Understand that Maryland’s recently enacted anti-devocalization law, though well intentioned, is inadequate.

i Apr 30th
HOW YOU CAN HELP ANIMALS!
 Understand that Maryland’s recently enacted anti-devocalization law, though well intentioned, is inadequate.

  

As ISAR’s supporters know, one of our major programs is STOP DEVOCALIZATION NOW. Foremost among our tools to STOP DEVOCALIZATION NOW is “ISAR’s Model Statute Prohibiting Devocalization.” We’ve circulated it widely, and encouraged laypersons to urge their legislators to adopt the statute.

              

ISAR’s Model Statute Prohibiting Devocalization1

The Legislature hereby declares that it intends by the enactment of this statute to provide for the public health, safety, welfare and morals by prohibiting the veterinary practice of devocalization.

The Legislature finds that devocalization affects the public health, safety, welfare, and morals by, among other consequences, contributing to the overpopulation of dogs and cats, increased levels of euthanasia, and costly animal control expenditures.

The Legislature finds also that devocalization affects the public health, safety, welfare, and morals by fostering the indefensible belief that the practice’s brutal treatment of dogs and cats is humane and morally acceptable.

Section 1. Prohibition

(a) No person within this jurisdiction shall surgically or by any other means devocalize a dog or cat, or cause, or allow others to cause, the devocalizing of a dog or cat, unless a veterinarian licensed in this state shall have first filed a written certification with the county clerk stating that devocalizing is medically necessary to treat or relieve an illness, disease, or injury, or correct a congenital abnormality that is causing, or will cause, the dog or cat medical harm, pain or suffering.

Section 2. Written certification

(a) The written certification described in Section 1 shall contain (i) the date and description of the veterinarian’s examination and evaluation of the dog or cat, (ii) a statement certifying that devocalizing is medically necessary to treat or relieve an illness, disease, or injury, or correct a congenital abnormality that is causing or will cause the dog or cat harm, pain or suffering(iii) any supporting diagnosis and findings, (iv) the name and current address and telephone number of the dog or cat’s owner or keeper, and (v) the name and current address and telephone number, state license number, and signature of the veterinarian.

Section 3. Veterinarians

(a) No person except a veterinarian licensed in this state, using anesthesia sufficient to eliminate all pain, may devocalize a dog or cat.

Section 4. Penalties

(a) Any person in violation of this statute shall be punished by not more than eighteen months in jail, or by a fine of not more than $2,500, or by both.

(b) Any person convicted under this statute may be ordered to submit to a mental health evaluation as determined by the court and undergo any recommended counseling or treatment.

(c) In addition to any other penalty provided by law, any person convicted under this section may be barred from owning or possessing any animals, or residing on the same property with someone who owns or possesses animals, for a period of time deemed appropriate by the court, and may be further required to take humane education, pet ownership and dog training classes as ordered by the court.

Section 5. Sale or gift of devocalized animals

(a) Anyone selling, gifting or otherwise transferring ownership or possession of a dog or cat shall disclose to the recipient whether the dog or cat has been devocalized and provide the recipient with a copy of the veterinarian certification required by Section 3.

Section 6. Definition

(a) As used in this statute, “devocalize” and any word derived therefrom, is defined as “any procedure performed on the larynx or vocal chords of a dog or cat causing the reduction or elimination of vocal sounds produced by that animal and includes procedures commonly referred to as “debarking,” “silencing” or “bark softening.”

Several weeks ago when ISAR was contacted by Maryland legislator Benjamin F. Kramer’s office in Annapolis we learned that the State of Maryland was considering enactment of an anti-devocalization bill. Because in our long experience with those who draft animal protection legislation, usually with the best of intentions, ISAR’s chairman, Professor Henry Mark Holzer, volunteered to submit testimony regarding the provisions that should have been contained in Maryland’s proposed anti-devocalization statute.The next thing we heard was that the bill had become law.

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Chapter 187 

(House Bill 667)

AN ACT concerning

Crimes Relating to Animals — Unauthorized Surgical Devocalization of Cat or 

Dog — Penalties

FOR the purpose of prohibiting a person from surgically devocalizing a dog or cat; authorizing a certain veterinarian to surgically devocalize a dog or cat under certain circumstances; defining a certain term; providing penalties for a violation of this Act; and generally relating to crimes relating to animals.

BY adding to

           Article — Criminal Law

           Section 10-624

           Annotated Code of Maryland

           (2012 Replacement Volume and 2013 Supplement)

            SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF

MARYLAND, That the Laws of Maryland read as follows:

Article — Criminal Law

10-624.

(A)(1) “DEVOCALIZE” MEANS TO PERFORM A SURGICAL PROCEDURE INVOLVING CUTTING, NOTCHING, PUNCHING, ABRADING, LASERING, SUTURING, OR OTHERWISE PHYSICALLY ALTERING THE VOCAL APPARATUS OF A DOG OR CAT WITH THE INTENT OF ALTERING, REDUCING, OR ELIMINATING VOCAL SOUNDS PRODUCED BY THE ANIMAL.

(2) “DEVOCALIZE” INCLUDES DEBARKING, DEVOICING, SILENCING, VENTRICULOCORDECTOMY, VOCAL CORDECTOMY, BARK REDUCTION, AND BARK SOFTENING.

(B) EXCEPT AS PROVIDED IN SUBSECTION (C) OF THIS SECTION, A PERSON MAY NOT SURGICALLY DEVOCALIZE A DOG OR CAT.

(C) A LICENSED VETERINARIAN MAY SURGICALLY DEVOCALIZE A DOG OR CAT ONLY IF:

(1) ANESTHESIA IS ADMINISTERED TO THE ANIMAL DURING THE  PROCEDURE; AND

(2) THE VETERINARIAN PROVIDES THE OWNER OR KEEPER OF THE ANIMAL A WRITTEN CERTIFICATION THAT:

(I) STATES THAT THE PROCEDURE ON THE ANIMAL WAS MEDICALLY NECESSARY TO TREAT OR RELIEVE A PHYSICAL ILLNESS, A DISEASE, OR AN INJURY, OR TO CORRECT A CONGENITAL ABNORMALITY THAT IS CAUSING OR WILL CAUSE THE ANIMAL MEDICAL HARM OR PAIN; AND

(II) CONTAINS:

  1. THE DATE AND DESCRIPTION OF THE VETERINARIAN’S EXAMINATION AND EVALUATION;
  2. SUPPORTING DIAGNOSES AND FINDINGS;
  3. THE NAME AND CURRENT ADDRESS AND TELEPHONE NUMBER OF THE ANIMAL’S OWNER OR KEEPER; AND
  4. THE NAME AND CURRENT ADDRESS AND TELEPHONE NUMBER, STATE LICENSE NUMBER, AND SIGNATURE OF THE VETERINARIAN.

(D) A PERSON WHO VIOLATES THIS SECTION IS GUILTY OF A MISDEMEANOR AND ON CONVICTION IS SUBJECT TO:

(1) FOR A FIRST OFFENSE, IMPRISONMENT NOT EXCEEDING 90 DAYS OR A FINE NOT EXCEEDING $1,000 OR BOTH; AND

(2) FOR A SECOND OR SUBSEQUENT OFFENSE, IMPRISONMENT NOT EXCEEDING 1 YEAR OR A FINE NOT EXCEEDING $2,000 OR BOTH.

SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall take effect October 1, 2014.

Approved by the Governor, April 14, 2014.

*****

Please note the following…..

Maryland’s statute (Section (A)(1) requires an intent to change vocal sounds. ISAR’s Model Statute (Section 6(a)) does not require any such intent. This means that under Maryland’s statute the prosecutor must prove beyond a reasonable doubt that by the accused’s surgical conduct the desired end of the procedure was to change vocal sounds. To the contrary, ISAR’s Model Statute would allow conviction simply upon adequate proof that the defendant actually changed vocal sounds, whether or not he or she actually intended to do so. As most trial lawyers know, proving intent is not a slam dunk because it requires an x-ray into someone’s mental state. While it’s true that intent can often be inferred from acts, it can’t always. In this regard, ISAR’s Model Statute is importantly better than Maryland’s.

Maryland’s Section (B) provides that “a person may not surgically devocalize a dog or cat.” There are two weaknesses in this section, shown by ISAR’s contrasting prohibitory language. First, our “Section 1. Prohibition,” bars devocalization “surgically or by any other means.” Second, it not only bars the person him/herself from devocalizing, but covers a situation where the person shall “cause, or allow others to cause” devocalization of a dog or cat.

Maryland’s Section (C) allows a veterinarian to perform devocalization, “only if (1) anesthesia is administered to the animal during the procedure.” What if it’s inadequate? ISAR’s “Section 3. Veterinarians”, plugs this loophole by expressly requiring that the anesthesia shall be “sufficient to eliminate all pain.”

Other important provisions, present in ISAR’s Model Statute but absent from Maryland’s, are:

  • Findings. “Findings” are essential predicates to legislation at every level of government. They provide the explicit rationale(s) for enactment of the laws, and usually enable reviewing courts to understand why they were passed.
  • Penalties. Absent from Maryland law is ISAR’s “Section 4. Penalties (b) and (c),” the former allowing for a mental health evaluation and therapy, the latter allowing for a court-ordered prohibition of contact with animals, etc.
  • ISAR’s “Section 2. Written certification,” requirement is considerably more stringent than the four requirements found in Maryland’s (C)(2)(II).
  • ISAR’s “Section 5. Sale or gift of devocalized animals,” imposes disclosure requirements on anyone who transfers ownership or possession of a devocalized dog or cat. Maryland’s statute has no such requirements.

Maryland’s governor and legislature are to be applauded for their intention to criminalize devocalization, and ISAR is sure that the new law will go a long way to eliminating that barbaric practice.

But, as is often unfortunately the case, Maryland’s new anti-devocalization statute could have been better drafted.

ISAR welcomes the opportunity to help.

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1 ISAR’s proposed Model Statute Prohibiting Devocalization draws almost entirely on the Massachusetts law enacted several years ago. ISAR’s Model Statute is drafted for the state level. With appropriate adjustments, the statute can be used at any other level of government.