Proposed Initiated Act No. 1
Proposed by Initiative Petition of the People
THE ARKANSAS ANIMAL CRUELTY ACT
AN ACT AMENDING ARKANSAS LAW CONCERNING CRUELTY TO ANIMALS TO ADD A SECTION ESTABLISHING THE OFFENSE OF "AGGRAVATED CRUELTY TO ANIMALS," TO BE CODIFIED AS ARKANSAS CODE ANNOTATED § 5-62-102; PROVIDING THAT A PERSON COMMITS THIS OFFENSE IF HE OR SHE KNOWINGLY TORTURES, MUTILATES, MAIMS, BURNS, POISONS, OR MALICIOUSLY KILLS, STARVES, OR DISFIGURES ANY ANIMAL; CLASSIFYING AGGRAVATED CRUELTY TO ANIMALS AS A CLASS D FELONY; PROVIDING AN EXEMPTION FOR CONDUCT OTHERWISE AUTHORIZED BY LAW OR LEGAL PRIVILEGE, INCLUDING, BUT NOT LIMITED TO: 1) HUNTING, FISHING, OR ANY OTHER ACTIVITY AUTHORIZED BY AMENDMENT 35 OF THE ARKANSAS CONSTITUTION, THE ARKANSAS CODE, OR ANY ARKANSAS GAME AND FISH COMMISSION REGULATIONS PROMULGATED THEREUNDER, 2) ROUTINE ACCEPTED LIVESTOCK, POULTRY, OR AQUACULTURE MANAGEMENT PRACTICES, 3) THE PROTECTION OF LIVESTOCK AND POULTRY AS AUTHORIZED BY ARKANSAS CODE ANNOTATED § 20-19-102, WHICH ESTABLISHES THE RIGHT TO KILL A DOG THAT HAS KILLED OR IS ABOUT TO CATCH, INJURE, OR KILL LIVESTOCK OR POULTRY, 4) LAWFUL VETERINARY PRACTICES, AND 5) LAWFUL PEST CONTROL PRACTICES; ESTABLISHING A NEW SECTION TO BE CODIFIED AS ARKANSAS CODE ANNOTATED § 5-62- 103, AUTHORIZING THE COURT TO ORDER ANY OFFENDER CONVICTED OF CRUELTY TO ANIMALS, AGGRAVATED CRUELTY TO ANIMALS, UNLAWFUL ANIMAL FIGHTING, OR UNLAWFUL BEAR EXPLOITATION TO UNDERGO A PSYCHIATRIC OR PSYCHOLOGICAL EVALUATION AND COUNSELING OR TREATMENT, AT THE OFFENDER'S EXPENSE; ESTABLISHING A NEW SECTION TO BE CODIFIED AS ARKANSAS CODE ANNOTATED § 5-62-104, RECOGNIZING THE STATUS OF ABUSED ANIMALS AS CONTRABAND; PROVIDING A PROCEDURE WHEREBY A PROSECUTING ATTORNEY MAY SEEK AND OBTAIN FORFEITURE BY A COURT OF AN ABUSED ANIMAL TO A SOCIETY INCORPORATED FOR THE PREVENTION OF CRUELTY TO ANIMALS OR TO AN ANIMAL CONTROL AGENCY BY FILING A VERIFIED PETITION STATING THE BASIS FOR HIS OR HER BELIEF THAT THE ANIMAL DESCRIBED IN THE PETITION WAS POSSESSED IN VIOLATION OF LAWS PROHIBITING CRUELTY TO ANIMALS OR AGGRAVATED CRUELTY TO ANIMALS; AND PROVIDING A SOCIETY INCORPORATED FOR THE PREVENTION OF CRUELTY T0 ANIMALS OR ANY LAW ENFORCEMENT AGENCY A STATUTORY LIEN AGAINST ABUSED ANIMALS SEIZED AS EVIDENCE FOR COSTS INCURRED FOR FOOD, HOUSING, MEDICAL, AND OTHER NECESSARY EXPENSES; AMENDING ARKANSAS CODE ANNOTATED § 5-62-101 (CRUELTY TO ANIMALS) TO DELETE EXISTING PROVISIONS FOR MENTAL HEALTH EVALUATION, COUNSELING, OR TREATMENT, TO DELETE EXISTING PROVISIONS FOR CUSTODY TRANSFER OF ABUSED ANIMALS, AND TO ADD A PROVISION SPECIFYING THAT AN OFFENSE OF CRUELTY TO ANIMALS SHALL BE A CLASS D FELONY IF THE DEFENDANT HAS PREVIOUSLY BEEN CONVICTED OF ANY OFFENSE INVOLVING THE USE, ATTEMPTED USE, OR THREATENED USE OF VIOLENCE TOWARD OR CRUEL MlSTREATMENT, CRUEL NEGLECT, ABANDONMENT, OR UNAUTHORIZED KILLING OF AN ANIMAL; AMENDING THE EXISTING ARKANSAS UNLAWFUL DOG FIGHTING STATUTE (ARKANSAS CODE ANNOTATED § 5-62-120) TO CHANGE THE WORD "DOG" TO "ANIMAL" THEREBY ESTABLISHING THE OFFENSE OF "UNLAWFUL ANIMAL FIGHTING" AND EXTENDING THE EXISTING FELONY AND MISDEMEANOR PENALTIES TO COCKFIGHTING AND OTHER ANIMAL FIGHTING EVENTS; DEFINING "ANIMAL" FOR PURPOSES OF THE ANIMAL FIGHTING SECTION AS ANY ANIMAL THAT IS IN THE CUSTODY OF HUMANS, INCLUDING ANY DOG OR BIRD; DEFINING "ANIMAL FIGHT" OR "ANIMAL FIGHTING" AS COMBAT BETWEEN TWO OR MORE ANIMALS AS DEFINED IN THE ANIMAL FIGHTING SECTION; ESTABLISHING A CLASS D FELONY OFFENSE FOR THE MANUFACTURE OR SALE OF DEVICES INTENDED TO ENHANCE AN ANIMAL'S FIGHTING ABILITY; ESTABLISHING A CLASS D FELONY OFFENSE FOR THE PURCHASE, POSSESSION, OR CONFIGURATION OF ANY DEVICE WITH THE INTENT OF USING SUCH DEVICE FOR ANIMAL FIGHTING OR TO ENHANCE AN ANIMAL'S FIGHTING ABILITY; AND ESTABLISHING A CLASS D FELONY OFFENSE FOR PERMITTING ONE’S PREMISES TO BE USED FOR ANIMAL FIGHTING; AND PROVIDING FOR THE SEVERABILITY OF PROVISIONS OF THE ACT.
FULL TEXT OF THE ACT
Be it enacted by the people of the State of Arkansas:
SECTION 1. Sections 1 through 6 of this Act shall be known as The Arkansas Animal Cruelty Act.
SECTION 2. The people of the State of Arkansas hereby find that:
(1) Acts of animal cruelty cannot be tolerated in a civilized society;
(2) Cruelty to animals, in some instances, may escalate into violent offenses against people;
(3) The present law concerning cruelty to animals is not sufficient to prohibit or punish the most extreme acts of animal cruelty or certain acts of animal fighting, including cockfighting; and
(4) Adequate investigative, enforcement, and intervention resources will not be available for the identification of serious offenders and appropriate rehabilitative efforts unless extreme cruelty to animals and certain acts of animal fighting, including cockfighting, are upgraded to the status of a felony.
SECTION 3. Arkansas Code Annotated Title 5, Subtitle 6, Chapter 62, Subchapter 1, Section 5-62-101 shall be amended to read as follows:
5-62-101. Cruelty to animals.
(a) A person commits the offense of cruelty to animals if, except as authorized by law, he or she knowingly:
(1) Abandons any animal;
(2) Subjects any animal to cruel mistreatment;
(3) Subjects any animal in his or her custody to cruel neglect; or
(4) Kills or injures any animal belonging to another without legal privilege or consent of the owner.
(b) Cruelty to animals is a Class A misdemeanor.
(c) (1) In addition to all other penalties provided by law, the court may order any person found guilty of cruelty to animals to receive a psychiatric or psychological evaluation, and if determined appropriate, psychiatric or psychological counseling or treatment.
(2) The cost of any evaluation, counseling or treatment may be ordered paid by the defendant up to the jurisdictional limit of the court.
(d)If the person pleads guilty or nolo contendere to or is found guilty of cruelty to animals, the court may assign custody of the abused animal or animals to a society which is incorporated for the prevention of cruelty to animals.
(c) Notwithstanding any other provision of law, a violation of this section shall be a Class D felony if the defendant has been convicted, and the conviction has become final, on a separate prior occasion of any offense that has as an element the use, attempted use, or threatened use of violence toward or cruel mistreatment, cruel neglect, abandonment, or unauthorized killing of an animal.
SECTION 4. Arkansas Code Annotated Title 5, Subtitle 6, Chapter 62, Subchapter 1 shall be amended to add the following sections:
5-62-102. Aggravated cruelty to animals.
(a) A person commits the offense of aggravated cruelty to animals if he or she knowingly tortures, mutilates, maims, burns, poisons, or maliciously kills, starves, or disfigures any animal.
(b) Aggravated cruelty to animals is a Class D felony.
(c) Nothing in this section shall be construed as prohibiting conduct that is otherwise authorized by law or legal privilege, including, but not limited to:
(1) Engaging in the lawful taking of game or fish, or any other activity authorized by Amendment 35 of the Arkansas Constitution, Chapters 41 through 46 of Title 15 of the Arkansas Code, or any Arkansas Game and Fish Commission regulations promulgated thereunder;
(2) Engaging in routine accepted livestock, poultry, or aquaculture management practices;
(3) Protecting livestock and poultry as authorized by § 20-19-102;
(4) Engaging in practices lawful under A.C.A. § 17-101-101 et seq., as amended, the Arkansas Veterinary Medical Practice Act; and
(5) Engaging in practices lawful under A.C.A. § 17-37-101 et seq., as amended, the Arkansas Pest Control Law.
5-62-103. Mental health evaluation and counseling.
(a) In addition to all other penalties provided by law, upon acceptance of a plea of guilty, nolo contendere, or upon a finding of guilt for a violation of A.C.A. §§ 5-62-101, 102, 120, or 124, the court may order the defendant to undergo a psychiatric or psychological evaluation and psychiatric or psychological counseling or treatment.
(b) The cost of any evaluation, counseling or treatment may be ordered paid by the defendant up to the jurisdictional limit of the court.
5-62-104. Disposition of abused animals.
(a) Any animal, as defined in A.C.A. § 5-62-110, possessed in violation of A.C.A. §§ 5-62-101 or 102 is contraband.
(b) (1) The prosecuting attorney of the judicial district within whose jurisdiction such animal is found or seized may proceed against the animal by filing in any court where criminal charges were or could have been filed, a petition for an order to show cause why the court should not order forfeiture of such animal.
(2) The petition shall be verified and shall set forth:
(A) A statement that the action is brought pursuant to § 5-62-104;
(B) A description of the animal sought to be forfeited;
(C) A statement detailing the facts in support of subsection (a) of this section; and
(D) A list of all persons known to the prosecuting attorney, after diligent search and inquiry, who may claim an ownership interest in the animal.
(c) (1) Upon receipt of a petition complying with the requirements of subsection (b) of this section, the judge of the court having jurisdiction shall issue an order to show cause setting forth a statement that this subchapter is the controlling law.
(2) In addition, the order shall set a date at least forty-one (41) days from the date of first publication of the order pursuant to subsection (d) of this section for all persons claiming an interest in the animal to file such pleadings as they desire as to why the court should not order the forfeiture of such animal to a society which is incorporated for the prevention of cruelty to animals, or to an animal control agency.
(3) The court shall further order that all persons who do not appear on that date are deemed to have defaulted and waived any claim to the subject animal.
(d) (1) The prosecuting attorney shall give notice of the forfeiture proceedings by:
(A )Causing to be published a copy of the order to show cause twice each week for two (2) consecutive weeks in a newspaper having general circulation in the county where the animal was discovered; and
(B )Sending a copy of the petition and order to show cause by certified mail, return receipt requested, to the last known address of each person having ownership of or a security interest in the animal, if, after diligent search and inquiry, the prosecuting attorney is able to ascertain same.
(e) At the hearing on the matter, the petitioner shall have the burden to establish by a preponderance of the evidence that the animal was possessed in violation of A.C.A. §§ 5-62-101 or 102.
(f) The final order of forfeiture by the court shall perfect in the society which is incorporated for the prevention of cruelty to animals or in the animal control agency all right, title, and interest in and to such animal, and shall relate back to, and be effective from, the date of seizure.
(g) Upon filing the petition, the prosecuting attorney for the judicial district may also seek such protective orders as necessary to prevent the transfer, encumbrance, or other disposal of any animal named in the petition.
(h) In addition to any other provision of law, any society which is incorporated for the prevention of cruelty to animals or any law enforcement agency having possession or control of an animal seized as evidence of a violation of this subchapter shall have a lien against such animal enforceable in any court where criminal charges were or could have been filed for food, housing, medical, and other necessary expenses incurred which relate to the care of said animal.
SECTION 5. Arkansas Code Annotated Title 5, Subtitle 6, Chapter 62, Subchapter 1, Section 5-62-120 shall be amended to read as follows:
5-62-120. Unlawful dog animal fighting.
(a) (1) A person commits the offense of unlawful dog animal fighting in the first degree if he or she knowingly:
(A) Promotes, engages in, or is employed at dog animal fighting;
(B) Receives money for the admission of another person to a place kept for dog animal fighting; or
(C) Sells, purchases, possesses, or trains an dog animal for dog animal fighting.;
(D) Manufactures or sells any device primarily intended to enhance an animal's fighting ability, including those commonly known as gaffs and slashers;
(E) Purchases, possesses, or configures any device with the intent of using such device for animal fighting or to enhance an animal's fighting ability; or
(F) Permits the use of any premises under one's ownership, charge, or control for animal fighting.
(2) Unlawful dog animal fighting in the first degree is a Class D felony.
(b) (1) A person commits the offense of unlawful dog animal fighting in the second degree if he or she knowingly:
(A) Purchases a ticket of admission to or is present at an dog animal fight; or
(B) Witnesses an dog animal fight if it is presented as a public spectacle.
(2) Unlawful dog animal fighting in the second degree is a Class A misdemeanor.
(c) Upon the arrest of any person for violating the provisions of this section, any law enforcement officer or animal control officer shall have the authority to seize and take custody of all dogs animals in the possession of the arrested person.
(d) Upon the conviction of any person for violating the provisions of this section, any court of competent jurisdiction shall have the authority to order the forfeiture by the convicted person of all dogs animals the use of which was the basis of the conviction. Any dogs animals ordered forfeited under the provisions of this subsection shall be placed in the custody of a society which is incorporated for the prevention of cruelty to animals, or an animal control agency.
(e) In addition to the fines, penalties, and forfeitures imposed under the provisions of this section, the court may require the defendant to make restitution to the state, any of its political subdivisions, or a society which is incorporated for the prevention of cruelty to animals for housing, feeding, or providing medical treatment to dogs animals used for unlawful dog animal fighting.
(f) (1) For purposes of this section, "animal" shall be construed to mean any animal that is in the custody of humans, including, but not limited to, any dog or bird.
(2) For purposes of this section, '’animal fight" or "animal fighting" shall be construed to mean combat between two or more animals as defined in this section.
SECTION 6. SEVERABILITY. If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable.