companies as well as political pressure on individual official veterinarians contribute to the fact that facts of animal cruelty are not handed over to the prosecutor’s office, but are regulated under administrative orders or informally.

Several official vets surveyed stated that continued punishment for violations of the Animal Welfare Act is seen as a threat to the functionality and profitability of agriculture. The state animal protection official said, “I also experienced that in the case of a senior agricultural official, after the pictures were also posted, the official competent vet would sit on TV and tell me, ‘If I control all the farmers as I should, then all the farmers will go bankrupt.’”

Fundamental reform is needed

If the criminal law for animal protection no longer looks good, but also to be easy to apply, then the provisions should be revised mainly. Criminal liability should no longer be regulated merely by an abstract rule, but should be directly linked to significant violations of the provisions of the Administrative Law for the Protection of Animals, and thus should be designed to be an appendix of Administrative Law. Violation of basic regulations regarding breeding, transportation, and slaughter is so dangerous to animal welfare that repeated and systematic violations are particularly punishable – regardless of whether the suffering of particular animals can be demonstrated at a later time.

For example, anyone who uses faulty stun equipment for slaughter or keeps too many animals in a confined space endangers the animals’ welfare so dramatically that their behavior should be punished. Such concrete criminal law to protect animals enables faster and more effective treatment by prosecutors and official veterinarians: time-consuming expert reports, reconstructed whether animals have suffered during any period of time, are unnecessary. Violations must be clearly documented. There is no room for interpretation, as with Section 17 TierSchG, which can be a gateway to outside interests.

The Criminal Code for Animal Protection Legal Administrative Supplement may not sound very exciting, but it has a real opportunity to make a difference for animals.

Author Joanna Han is a PhD student in criminal law who researches animal welfare crimes. Prior to that, she completed her legal training in offices at the Federal Constitutional Court and the Federal Ministry of Justice.

Yours faithfully, with Professor Dr. Elisa Hoffen’s study “Criminal Prosecution of Animal Welfare in Agriculture – An Empirical Study” to be published soon by Nomos Verlag (Open Access).

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