AR-News: Pain defined in horse cruelty case

[jim robertson]

Pain defined in horse cruelty case
Court reinstates convictions; a victory for animal rights

By KATHY GEORGE
SEATTLE POST-INTELLIGENCER REPORTER

The two old horses were so underweight that their ribs, bones and jaws stuck 
out. They had bad teeth and little food or shelter where they were kept in 
southeast Pierce County, court documents say.

But prosecutors had trouble proving that these horses actually suffered pain 
-- a requirement for convicting someone of animal cruelty.

Now, in a victory for animal rights advocates in Washington, the state Court 
of Appeals in Tacoma has established for the first time just how much pain 
is needed for a cruelty conviction.

The answer is: not much. The court said "mild discomfort" was enough to 
convict the keepers of the bony horses, and it defined pain as everything 
from "mental uneasiness" and "dull distress" to "unbearable agony."

"This is landmark," said Adam Karp, founder and board member of the 
Washington State Bar Association's animal-law section and an adjunct law 
professor at Seattle University. "It will guard against psychic pain as well 
as physical discomfort."

The court's broad definition of pain will make it easier to convict people 
under the second-degree animal cruelty law, said Alicia Burton, the Pierce 
County deputy prosecutor who handled the horse case.

That law makes it a misdemeanor to knowingly or negligently cause 
"unnecessary" pain in an animal, but does not define pain.

Some say the court opinion went too far.

"I was looking at the same evidence and saying, 'It's not enough,' " said 
Brian McLean, the Kent attorney who represented the horses' keepers, Vern 
and Katonya Zawistowski of Graham. "The question is, how far do we take 
this?"


McLean said there was no evidence that his clients intended to inflict pain. 
In fact, "they wanted to provide ... a loving home" for their horses, he 
said.

He said that instead of treating the horses' keepers as criminals, "I think 
you provide them resources and work with them and give them an opportunity 
to do better."

The case began in May 2001 when a Pierce County Humane Society investigator 
went to check out neighbors' reports about the condition of the 
Zawistowskis' horses. The investigator, Walter Nicholson, worried about 
their weight and recommended better feeding, court records say.

Two weeks later, veterinarian Linda Hagerman examined the horses and found 
two of them, Princess Tarzana and Silver, severely underweight and with 
split or misaligned teeth. Princess Tarzana, a 27-year-old white mare who 
had lived there only a few weeks, also had a small melanoma cancer of the 
mouth.

On the vet's recommendation, authorities seized Princess Tarzana, Silver and 
three other horses under the couple's care, Nip, Tuck and Party Time, court 
records say.

A Pierce County District Court jury convicted the couple of second-degree 
animal cruelty in connection with Princess Tarzana and Silver.

But a Superior Court judge threw out those convictions, saying there was not 
enough evidence that the horses suffered pain. When that happened, "we 
stepped back and said, 'How do we ever prove these cases?' " said Burton, 
the prosecutor.

Also because of that ruling, the horses were returned to the Zawistowskis in 
October 2001, said Tom Sayre of the Humane Society.

McLean argued that, although Hagerman said she "imagined" that an underfed 
horse would feel hunger, there was no evidence that the two horses actually 
were miserable, malnourished, sick or in pain.

In reinstating the convictions this month, the Court of Appeals said the 
jury reasonably inferred that the underweight horses were extremely hungry 
and therefore felt at least mild discomfort. More important, the court said 
causing such discomfort violated the law against inflicting "unnecessary 
pain" on animals.

"This is good news for animals," said Sayre of the Humane Society.

"We prefer working with the owners," he said. "But if an animal is 
suffering, then we'll do ... what's right for the animal."

McLean said the horse keepers are considering appealing to the state Supreme 
Court.

P-I reporter Kathy George can be reached at 206-448-8334 
kathygeorge at seattlepi.com

------------------------------------------------

"I hold flesh-food to be unsuited to our species."
Mahatma Gandhi (1869-1948)

"Peace cannot be kept by force. It can only be achieved by understanding."
Albert Einstein

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