In its recent opinion in State v. Nix, 355 Or 777 (2014), the Oregon Supreme Court held that a conviction for animal neglect involving multiple individual animals was not subject to Oregon’s merger clause, which would generally combine separate criminal acts committed during the same criminal episode into a single conviction. Instead, the Court held, separate convictions on each guilty verdict were required.
The defendant was charged with multiple counts of first- and second-degree animal neglect after “police officers entered defendant’s farm and found dozens of emaciated animals, mostly horses and goats, and several animal carcasses in various states of decay. Defendant owned those animals . . . . A jury convicted defendant of 20 counts of second-degree animal neglect.” Id. at 779 (internal alterations omitted).
The trial court combined the 20 counts into a single conviction under the merger doctrine, which provides that “if a defendant commits a single act that simultaneously fulfills the definition of two separate offenses, . . . the lesser of the two offenses will drop out, and the defendant will only be charged with the greater offense.” Merger may also occur where multiple counts of the same offense are involved, preventing the defendant from being convicted multiple times for the same offense. After merging the 20 counts in Nix, the trial court sentenced the defendant to “90 days in jail and three years of bench probation; the trial court suspended imposition of the jail sentence, and the state appealed.” Id. at 780 (quoting State v. Nix, 251 Or. App. 449, 451-52, 283 P.3d 442 (2012)).
The Oregon Court of Appeals reversed under Oregon’s “anti-merger” statute. ORS 161.067 “provides that, when a defendant is found guilty of committing multiple crimes during a single criminal episode, those guilty verdicts ‘merge’ into a single conviction, unless . . . the same conduct or criminal episode . . . involves two or more victims . . . .” Nix, 355 Or. at 782 (emphasis added). If it does, then there are as many separately punishable offenses as there are “victims.” At issue in Nix, then, was whether individual animals qualify as “victims” under the statute. ORS 161.067 does not define that term, but the defense “argued that the ordinary meaning of the term ‘victim’ does not include non-humans.” Id. at 780.
The Oregon Supreme Court disagreed. The Court reasoned that the term “victim” for conviction purposes is defined by the underlying criminal statute violated, explaining that a defendant’s “victim” must be determined by identifying the intended beneficiary of the prohibition on the defendant’s conduct. In other words, the Court defined the “victim” of an offense as the one that “suffers harm that is an element of the offense.” Id. at 797 (quoting State v. Glaspey, 337 Or. 558, 565, 100 P.3d 730 (2004). Since even the dictionary meaning of “victim” does not limit that term to human beings, the Court refused to restrict victims further than the underlying statute directs. In this case, the Court concluded that the animal neglect statute intended to protect individual animals, not the general public or the convicted owner of neglected “property” (a result the Court called “an odd consequence”). Thus, each neglected animal qualified as a “victim.”
A number of posts by others on Nix have lavished praise on the decision, calling it, for example, a “small step in the greater movement to extend legal rights to non-human persons.” It’s certainly not a step backward. But I suggest that such reactions to Nix—without a corresponding acknowledgment that most of us do things as bad or even worse to animals every day—are textbook examples of what Professor Gary Francione calls “moral schizophrenia.”
Why, for example, do we consider the recognition that individual animals are as much victims of inflicted suffering as human crime victims significant when we kill billions of sentient animals in violent and painful ways every year unnecessarily for food? As Professor Francione points out in his Abolitionist Approach blog post on responses to Alastair Graham, who reportedly pleaded guilty to causing a dog unnecessary suffering by dousing it in gasoline and burning it to death, no one “with any expertise maintains any longer that eating meat, fish, dairy, eggs, etc. is essential for human health. Indeed, many mainstream health professionals are recognizing that animal foods are detrimental to human health. And animal agriculture is an ecological disaster.” The usual justification for inflicting all of that suffering and death is that we enjoy and have always enjoyed eating animal products.
It is impossible to express a moral difference between tolerance of animal exploitation for food consumption and intolerance of the animal neglect in Nix. If we pump our fists in the air and celebrate Nix as a “step forward” for animals, if we feel any empathy at all toward 20 emaciated horses and goats and recognize them as sentient beings entitled to be treated as more than property, then we should feel even greater empathy toward the billions of farmed animals who suffer far greater harm simply to provide pleasures of the pallet. And then we should act on that empathy by rejecting our own view that some animals can be treated as property—and ending our own demand for animal products.
The decision in Nix is better than one lumping animal victims of criminal neglect together, resulting in a meaningless punishment. But if we agree that what the defendant in Nix did was wrong, we have nothing to celebrate unless we separate ourselves from vicariously doing worse.