Full Title Name:  Cropping and Docking: A Discussion of the Controversy and the Role of Law in Preventing Unnecessary Cosmetic Surgery on Dogs

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Amy L. Broughton Place of Publication:  Michigan State University College of Law Publish Year:  2003 Primary Citation:  Animal Legal & Historical Center 0

This article describes the procedures of tail docking and ear cropping, the history of the procedures, their place in modern veterinary care, and discuss the positions of advocates both for, and against these procedures. Additionally, this article explains the ways in which the law is being used internationally in preventing these unnecessary procedures, and the ways that current and future American anti-cruelty laws can be used to put a stop to this epidemic.

I. Introduction

Canine cosmetic surgery has reached epidemic proportions. Over 130,000 puppies undergo an unnecessary cosmetic surgery in the United States each year. This article will describe the procedures of tail docking and ear cropping, the history of the procedures, their place in modern veterinary care, and discuss the positions of advocates both for, and against these procedures. Additionally, this article will explain the ways in which the law is being used internationally in preventing these unnecessary procedures, and the ways that current and future American anti-cruelty laws can be used to put a stop to this epidemic.

II. The Procedures

A. Docking

Tail docking refers to the amputation of all, or part of an animal's tail, using a cutting or crushing instrument. Although a variety of animals including cows, piglets, and sheep are subject to this procedure, this discussion will focus on the amputation of dogs' tails (vertebral column) for cosmetic purposes. 1 Approximately seventy breeds of dog are subject to tail docking. 2 In the United States, depending upon the jurisdiction, a veterinarian may not be required to dock a dog's tail; as such, dog breeders and dog owners without veterinary training often undertake this procedure. 3 Tails are usually docked when a puppy is two to five days old, and an anesthetic is not generally administered. 4 Two methods are generally used:

a) "the tail is clamped a short distance from the body and the portion of the tail outside the clamp is cut or torn away," 5 or

b) a small rubber band is placed on the tail at the desired length preventing the flow of blood to the remainder of the tail which falls off after approximately three days.

A dog's tail is comprised of muscles, tendons, nerves, cartilage, and bone - all of which are severed during a docking procedure. 6 The segment of the tail removed may comprise one-quarter to one-third of the total length of the dog. 7

B.  Cropping

Ear cropping refers to the practice of reshaping a dog's ears by surgically removing the pinna, or "floppy part" of the ear. Generally, approximately one-half of the ear is removed. Ears are cropped when a puppy is between nine and twelve weeks old. Because ear cropping is a surgery and a general anesthetic is required, the procedure is generally performed by a veterinarian, although breeders and dog owners often undertake amateur attempts of the ear cropping procedure. Once the pinna is removed, the veterinarian then tapes the ears in an erect position to a splint or bracket. Post-operative pain medication is rarely provided, though the ears have blood flow and are comprised of cartilage and nerves. 8 A series of follow-up visits are conducted during which the ears are handled, stretched along the edges, and re-taped. 9 No scientific studies have been conducted to establish whether docking and cropping and docking have any medical value. 10

III. History

Tail docking and ear cropping date to the early Romans, who believed that the practices prevented rabies. 11 During the European Middle Ages, through the end of the 18th century, Lamarck's theory of acquired characteristics 12 was widely accepted. As such, people believed that by docking the tails of the parents, "the new born puppies would look like their parents" and also exhibit short tails. 13 In addition, long-tailed or floppy-eared dogs used for hunting, fighting, or watching flocks were at a greater risk of injury associated with those activities. As such, tails were docked and ears cropped to reduce the number of places another dog or other animal could grab. The owners of working dogs often believed that tail docking reduced a dog's maneuverability, thereby discouraging the dog from chasing game, 14 while the other dog owners often believed that tail docking resulted in a stronger back and increased speed. 15

Finally, various tax schemes may have accounted for the proliferation of tail docking. In some areas, dogs used for work were not taxed, so the owners of such dogs would dock the tails to indicate that the dog was used for work and not subject to tax. 16 In other areas, farmers were taxed according to the length of their dogs' tails, so docking was used to reduce the tax liability. 17 Moreover, sport hunting was considered to be reserved for the wealthy nobility, and it was believed that only long-tailed dogs were suitable for hunting. As such, the owners of long-tailed dogs were required to pay a high tax and tail docking became a practice of the commoners. 18

IV. The Modern Controversy

On July 9, 1999, the American Veterinary Medical Association released the following:

Ear cropping and tail docking in dogs for cosmetic purposes are not medically indicated nor of benefit to the patient. These procedures can cause pain and distress, and as with all surgical procedures, are accompanied by inherent risks of anesthesia, blood loss, and infection. Therefore, veterinarians should counsel dog owners about these matters before agreeing to perform these surgeries. 19

The statement was a lukewarm response to an increasingly heated debate between pro-cosmetic procedures groups and anti-cosmetic procedures groups. Although the United States has largely remained silent, the issue is gaining worldwide prominence. Groups such as the Council for Docked Breeds and the Society for the Promotion of Undocked Dogs, or Vets for Docking and Vets Against Docking are unable to compromise. The issue is largely centered on whether docking and cropping constitute "cruelty." If an activity is deemed "cruel" by the populous, then it will likely be outlawed. Similarly, a society's position on whether docking and cropping are cruel will shape the way the procedures will be dealt with legally.

Advocates for docking and cropping compare the procedures to neutering or spaying, and surmise that tail docking and ear cropping are simply practical animal management techniques that should remain available to owners, breeders, and veterinarians. Anti-docking and cropping groups compare the procedures to the amputation of a healthy human finger, noting that the procedures are painful, unnecessary, and often lead to medical problems later in life. There are several key points of contention:

1. Tail Damage.   Advocates of docking and cropping state that both procedures enhance a dog's safety; hunting dogs that work in "thick vegetation and brambles" have a very high risk of injury to their tails. 20 Similarly, some breeds that must work in confined spaces are subject to similar types of tail injuries. 21 These injuries are very painful and difficult to treat. Supporters of tail docking point to the fact that in Sweden, the number of tail injuries amongst previously docked breeds rose from 38% to 51% since docking was banned in 1989. 22

Conversely, anti-docking advocates note that the most popular breeds for hunting are Labs, Kelpies, Border Collies, and Cattle dogs - none of which traditionally have docked tails. The majority of dogs in docked breeds are kept only as pets, are not used for hunting or working, and are therefore, not at a great risk for tail injuries. 23 In addition, statistics concerning tail injuries are often misleading, as not all tail injuries require a full amputation. Many injuries require only a cleaning and natural healing. In his report 'Cosmetic Tail Docking of Dog Tails," veterinarian Robert Wansborough notes that a seven-year survey in Edinburgh, which controverted the Sweden study, revealed "insufficient evidence of statistical significance to suggest that there is a possible association between tail injuries and an undocked tail . . .." Similarly, he notes that of 2350 veterinary consultations between December 1991 and September 1992 at the North West Animal Emergency Clinic in Sydney, only three involved tail injuries, and all three of those cases involved tail docking. 24

2. Hygiene .  Tail docking advocates surmise that long-haired breeds are docked to prevent the hair around the base of the tail from collecting feces which, in addition to being generally unpleasant, can lead to flies, maggots, or other hygienic problems. 25 Similarly, proponents of ear cropping argue that cropping reduces the likelihood that a dog will contract ear infections, as a cropped is exposed to light and increased airflow. 26 A serious veterinary study, however, has never been conducted to prove this theory. 27

Anti-docking supporters again, cite an inconsistency: breeds with the potential for similar hygienic problems, such as Collies or Afghans, are generally not cropped or docked, and regular grooming or clipping of potential problem areas can prevent problems. 28 Similarly, breeds such as rottweilers and boxers, which are docked, have very short hair, so the potential for hygiene problems is very minimal. Cropping and docking are effectively proactive efforts to excuse a dog owner from conducting routine care of the animal.

3. Breed Standards.   The Council of Docked Breeds states that breeds that have been docked over many generations were selected for specific qualities, none of which includes the tail. As a result, if left undocked, these breeds would not have "good tails" and breeders would be left with a diminished number of sires and dams to choose from, thereby causing a genetic bottleneck and possibly causing the complete extinction of some breeds. 29

Anti-docking supporters do not specifically address the potential for extinction of certain breeds if tails are not docked, but this theory lacks a sound scientific basis. First, this theory exhibits a very weak understanding of evolution, and seems to echo the wholly discounted theory of acquired characteristics. Second, if breeders found the pool of sires and dams to be "diminished," then it would, again, be the result of their human desire to determine what the breed should look like, as opposed to what the breed actually looks like. In actuality, breeders' choices would be no more reduced than they had been prior to a tail-docking ban. To this end, veterinarian John Baxter states,

[p]edigree dogs are man-made. People have decided which dog will mate which. There's nothing wrong with this, as long as you realise your responsibility and don't just breed for the characteristics you want . . . [w]e have to have responsibility and vision in breeding animals - a wee bit of humility wouldn't go amiss. 30

4. The Importance of Having a Tail.   Advocates of docking such as Vets for Docking, quite simply state that the tail serves no actual function in locomotion or communication. 31 Specifically, they note that communication in dogs is conducted primarily by smell or facial expressions, and to a lesser degree - vocalizations. 32 J.L. Holmes, author of the "Vets for Docking Submission" states that a "a dog's tail is not an essential part (for it is patently obvious that a dog can live quite happily without a tail, both physically and emotionally.)"

While it may be true that amputees can live full and happy lives, there is substantial disagreement about a dog's need for a tail. Robert Wansborough notes, "the tail is not merely an inconsequential appendage. It is an anatomically and physiologically significant structure which has many biological functions that should not be underestimated." 33 For example, "the tail acts as a counterbalance when the dog is leaping, walking along narrow structures, or climbing." 34 Wansborough also notes that the tail plays an important role in defecating, and that the muscles used to wag the tail may also strengthen the perineal area and prevent perineal hernias. 35

In addition, the dog uses the tail to signal many emotions and intentions. As a result, tail docking can adversely affect the interaction of a dog with other dogs or with humans. Furthermore, the tail enhances human-dog interactions, as the tail is the most obvious means of communication between human and dog. 36 Finally, the absence of a tail may cause a dog to be the victim of attacks by other dogs due to an inability to communicate. 37

5. Pain.   For most, this is the critical issue in determining whether an activity constitutes cruelty. To this point, the majority of the discussion has focused on tail docking. Pain, however, is particularly relevant to the ear cropping discussion. First, with regard to tail docking: tail-docking advocate Professor Dr. R. Fritsch, Leader of the Clinic of Veterinary Surgeons at Justus-Lieberg University in Germany, maintains that at the age of two to five days, a puppy's nervous system is not fully developed and the conscious feeling of pain is unlikely at that stage. 38

Similarly, with regard to ear cropping, veterinarian Wendy Wallmer states that:

Individual dogs, like people, have different levels of pain tolerance. In general, boxers are very pain tolerant and most puppies return home from an ear crop will be eating normally and playing just as they did before surgery within hours of the procedure. Although the ears are decidedly uncomfortable if touched excessively or bumped, this discomfort usually subsides within a few days of the surgery. Some veterinarians will offer pain medication for those individuals who seem to have a low pain tolerance. The skill and experience of the surgeon also have an effect on the discomfort level after the procedure. 39

Advocates of ear cropping tend to downplay the amount of pain experienced by the dog. It is important, however, to note that the vast majority of American veterinary schools to not teach ear cropping or tail docking. 40 As a result, veterinarians must learn this procedure "on the job" which would lend itself to causing even more pain. Additionally, in large "puppy mills," breeders will simply cut puppies ears with scissors, and it is unlikely that this amateur procedure is conducted with an anesthetic or "post-operative" pain relievers. 41

Moreover, anti-docking and cropping supporters note that anatomically, all mammals (including humans and dogs) have the same neurotransmitters, receptors, and higher brain functions. 42 So while puppies may respond differently to pain, there can be no doubt that they feel pain similarly to humans. To this end, veterinarian Jean Hofve notes, "it is well documented in the human medical literature that newborns do feel pain, and neonatal pain management is taken seriously . . . 'even very prematurely born infants respond to pain.'" 43 Moreover, anatomical studies have shown that the number of nerve endings in a newborn puppy may equal, or even exceed that of adult dogs. 44 This means that a puppy will experience pain in amounts equal, or even greater to those experienced by the adult dog.

In addition, there is the possibility of pathological pain. 45 Pathological pain refers to the "sensation perceived from an inflammation that accompanies tissue injury." 46 A good example is the "phantom" pain experienced by an amputee in a leg that is no longer there. Moreover, since the brain is still in development in puppies, a trauma of that magnitude may affect the development of the dog's "final architecture of the pain system," 47 which could affect the dog for the whole of its adult life. Although animals tend to be more stoic than humans, puppies do exhibit whimpering and an "escape response" after tail docking. 48 This indicates that the puppies are indeed feeling the pain of losing an appendage. Finally, as with any amputation, there is a serious risk of the formation of growths composed of nerve cells and fibers or a growth composed of scar tissue. 49 In both cases, the growths are painful.

For ear cropping, although the procedure is generally conducted while the dog is under an anesthetic, the dog awakens to sore ears with raw edges closed by sutures that are taped and held up by a bracket. In addition, the puppy is subjected to a series of post-operative visits where the ear is stretched, reshaped, and re-taped. 50 Most veterinarians do not prescribe pain medication. In some cases, if a dog's ears do not stand up after the crop, the dog will be subjected to a second crop. 51 As with any surgery, there are inherent risks associated with anesthesia and the possibility of post-operative infection such as gangrene, septicemia, and meningitis. 52

The reasons for ear cropping and tail docking are antiquated and no longer relevant to modern veterinary care. As such, these procedures are purely cosmetic and for the pleasure of the human owner/custodian - and not the dog. These practices are propagated by organizations such as the American Kennel Club (AKC) which requires ear cropping, tail docking, or dewclaw removal for certain breeds to conform to the AKC's breed standards. To this end, the AKC has established exacting requirements for what each dog should look like, and assigns "faults" for physical characteristics that do not conform perfectly to the established AKC breed standard. In addition, the AKC seems concerned only with the "look" of a dog, which, in addition to unnecessary canine cosmetic surgery, has lead to serious problems resulting from inbreeding. 53 Increasingly, animal welfare and animal rights groups are speaking out against ear cropping and tail docking. The World Small Animal Veterinary Association released this statement:

The WSAVA considers amputation of dogs' tails to be an unnecessary surgical procedure and contrary to the welfare of the dog. The WSAVA recommends that all canine organizations phase out any recommendations for tail amputations (docking) from their breed standards. The WSAVA recommends that the docking of dogs' tails be made illegal except for the professionally diagnosed therapeutic reasons, and only then by suitably qualified persons such as registered veterinarians, under conditions of anesthesia that minimize pain and stress. 54

Similarly, the Association of Veterinarians for Animal rights released the following position statement:

The Association of Veterinarians for Animal Rights is opposed to various surgeries done to meet "breed standards" or to correct so-called vices. Procedures such as ear cropping, tail docking, or debarking in dogs, or declawing in cats are unacceptable because of the suffering and disfigurement they cause an animal are not offset by any benefits to the animal. If such a procedure can be shown to be necessary for medical or humane reasons, then it is permissible. The "breed standards" for dogs must be altered to allow the animals to be shown without being surgically mutilated. 55

These position statements reflect a call to ban cosmetic surgeries on animals. In the scheme of animal rights issues, this may appear unimportant - but it must be noted that over 130,000 puppies undergo these painful procedures in the U.S. each year. 56 Currently, however, because the Animal Welfare Act , and other legislation designed to promote animal welfare does not specifically address this issue, and because ear cropping and tail docking are currently culturally acceptable in the United States, it is difficult to prosecute dog owners for subjecting their animals to these procedures.

V. The International Perspective

Many different countries have responded to this epidemic in a variety of ways. For example, the Canadian Veterinary Medical Association released a statement indicating that it opposes the "surgical alteration of any animal, for purely cosmetic reasons . . . includ[ing] tail docking . . . ear cropping . . .." 57 Similarly, the Council of the Royal College of Veterinary Surgeons (UK) ruled cosmetic docking to be "unethical." 58 The Australian Veterinary Association has consistently renewed its call for a ban on cosmetic surgery for dogs. Dr. Lindy Scott, animal welfare consultant for the AVA stated that the "mutilation of animals for cosmetic (non-veterinary) purposes was strongly opposed by the majority of the veterinary profession." 59 In an even bolder statement, Belgium, Denmark, Finland, Germany, Great Britain, Greece, Italy, Luxembourg, The Netherlands, Norway, Portugal, Sweden, and Switzerland have all banned cosmetic ear cropping and tail docking. 60

Recently, in England, two dog owners and their associate were fined and jailed three months each after eleven rottweiler puppies died during a tail docking procedure. 61 The defendants believed that the dogs would be more "saleable" if the tails were docked, but did not want to pay veterinary fees so they hired Lloyd Earlington, who was not a vet, but who stated that he had experience in docking tails, and who agreed to conduct the operations at a reduced rate. 62 Earlington arrived with Stanley knife blades and a "painkiller" solution. 63 The puppies' spinal cords were left exposed by the procedure and two main arteries had been left exposed in several cases. 64 Two puppies died almost immediately from the pain and another three were in such shock that they had to be put down soon after the docking. 65 The remainder of the litter died within three weeks. 66 Because tail docking (by non-veterinarians) is prohibited in Great Britain, the prosecution was a success.

VI. The Domestic Perspective

In the United States, however, although this procedure may constitute cruelty under many American statutes, successful prosecutions of tail dockers are unlikely. For example, in People v. Rogers , 67 a defendant who docked a puppy's tail using a rubber band was charged with violating an anti-cruelty statute, but was not convicted. The defendant sold the puppy to a neighbor who became concerned about the condition of the tail; the infection of the tail was so severe that the puppy was ultimately euthanized. The criminal charges, however, were dismissed because the court found that the language of the anti-cruelty statute 68 was vague, and that the law did not specifically speak to, or include, tail docking. In the decision, the court stated the following:

There is justifiable maiming or mutilation causing physical injury not specifically prohibited by statute such as the clipping of a dog's ears so long as it is done in a manner defined by statute (under an anesthetic and performed by a licensed veterinarian) and, in this case, the clipping of a dog's tail, The procedure for which the law is silent. The defendant engaged in "docking" or a newborn puppy's tail by putting a rubber band around it. This procedure is no more of a maiming or mutilation causing injury to a dog resulting in similar physical pain or suffering than is found when a dog's ears are clipped. Both are common practices and are not proscribed by the statute. The law requires ear clipping to be done in a certain manner by a veterinarian using a painkiller, while there is no such requirement when a dog's tail is docked. Implicit in the requirement of a veterinarian involvement in ear clipping is the prescription that the procedure is to be done painlessly and that there will be professional care of the wounded area to be sure that during the after care period the dog will be relatively pain free and the wound heals completely. The act of docking a dog's tail does not require professional supervision so an ordinary person of common intelligence is only required to avoid unjustifiable physical pain and suffering. . . The act of docking a dog's tail is not "conduct calculated to cause harm," but rather "essentially innocent conduct" and the "legislature may not validly make it a crime to do something which is innocent in itself merely because it is something done improperly."

The court's comments are interesting because the court first characterizes ear cropping as "maiming and mutilation," acts which are generally prohibited in anti-cruelty statutes. The court, however, does say that it is "justifiable. In reality, these concepts are mutually exclusive; under the cruelty statute an act cannot constitute mutilation and remain legal. In addition, the court states that the pain suffered during a tail docking is analogous to an ear cropping procedure. The court, however, held that since the legislature did not proscribe veterinary care for a docking procedure then it was not for the court to apply a strict interpretation of the anti-cruelty statute. Finally, the court did not even hold that a person who undertakes a surgical procedure should be held to a higher standard.

This court had a real opportunity to hold that tail docking, particularly when conducted by non-veterinary professionals, violated the animal cruelty statute. But it failed to do so, thereby tacitly affirming the practice. This is particularly disturbing in light of the fact that the New York anti-cruelty statute specifically prohibits the maiming or mutilation of animals - and though the court characterized the defendant's actions as such, did not hold him accountable for the life of the young puppy. It did, however, send a message to the legislature that "if the legislature wants to prohibit the practice of docking a dog's tail (as in the case of the horse) or prescribe how it can be done legally (as in the case of clipping a dog's ears), then the appropriate legislation should be passed." 69

Since it is unlikely that the courts will take any proactive steps in the fight against cosmetic surgery on animals, the responsibility falls to the legislature. Although all states have anti-cruelty statues, the statutes are generally broad enough so that a person who crops or docks can dodge prosecution. It is likely that any other cases involving ear cropping or tail docking will be met with outcomes similar to Rogers . The problem is that the laws are not likely to change without there first being a popular movement towards banning these procedures. Chris Lawrence, Chief Veterinarian for the Royal Society for the Prevention of Cruelty to Animals noted that "in the United States, both ear cropping and tail docking are allowed, which puts the U.S. way behind the times." 70

Since 1898, dogs with cropped ears have been ineligible to compete in shows in the United Kingdom under kennel club rules. Conversely, in the United States, AKC breed standards still encourage, or even require, that ears are cropped or tails docked before the dog can be shown. 71

Progress, however slow, is being made. In Maine, the cropping of dogs' ears is prohibited, as behavior constituting unlawful mutilation. In 1999, State Representatives from Georgia propose a bill that would have banned cropping and docking within the state. Although the bill did not pass, it represents a growing grassroots movement opposed to cosmetic cropping and docking. 72

The Michigan Humane Society recently reported two tail-docking cases where the defendants were found guilty. One woman was found guilty of cruelty after allowing rubber bands used for docking to become embedded in the tails of four puppies. In another case, the tail of a four-week old puppy was amputated after his tail had been improperly banded for the purpose of docking. 73

Two recent cases have opened the door to successful animal cruelty prosecutions for ear cropping and tail docking. First, in Hammer v. American Kennel Club , 74 a dog owner brought a discrimination suit against the AKC alleging that a docked tail standard effectively excluded his dog from participating in competitions, as the owner believed tail docking to be a form of animal cruelty. Although the court dismissed the action on the ground that the plaintiff had failed to state a claim for which relief could be granted, 75 and this case had no effect on the previous decision in Rogers , the court did specifically state that the anti-cruelty law could be construed to prohibit tail docking for cosmetic purposes as unjustifiable mutilation. Additionally, in a pointed dissent, N.Y. Supreme Court (Appellate Division) Justice Ellerin states, "Assuming arguendo that the protection of hunting dogs against tail injuries justifies docking the tails of hunting dogs, it is not a justification for docking the tails of non-hunting dogs . . . for the purposes of AKC competitions." 76

Second, in Elisea v. State , 77 an Indiana Appellate Court upheld convictions for animal cruelty and practicing veterinary medicine without a license, after the defendant performed amateur ear cropping procedures on twelve pit bull puppies. The court described the facts in Elisea :

During the procedure, Elisea has an assistant bind the dogs' legs and mouths with tape. Once immobilized, Elisea marked a line along each ear with an eyeliner pencil and, after numbing the ears with ice, but without any anesthetic, cut the dogs' ears with a pair of office scissors. Vaseline and Bactine were placed on each cut, and Elisea told [the dogs' owners] to keep the puppies outside in the cold because their ears would heal more quickly. 78

Because Indiana's animal cruelty statute 79 does not specifically define the terms "torture" and "mutilate," as used in the statute, the court relied on their plain meanings 80 and found that the trial court did not err in finding the defendant guilty of animal cruelty. Furthermore, the court found that "Elisea's act of cutting the puppies' ears was a surgical procedure for which he accepted money" 81 and was a violation of Indiana's prohibition of practicing veterinary medicine without a license. 82 This case is particularly important because owners and breeders can no longer conduct amateur ear croppings and tail dockings under the auspices of a "common amateur practice" that was excluded from the prohibition against animal cruelty or practicing veterinary medicine without a license.

VII. A Modest Proposal

Anti-cruelty statutes must be changed to specifically include cosmetic ear cropping and tail docking. Because laws generally reflect societal attitudes, current anti-cruelty statutes have no "teeth," where ear cropping and tail docking are concerned. The practice must be removed from the mainstream and popular culture in order to affect change. Animal rights activists have been successful in the past, as in anti-fur campaigns, and there is every reason to believe that American society is ready to accept this change.

First, the most influential group, the American Veterinary Medical Association must take a stand against cosmetic cropping and docking. In addition, animal rights groups such as the Humane Society must make this issue a priority to bring about public awareness. Finally, the AKC and other breed-specific organizations must change breed-standards in favor or natural ears and tails, but also disqualify "competitors" with cropped ears or docked tails. Federal and State Congresspersons with animal rights interests must continue to introduce bills that would prohibit cropping and docking.

Until social changes occur, however, it is possible to make progress under existing laws. Even if courts are reluctant to create policy, or engage in what they may feel is judicial activism, courts can uphold cruelty convictions under existing statutes. First, as in Hammer or Elisea , the courts may construe terms (such as maim, mutilate, or torture) to include ear cropping and tail docking. Moreover, if a particular statute contains a "justification" clause, courts may hold that "breed standards" are not justification for mutilation of dogs.

Second, also as in Elisea , courts may construe prohibitions against practicing veterinary medicine without a license to include amateur tail docking and ear cropping procedures. These procedures have often been overlooked as practicing veterinary medicine without a license because they have been socially accepted and commonplace among breeders and owners. Convictions for practicing veterinary medicine without a license for tail docking and ear cropping would establish an environment where those procedures were not considered part of the social norms of breeders and would be viewed as the serious surgical procedures that they are.

One or two highly publicized cruelty or practicing veterinary medicine without a license cases will bring the problem to the forefront. Anti-docking advocates must press for the filing of criminal charges against breeders who conduct tail docking. Once these charges are filed, anti-docking advocates must argue that these procedures do constitute mutilation that is prohibited by most state statutes and that people who practice veterinary medicine without a license are prosecuted to the full extent of the law.

Although preventing ear cropping will take more effort since veterinarians generally conduct it, public awareness can ultimately prevail. Animals have long had the misfortune of being regarded as "property" as opposed to "wards," or other status whereby the custodian has an affirmative duty to protect. Because of their "property " status, animals have no legal rights when they have been mistreated. Humans have legal rights, only to the extent that their property has been damaged, with limited ability file claims for the pain and suffering of the animal. Pet owners must take on a custodial role, whereby the custodian has a duty to protect the animal, and will be subject to prosecution for failing to uphold this duty or for engaging in practices, such as cropping or docking, which are contrary to the welfare of the animal.



1 Robert Wansborough, Cosmetic Tail Docking of Dogs Tails, 74 Australian Veterinary Journal (July 1996), available at http://www.anti-dockingalliance.co.uk/page_4.htm (last visited July 3, 2003).

2 Royal Society for the Prevention of Cruelty to Animals, Tail Docking - The Issues, at http://www.rspca.org.au/campaigns/taildocking.htm  (last visited July 3, 2003).

3 Alice Crook, Cosmetic Surgery in North America and Latin America (World Small Animal Veterinary Association - World Congress 2001) at http://www.vin.com/VINDBPub/SearchPB/Proceedings/PR05000/PR00014.htm (last visited July 24, 2003). Ms. Crook notes that, in some jurisdictions, tail docking by non-veterinarians "constitutes the practice of veterinary medicine without a license and is [therefore,] illegal."

4 Wansborough, http://www.anti-dockingalliance.co.uk/page_4.htm .

5 Jean Hofve, DVM, Cosmetic Surgery in Companion Animals, 31 Animal Issues (Spring 2000), available at www.api4animals.org/doc.asp?ID=563 (last visited July 3, 2003).

6 Wansborough, http://www.anti-dockingalliance.co.uk/page_4.htm .

7 Progressive Animal Welfare Society (PAWS), Cosmetic Surgeries . . . A Cut Above Cruelty?, at www.paws.org/work/factsheet/dogfactsheets/cosmetic.html (last visited July 3, 2003).

8 Hofve, www.api4animals.org/doc.asp?ID=563

9 Id.

10 Allison White, Ear Cropping: The Keymaster Philosophy, at  http://www.keymasterdanes.com/crop.htm (last visited July 3, 2003).

11 PAWS,  www.paws.org/work/factsheet/dogfactsheets/cosmetic.html .

12 Jean Lamarck was a French naturalist who "proposed a theory of evolution . . . which maintained that animals acquired useful characteristics during their lifetime that they then passed on to their offspring. . . . Lamarck maintained, for instance, that the giraffe developed a long neck by stretching to reach tall trees, then passed this characteristic to its young. This theory of inheritance of acquired characteristics was replaced by Charles Darwin's theory of natural selection." Eric W. Weissten, Lamarck, "Lamarck.' Eric Weisstein's World of Scientific Biography, at http://scienceworld.wolfram.com/biography/Lamarck.html (last visited July 25, 2003).

13 Wansborough, http://www.anti-dockingalliance.co.uk/page_4.htm .

14 Rick Beauchamp, Old English Sheepdog: Bobbed Tails and Bonhomie, at http://www.petpublishing.com/dogken/breeds/oldenglish.shtml (last visited July 3, 2003).

15 Wansborough, http://www.anti-dockingalliance.co.uk/page_4.htm .

16 Beauchamp, http://www.petpublishing.com/dogken/breeds/oldenglish.shtml

17 Genie Murphy, Pembroke Welsh Corgi, at www.netpets.com/dogs/reference/breedinfo/submit/pcorgi.html  (last visited July 3, 2003).

18 Arthur Frederik Jones, The Origins of the Terrier Tail, excerpted from Down to Earth Dogs, the Terriers, in MAN'S BEST FRIEND - NATIONAL GEOGRAPHIC BOOK OF DOGS (Merle Severy, ed, 1971) available at www.kerryblues.org/KB/OTAIL.HTML (last visited July 3, 2003).

19 Stop the Crops, The Problem, at http://www.bloomington.in.us/~stopcrop/problem2.html (last visited July 3, 2003).

20 Council for Docked Breeds (CDB), The Case for Docking, at http://www.cdb.org/case4dock.htm (last visited July 3, 2003).

21 Id.

22 Id.

23 Hofve, www.api4animals.org/doc.asp?ID=563

24 Wansborough, http://www.anti-dockingalliance.co.uk/page_4.htm .

25 CDB, http://www.cdb.org/case4dock.htm

26 Sunny DeYoung, Ear Cropping: Correct or Cruel?, at http://www.briarleabouvier.com/ear_cropping.htm (last visited July 11, 2003).

27 Wansborough, http://www.anti-dockingalliance.co.uk/page_4.htm .

28 Id.

29 CDB, http://www.cdb.org/case4dock.htm

30 John Baxter, "A View on Tail Docking By TV Vet John Baxter, at http://website.lineone.net/~scottvet/tailwag/baxter.htm (last visited July 25, 2003).

31 J.L. Holmes, BVM &S, MRCVS, Vets for Docking Submission, at www.vets4docking.org.uk/statement.htm (last visited July 3, 2003).

32 Id.

33 Wansborough, http://www.anti-dockingalliance.co.uk/page_4.htm .

34 Id.

35 Id., See also, John Bower, MRCVS, Response to Royal College of Veterinary Surgeons Challenge to Write a Logically Argued Article About Tail Docking, at http://website.lineone.net/~scottvet/tailwag/bower.htm (last visited July 25, 2003).

36 Id.

37 Id.

38 R. Fritsch, Tail Docking - Pain Felt by Puppies, at http://www.netpets.com/dogs/healthspa/fritsch.html (last visited July 3, 2003).

39 Wendy Wallner, Ear Cropping, Tail Docking, and DewClaws, at http://www.boxerrescuelist.com/InfoPages/ears.html (last visted July 3, 2003).

40 Crook, http://www.vin.com/VINDBPub/SearchPB/Proceedings/PR05000/PR00014.htm  (last visited July 24, 2003).

41 Stop the Crops, http://www.bloomington.in.us/~stopcrop/problem2.html

42 Wansborough, http://www.anti-dockingalliance.co.uk/page_4.htm

43 Hofve, www.api4animals.org/doc.asp?ID=563

44 Wansborough, http://www.anti-dockingalliance.co.uk/page_4.htm

45 Id.

46 Id.

47 Id.

48 Id.

49 Id.

50 White, http://www.keymasterdanes.com/crop.htm

51 Id.

52 Wansborough, http://www.anti-dockingalliance.co.uk/page_4.htm .

53 A good example is the high incidence of hip displaysia among German Shepards that have been bred to exhibit very low hips.

54 World Small Animal Veterinary Association (WSAVA), WSAVA Tail Docking Position Statement, at http://www.wsava.org (last visited July 3, 2003).

55 Association of Veterinarians for Animal Rights, Position Statement: Cosmetic Surgery or Surgery to Correct 'Vices', at www.avar.org (last visited July 3, 2003).

56 Stop the Crops, http://www.bloomington.in.us/~stopcrop/problem2.html

57 CDB, Canadian Veterinary Medical Association - Cosmetic Surgery Position Statement, at http://www.cdb.org/cvma.htm (last visited July 3, 2003).

58 CDB, Tail Docking in the U.K., www.cdb.org/uk.htm (last visited July 3, 2003).

59 CDB, AVA Calls for an End to Cosmetic Tail Docking, at www.cdb.org/ausvet.htm (last visited July 3, 2003).

60 Erin Harty, To Crop and Dock . . . or Not? (June 29, 2002), at http://vetcentric.com/magazine/magazineArticle.cfm?ARTICLEID=1211 (last visited July 3, 2003).

61 Ananova, Three Jailed for 'Barbaric' Puppy Tail Docking (April 26, 2002), at http://www.ananova.com/news/story/sm_576223.html

62 Id.

63 Id.

64 Id.

65 Id

66 Id.

67 703 N.Y.S.2d 891 (2000)

68 In People v. Rogers, the defendant was charged with a violation of the following statute:

NY Agriculture and Markets Law § 353. Overdriving, torturing and injuring animals; failure to provide proper sustenance

A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, maimed, mutilated or killed, or to be deprived of necessary food or drink, or who wilfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any act tending to produce such cruelty, is guilty of a misdemeanor, punishable by imprisonment for not more than one year, or by a fine of not more than one thousand dollars, or by both.

A separate New York law specifically prohibits the docking of horses' tails, and the court finds that since the statute does not specifically prohibit the docking of dogs's tails, the practice is, therefore, tacitly permitted by the legislature. Similarly, since a statute prescribes the method in which ear cropping is to be executed, but does not specifically prescribe the methods by which tail docking shall be executed, then the court does not feel that it is in its discretion to include tail docking as a criminal act. The courts failure to construe the statute as prohibiting tail docking (particularly that which results in the euthanization of the dog) by finding the statute vague, when it is unlikely that the court would come to the same decision if a person had maliciously cut a dog's tail off - without the justification of "docking" for breed conformation.

69 Id. at 896.

70 The Scoop - Dogs in the News, Snips and Snails and Puppy Dog Tails (March 15, 2002), atwww.dogsinthenews.com/issues/0203/articles/020315b.htm (site temporarily unavailable) (last visited July 3, 2003).

71 Crook, http://www.vin.com/VINDBPub/SearchPB/Proceedings/PR05000/PR00014.htm (July 24, 2003).

72 CDB, State of Georgia - Feb. 2, 1999, at www.cdb.org/Georgia.htm  (last visited July 3, last visited 2003).

73 Jean Hofve, Cosmetic Surgery for Dogs and Cats: Tail Docking, Ear Cropping, Debarking,Declawing, (In Defense of Animals), at http://www.idausa.org/facts/cossurgery.html (last visited July 3, 2003).

74 758 N.Y.S.2d 276 (2003)

75 To this end, the court stated, "Dog tail length . . . is not a consideration protected by state or federal anti-discrimination law."

76 Id. (Emphasis added.)

77 777 N.E.2d 46 (2002)

78 Id, at 47.

79 IC 35-46-3-12 Beating vertebrate animal

Sec. 12. (a) This section does not apply to a person who euthanizes an injured, a sick, a homeless, or an unwanted domestic animal if:

(1) the person is employed by a humane society, an animal control agency, or a governmental entity operating an animal shelter or other animal impounding facility; and

(2) the person euthanizes the domestic animal in accordance with guidelines adopted by the humane society, animal control agency, or governmental entity operating the animal shelter or other animal impounding facility.

(b) A person who knowingly or intentionally beats a vertebrate animal commits cruelty to an animal, a Class A misdemeanor. However, the offense is a Class D felony if:

(1) the person has a previous, unrelated conviction under this section; or

(2) the person knowingly or intentionally tortures or mutilates a vertebrate animal.

(c) It is a defense to a prosecution under this section that the accused person:

(1) reasonably believes the conduct was necessary to:

(A) prevent injury to the accused person or another person;

(B) protect the property of the accused person from destruction or substantial damage; or

(C) prevent a seriously injured vertebrate animal from prolonged suffering; or

(2) engaged in a reasonable and recognized act of training, handling, or disciplining the vertebrate animal.

80 The court relied on definitions provided in Webster's Third New International Dictionary Unabridged (1967) and stated, "[t]he dictionary meaning of the word 'torture' is to cause intense suffering [or] subject to severe pain" and " 'mutilate' means to 'cut off or permanently destroy . . . an essential part of the body' and 'to cut up or alter radically so as to make imperfect.'"

81 Elisea, 777 N.E.2d at 49 .

82 IC 15-5-1.1-34 Offenses; veterinarian

Sec. 34. A person who knowingly:

(1) practices veterinary medicine in this state without a license or special permit to practice veterinary medicine issued by the board.

The definition of "practicing veterinary medicine" is in IC 15-5-1.1-2 which states, in part, as follows:

Practice of veterinary medicine" means:

(1) representing oneself as engaged in the practice of veterinary medicine, veterinary surgery, or veterinary dentistry in any of its branches or using words, letters, or titles in a connection or under circumstances that may induce another person to believe that the person using them is engaged in the practice of veterinary medicine, veterinary surgery, or veterinary dentistry;

(2) accepting remuneration for doing any of the things described in subdivisions (3) through (6);

(3) diagnosing a specific disease or injury, or identifying and describing a disease process of animals, or performing any procedure for the diagnosis of pregnancy, sterility, or infertility upon animals;

(4) prescribing a drug, medicine, appliance or application, or treatment of whatever nature for the prevention, cure, or relief of bodily injury or disease of animals;

(5) performing a surgical or dental operation upon an animal; or

(6) administering a drug, medicine, appliance, application, or treatment of whatever nature for the prevention, cure, or relief of a wound, fracture, or bodily injury or disease of animals, except where such drug, medicine, appliance, application, or treatment is administered at the direction and under the direct supervision of a veterinarian licensed under this chapter.

In addition to the actual ear cropping, the court also refers to Elisea's administration of Bactine and Vaseline, and statements concerning keeping the dogs in the cold as further evidence of his practicing veterinary medicine without a license.

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