Dear Dr. Brian,
Can you discuss this one?
Appalled Animal Advocate
Dear Appalled Animal Advocate,
The sad, sickening story to which you linked has both important psychological and legal implications. First, the behavior depicted in animal “snuff” films is psychopathic. Finding gratification in the infliction of suffering upon another living thing is sadistic, and it’s profoundly disordered. A distinction must be made, however, between the desire to inflict (or to watch the infliction of) suffering and actually inflicting it. The desire is illness to the extent that it’s involuntary (like a pedophile’s desire to molest children). The actual behavior (like a pedophile’s actual molestation of children), however, is not illness because it’s voluntary in all cases — it’s a conscious, psychopathic choice to gratify oneself by inflicting suffering upon another.
Now, I’m sometimes asked whether and why we should criminalize the intentional infliction of suffering upon animals when the slaughter of animals for food remains legal. The answer is yes, we should criminalize the intentional infliction of suffering upon animals (as at least 48 states have done — such crimes generally fall under state rather than federal jurisdiction), “intentional” being the operative word. When animals are slaughtered responsibly for food, the intent is not to cause or to prolong suffering, and responsible slaughterhouses take measures to minimize animals’ experience and duration of suffering. When, on the other hand, there is an intent to cause suffering, that’s indicative of psychopathy, and undeterred psychopathy virtually always escalates, e.g. mutilations of animals escalate to simple assaults on humans which escalate to sexual and lethal assaults on humans. That’s why we must criminalize the behavior — to deter it and, if necessary, to segregate the perpetrators from the law-abiding public.
So, the makers of animal “snuff” films are psychopathic criminals who belong in cages of their own for sure (and can be put there under the existing laws of almost every state). The question then becomes whether to criminalize even possessing such films, as in the case of child pornography (and here, there is federal jurisdiction because trafficking in such images implicates interstate commerce). Certainly, the same rationales apply — consuming the films essentially makes the consumer an accessory after the fact to the crimes depicted therein, and watching such crimes has high potential to escalate into committing similar (and worse) crimes. At the same time, our nation’s founders wisely enshrined broad freedom of speech in our Constitution with a First Amendment which makes it extremely difficult for our government to prohibit the dissemination of ideas, even ideas that are widely considered vile.
From a legal perspective, I think that a ban on possessing animal “snuff” films could pass constitutional muster, as has the ban on the possessing child pornography, but it may need to be drafted more narrowly to address some potential problems that aren’t as salient in the case of child pornography. For instance, sexual acts performed on or by children under the age of consent are considered criminal acts throughout the civilized world, and both the filming of such acts and the possession of such films are relatively easy to recognize and criminalize. At the same time, it’s highly unlikely that a filmmaker is going to be prosecuted for making a documentary about poverty in Africa, nor is a consumer likely to be prosecuted for possessing it, even if there are some naked children in it.
My only concern about criminalizing the possession of animal “snuff” films in parallel fashion is the (perhaps) greater potential for confusion between depictions of legal and illegal activities. For instance, I think it’d be relatively easy to recognize the films described in the story to which you linked as depictions of crimes, such that their possession would be clearly illegal. At the same time, I wonder whether security-camera footage from a meat-packing plant would be as easy as the aforementioned African documentary to distinguish as a depiction of legal activity, such that its possession would be clearly legal. Don’t get me wrong, as a proud owner of a rescue dog, I’m all for criminalizing the possession of animal “snuff” films. As a legislative consultant, though, I understand the difficulty of drafting legislation that criminalizes possessing depictions of acts performed with intent to cause suffering while permitting possessing depictions of very similar-looking acts performed with no such intent.
And just in case you’re wondering, even if a federal ban on the possession of animal “snuff” films is ultimately upheld, there will still be no practical way to prevent the recreational viewing of depictions of harm to animals that remain legal under that statute, e.g. security-camera footage from a slaughterhouse, despite the potentially-escalating sadism that such viewing would suggest (because it would be practically-impossible to disprove a person’s stated reason for viewing such images, e.g. “I was just trying to learn what goes on in slaughterhouses”). In the end, prioritizing and balancing competing rights is the province of the judiciary, and my guess is that the federal ban on possessing and viewing animal “snuff” films will continue to work its way up through the court system, probably eventually all the way to the U.S. Supreme Court. As a lawyer, I know that the slow pace of that process can be frustrating, but I also know that we have to handle both our First Amendment and our animals with care. Thanks for your letter and link.