- In Georgia, neither ownership of property on which victim animal is found, nor ownership of an animal is a material element of the offense of cruelty to animals.1
- Georgia courts provide a broad definition of owning or caring for an animal that establishes a strong duty of care.
- A defendant may be prosecuted if he or she “intentionally exercised custody, control, possession, or ownership of an animal.”2 As such, if defendant had custody or control over the animal’s welfare, he/she would be responsible regardless of ownership.3
- To show such custody or control, the prosecuting attorney may present veterinary records in the defendant’s name, adoption information, purchase of food records in the defendant’s name,4 or any other available evidence showing that the defendant was the actual caretaker.
- In Georgia, a person is not prohibited from “[d]efending his or her person or property, or the person or property of another, from injury or damage being caused by an animal” or “[i]njuring or killing an animal reasonably believed to constitute a threat for injury or damage to any property, livestock, or poultry,” so long as “[t]he method used to injure or kill such animal [was] designed to be as humane as is possible under the circumstances.”5 Because the language of the statute requires that the defendant’s behavior be unjustifiable, a defendant charged with cruelty to animals has a statutory justification defense in addition to traditional defenses to criminal offenses.6
- Whether the injuring or killing of an animal is justifiable is a jury question. When a defense of justification is based on the protection of person or property, the danger to such person or property must be an “imminent, real or apparent necessity.”7 To counter this defense, the prosecuting attorney may introduce evidence that the killing was not justified (testimony of the owner of the animal and witnesses regarding the animal’s lack of aggression,8 evidence that the animal was provoked, etc.). The defense would not be appropriate in a situation where a defendant went inside the house to retrieve a gun or other weapon to harm an animal outside of the house. Again, the threat must be “imminent.”
- The prosecuting attorney may also attack the method used as inhumane under the circumstances9 (testimony of experts regarding commonly accepted practices to establish that the animal was killed/injured in a manner that does not meet societal and veterinary standards for humane killing).
- To counter this defense, the prosecuting attorney may introduce evidence linking the defendant and the victim animal, including witness testimony (veterinarians, family members, neighbors, and community members) and forensic evidence.
- Georgia law focuses on objective evidence rather than the subjective mens rea of the defendant. Georgia law looks at the harm caused to the animal, thus limiting the use of “training defenses”.10
- The prosecuting attorney may introduce an expert testimony to show that the defendant’s actions were not acceptable discipline or training method.
- Voluntary intoxication is not a defense to criminal conduct in Georgia.11
- A veterinary expert testimony would be necessary to distinguish between accidental and non-accidental injury. Absent direct disclosure by witness(es) regarding intentional infliction of injury, certain signs and symptoms may raise suspicion of non-accidental injury: delay in seeking medical care for the animal, the recount of events leading to and/or the mechanism of injury by the owner are implausible or inconsistent, lack of concern by the owner, abnormal conduct of the animal.
- To refute claims that the caretaker could not afford to feed his/her animals or take them to the vet, the prosecuting attorney may present evidence demonstrating the community resources that would have been available to the owner with limited resources: low cost or free veterinary services, spaying and neutering, vaccinations, and/or re-homing at the local animal shelter to avoid abuse/neglect.
- Similarly to the lack of financial resources, if the owner is disabled and can no longer take care of animal, the prosecuting attorney may demonstrate the community resources that would have been available to the defendant to avoid neglect situation.
- Ignorance of law is not a valid defense in the State of Georgia.
- Whether an individual or an institution, a hoarder is a hoarder is a hoarder. The difference between a hoarder/fraudulent rescue organization and legitimate shelter, rescue or sanctuary is that the bona fide caretaker does not cause the animals to suffer from lack of veterinary care, malnutrition, starvation, untreated diseases, injuries, poor sanitation, overcrowding and intensive confinement. Evidence to this extent will help to refute the pretense of operating as an animal shelter or rescue organization.
- Circumstantial evidence may be used in prosecutions under O.C.G.A. § 16-12-4.12
- Georgia law does not recognize this kind of “mercy killing” for one’s own pets.
1 O.C.G.A. § 16-12-4 (2014); Favors v. State, 756 S.E.2d 612, 614 (Ga. App. 2014); Tiller
v. State, 218 Ga. App. 418 (1995); Miller v. State, 179 Ga. App. 217 (1986).
2 O.C.G.A. § 16-12-4.
3 Tiller v. State, 218 Ga. App. 418 (1995).
4 Favors v. State, 756 S.E.2d 612 (Ga. App. 2014).
5 O.C.G.A. § 16-12-4(f) (2014); Futch v. State, 314 Ga.App. 294, 295 (2012).
6 O.C.G.A. § 16-12-4(b) (2014).
7 Readd v. State, 164 Ga.App. 97, 99 (1988).
8 Futch v. State, 314 Ga.App. 294, 296 (2012); Stonecypher v. State, 17 Ga. App. 818
(1916); Nel v. State, 252 Ga.App. 761, 765 (2001).
9 In re C.B., 286 Ga. 173 (2009).
10 O.C.G.A. § 16-12-4 (2014).
11 O.C.G.A. § 16-3-4 (c) (2014).
12 Willis v. State, 201 Ga. App. 182, 410 S.E.2d 377 (Ga. Ct. App. 1991)(evidence of dog
yelping, defendant holding a rifle, and a gunshot hole in the dog’s ear); Chaney v. State,
232 Ga. App. 297 (1998)(evidence of customary cockfighting procedure); Turner v.
State, 275 Ga. 343, 566 S.E. 2d 676 (2002) (evidence that dog was tied to house that was
intentionally burned by defendants); Fort v. State, 274 Ga. 518, 558 S.E.2d 1
(2001)(sound of gun that apparently killed dog); Stephens v. State, 247 Ga. App. 719, 545
S.E. 2d 325 (2001)(evidence that dogs were being bred for dogfighting).