No Crime Not To Euthanize Pet Dog

The Massachusetts Supreme Judicial Court affirmed the dismissal of a crimina complaint

This case raises the issue whether a failure to follow a veterinarian’s recommendation to euthanize a pet, and instead bring the pet home to die, violates the animal cruelty statute, G. L. c. 272, § 77. The charge against the defendant, Maryann Russo, arises from her care of Tipper, her then terminally ill fourteen year old cocker spaniel. The defendant brought Tipper to a veterinarian seeking to have a large necrotic mass removed from Tipper’s side. Observing the extent of Tipper’s illnesses, including bed sores and open wounds, the veterinarian informed the defendant that Tipper would not survive surgery. The veterinarian recommended euthanasia because, in her opinion, Tipper was terminally ill and nothing could be done to manage his pain. The defendant falsely promised to bring Tipper to a different veterinary practice to be euthanized and took Tipper home to die. A few weeks later, prompted by the veterinarian’s suspicions about the defendant’s intentions, the Animal Rescue League (ARL) removed Tipper from the defendant’s care. Tipper, by this point, was close to death, with a distended stomach and periodic, shallow breathing.

A criminal complaint issued against the defendant charging her under a portion of the animal cruelty statute that prohibits “knowingly and willfully authoriz[ing] or permit[ting] [an animal] to be subjected to unnecessary torture, suffering or cruelty of any kind.” G. L. c. 272, § 77. The defendant filed a motion to dismiss the complaint, which was allowed by a District Court judge. The Appeals Court affirmed the dismissal of the complaint. See Commonwealth v. Russo, 103 Mass. App. Ct. 319, 324 (2023). We allowed the Commonwealth’s application for further appellate review and now affirm the judge’s order. For the reasons that follow, we conclude that there was insufficient evidence of criminal intent to sustain a charge of animal cruelty.

The crime

The statute begins with, and largely consists of, a long list of “thou shall not” provisions that directly prohibit a defendant’s harmful actions or omissions…

In contrast to the “thou shall not” provisions is the final clause of the animal cruelty statute, which prohibits “owner[s], possessor[s], or person[s] having the charge or custody of an animal . . . [from] knowingly and willfully authoriz[ing] or permit[ting] [an animal] to be subjected to unnecessary torture, suffering or cruelty of any kind.” G. L. c. 272, § 77. This clause stands out for its inclusion of the heightened mental state of “knowingly” and “willfully.”

Actus reus

The complaint application failed to establish probable cause that the defendant intended for Tipper to unnecessarily suffer when she declined to follow the veterinarian’s recommendation to euthanize Tipper and brought him home to die. Our opinion should not be read to condone the conduct alleged in the complaint or take a position one way or the other regarding “complicated” and “heartbreaking” end of life decisions…Instead, we hold, on these facts, that the defendant committed no crime.

Footnote

The defendant asserts in her brief that the dog’s name is misstated throughout the record as Chipper when it was in fact Tipper.

(Mike Frisch)