Introduction
Possibly the most devastating and weighty decision any pet owner may have to make is determining whether their beloved animal should be put down to relieve them of the horrible pain and suffering afflicting them.1How Will I Know It’s Time to Say Goodbye?, Lap of Love, perma.cc/9EDG-5JXL (last visited September 29, 2025). Some owners risk waiting too long – hoping to provide their pet with a natural death – and end up subjecting their pet to unnecessary and extreme suffering.2PetWorldInsider, Pet X Talks – Dr. Dani McVety – The Compassion of Euthanasia – Quality of Life & Quality of Death, YouTube, at 06:40–09:56 (Nov. 2, 2015), perma.cc/YRV5-PZVT. Alternatively, some owners opt for euthanasia to ensure a peaceful passing – resembling drifting off to sleep – but are left wondering if their actions were too rash and hurried.3See id. at 08:45–09:56. While veterinarians cannot make the decision, they are the singular best resource a pet owner can invoke to assist in their deliberations.4Euthanasia: Making the Decision, Am. Humane Soc’y, (Aug. 25, 2016) perma.cc/M89Z-GZPX. Among other things, veterinarians provide clear explanations of the condition of the pet, any available medical options, and all risks before the decision is made.5Euthanasia, Am. Veterinary Med. Ass’n, perma.cc/43AM-WFUU (last visited September 29, 2025). Veterinarians harness their superior knowledge and experience to determine if the pet’s pain is truly unmitigable, leaving euthanasia as the only humane option.6Am. Humane, supra note 4.
To reflect society’s desire to eradicate animal cruelty, most states have passed legislation that criminalizes animal neglect and prohibits any acts that would cause animals to suffer unnecessarily.7See, e.g., Ga. Code Ann. § 16-12-4 (West 2014); N.M. Stat. Ann. § 30-18-1 (West 2007); 18 Pa. Stat. and Cons. Stat. § 5533 (West 2017). See generally William A. Reppy Jr., Broad Exemptions in Animal-Cruelty Statutes Unconstitutionally Deny Equal Protection of the Law, 70 Law & Contemp. Probs. 255, 298–323 (2007) (listing state animal cruelty statutes and particularly enumerating their exemptions). While it is not always clear if these statutes’ reach extends to the intimate decision to euthanize a pet, the statutes clearly “reflect[] society’s acceptance of the idea that animals ha[ve] an inherent right to be free from unnecessary pain and suffering and that the legal system should recognize that right.”8People v. Harris, 405 P.3d 361, 371 (Colo. App. 2016). Massachusetts’s animal cruelty statute, among other provisions, proscribes any “owner, possessor, or person having the charge or custody of an animal” from “knowingly and willfully authoriz[ing] or permit[ing] it to be subjected to unnecessary torture, suffering or cruelty of any kind.”9Mass. Gen. Laws Ann. ch. 272, § 77 (West 2018). While every euthanasia decision is unique to the individual pet and involves a weighing of complex factors, veterinarians agree that there is a point at which sustained suffering is too great, and euthanasia is the only recourse.10Lap of Love, supra note 1. The decision to deny euthanasia past this point subjects the animal to unnecessary suffering.11Am. Humane, supra note 4. Despite this truth, the Massachusetts Supreme Judicial Court (hereinafter “SJC”) decided in Commonwealth v. Russo12236 N.E.3d 1171 (Mass. 2024). that an owner’s choice to subject her pet to extended pain by refusing euthanasia after her veterinarian strongly advocated for it was not in violation of the animal cruelty statute.13Id. at 1180.
This Comment argues that the SJC in Commonwealth v. Russo erred in their statutory interpretation of the animal cruelty statute by requiring “willfully” to apply to the harmful consequences of the prohibited conduct, forcing the Commonwealth to provide probable cause that the defendant intended her dog, Tipper, to be subjected to unnecessary suffering. Furthermore, this Comment opines that even if the Court’s interpretation of the statute was correct, the defendant’s act of preventing Tipper from receiving any medical attention or support at all provides probable cause that the defendant intended Tipper to be subject to unnecessary suffering. Finally, this Comment contends that the effect of the Court’s decision is in opposition with the legislative intent behind the animal cruelty statute and with public policy considerations.
In Part I, this Comment explores the range of ways Massachusetts courts have interpreted the term “willfully” in statutory language and the relevant cases from other states analyzing the true meaning and applicability of animal cruelty statutes. In Part II, this Comment delves into the Commonwealth v. Russo opinion, providing a comprehensive summary of the decision. Part III analyzes Massachusetts cases and statutes to show the intended definition of the term “willfully” as used in the Massachusetts animal cruelty statute does not require separate intention on the part of the pet owner in reference to the harmful consequences. Part III further contends that, even if separate intention was required, the defendant’s actions show clear intent to subject her pet to unnecessary suffering, meeting the standard of probable cause. Part IV explains the consequences of the Court’s decision and how such consequences are contrary to the legislative intent of the animal cruelty statute and to the public policy of holding owners accountable for mistreating their pets.
I. Background
- A. The Definition of “Willfully”
When interpreting a criminal statute requiring the mens rea of “knowingly and willfully,” the Supreme Court characterized the mental component as “impl[ying] not only a knowledge of the thing, but a determination with bad intent to do it or omit doing it.”14Felton v. United States, 96 U.S. 699, 702 (1878). The Eighth Circuit elaborated on this concept, claiming “willful” conduct required that “the attitude of a carrier . . . having a free will or choice, either intentionally disregards the statute or is plainly indifferent to its requirements.”15St. Louis & S.F. R.R. Co. v. United States, 169 F. 69, 71 (8th Cir. 1909); see Stephen J. Brogan, Analysis of the Term Willful in Federal Criminal Statutes, 51 Notre Dame L. Rev. 786, 789 (1976). However, after a Supreme Court decision in 1938 watered down the definition of “willful,” federal and state courts have established varied approaches to interpreting “willfully” in a criminal statute.16United States v. Illinois C. R. Co., 303 U.S. 239, 242–43 (1938) (interpreting “willfully” in a civil statute to mean “an intentional, or knowing, or voluntary as distinguished from accidental,” inadvertent, or negligent act and finding its definition will be largely context dependent).
Massachusetts courts have defined “willful” generally in two ways: (1) “intentional and by design in contrast to that which is thoughtless or accidental,”17Commonwealth v. Peruzzi, 446 N.E.2d 117, 120–21 (Mass. App. Ct. 1983). and (2) a voluntary act that “involves conscious wrong or evil purpose on the part of the actor, or at least inexcusable carelessness, whether the act is right or wrong.”18Millis Pub. Sch. v. M.P., 89 N.E.3d 1170, 1177 (Mass. 2018) (citing Willfully, Black’s Law Dictionary (10th ed. 2014)). Although the term is often associated with ill intent, “the modern definition is that ‘wilful means intentional’ without making reference to any evil intent.”19Commonwealth v. Luna, 641 N.E.2d 1050, 1053 (Mass. 1994) (quoting Commonwealth v. Welansky, 55 N.E.2d 902 (Mass. 1944)). Correctly defining “willfully” demands viewing the word in the context of the statute and in the larger statutory scheme.20Commonwealth v. Pfeiffer, 121 N.E.3d 1130, 1139 (Mass. 2019). Statutory interpretation requires the court to “look at the words of the statute, always keeping in mind the Legislature’s over-all objectives, and subjecting [the] analysis to the dictates of reason and common sense.”21Commonwealth v. O’Neil, 853 N.E.2d 576, 584 (Mass. App. Ct. 2006).
An additional nuance to interpreting the definition of “willfully” as used in the statute is whether its application extends only to the acts enumerated or also to the harmful consequences required for the commission of the offense.22Commonwealth v. Russo, 236 N.E.3d 1171, 1179 (Mass. 2024). The latter interpretation has been applied to Massachusetts statutes prohibiting willful and malicious destruction of personal property,23E.g., Commonwealth v. Armand, 580 N.E.2d 1019, 1022 (Mass. 1991). willful obstruction of a public officer,24E.g., Commonwealth v. Adams, 125 N.E.3d 39, 51 (Mass. 2019). and willful obstruction of a firefighter.25E.g., Commonwealth v. Joyce, 998 N.E.2d 1038, 1042 (Mass. App. Ct. 2013). The idea is that someone acting willfully has the end result as his object, whereas a reckless actor only intends his irresponsible conduct without considering the resulting harm.26Commonwealth v. Smith, 456 N.E.2d 760, 763 (Mass. App. Ct. 1983).
“Willfully” has often been paired with “maliciously” in criminal statutes to describe the relevant mens rea.27See, e.g., Mass. Gen. Laws Ann. ch. 265, § 43A(a) (West 2024) (“Whoever willfully and maliciously engages in a knowing pattern of conduct . . . .”); Mass. Gen. Laws Ann. ch. 266, § 1 (West 1974) (“Whoever wilfully and maliciously sets fire to, burns, or causes to be burned . . . a dwelling house . . . .”); Mass. Gen. Laws Ann. ch. 266, § 127 (West 2018) (“Whoever destroys or injures the personal property, . . . if such destruction or injury is willful and malicious . . . .”). When two similar words are used to describe something, the rules of statutory interpretation require the assumption that the legislature did not intend to be redundant, so the words are to be read with independent meanings.28 Valerie C. Brannon, Cong. Rsch. Serv., Statutory Interpretation: Theories, Tools, and Trends 31 (2023), https://perma.cc/JX6L-L3P8; see, e.g., Commonwealth v. Peruzzi, 446 N.E.2d 117, 120–21 (Mass. App. Ct. 1983). Therefore, “willful” has been interpreted to mean intentional without further evil intent, and “maliciously” has been interpreted to mean “without legal justification or excuse.”29Commonwealth v. Brennan, 112 N.E.3d 1180, 1188 (Mass. 2018). Malice requires, at minimum, a reckless indifference based on the knowledge that something is likely to occur.30Commonwealth v. O’Neil, 853 N.E.2d 576, 584 (Mass. App. Ct. 2006).
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B. Interpretations of Animal Cruelty Statutes in Other Jurisdictions
Cases from other states handling convictions under animal cruelty statutes are instructive in assisting statutory interpretation and understanding legislatures’ broader motivations in enacting these kinds of statutes.31See Persuasive Authority, Cornell Legal Information Institute, https://perma.cc/XR24-G4BK (last updated May 2020). In State v. Dresbach,32702 N.E.2d 513 (Ohio Ct. App. 1997). the Ohio Court of Appeals found the animal cruelty statute to be “broad enough to include situations where an animal suffers needlessly because of the owner’s failure to seek critically necessary veterinary care.”33Id. at 516. The Ohio statute states, “No person shall . . . [t]orture an animal, deprive one of necessary sustenance, unnecessarily or cruelly beat, needlessly mutilate or kill, or impound or confine an animal,”34 Ohio Rev. Code Ann. § 959.13(A)(1) (West 1977). further defining torture as “every act, omission, or neglect by which unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is a reasonable remedy or relief.”35 Ohio Rev. Code Ann. § 1717.01(B) (West 1953).
In another Ohio case, State v. Rawson,3662 N.E.3d 880 (Ohio Ct. App. 2016). the defendant was charged with violating a different section of the animal cruelty statute that prohibits omission of “any act of care by which unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue, when there is a reasonable remedy or relief, against the companion animal.”37 Ohio Rev. Code Ann. § 959.131(C) (West 2013); Rawson, 62 N.E.3d at 883. The Ohio Court of Appeals interpreted the statute to require the defendant “to take reasonable means to alleviate the dog’s suffering.”38Rawson, 62 N.E.3d at 892. Because the defendant was aware of his pet’s serious, painful condition and failed to utilize resources to alleviate the pain, such as the humane society, the court found that a jury could reasonably find that the defendant violated the statute.39Id. at 892.
Similarly, in People v. Curcio,4022 Misc. 3d 907 (N.Y. Crim. Ct. 2008). the defendant was charged with violating New York’s animal cruelty statute for refusing to obtain medical treatment for his dog, who had a large, painful mass.41Id. at 908. The court noted that, by enacting the statute, the legislature “made a societal determination that animals . . . should be protected from abuse or neglect.”42Id. at 915. The defendant’s refusal to treat his dog’s condition, making the dog suffer unnecessarily, is exactly the kind of thing the legislature sought to prohibit.43Id.
In People v. Larson,44885 N.E.2d 363 (Ill. App. Ct. 2008). the Illinois Appellate Court examined its aggravated cruelty statute, which states, “No person may intentionally commit an act that causes a companion animal to suffer serious injury or death.”45510 Ill. Comp. Stat. Ann. 70/3.02(a) (West 2004); Larson, 885 N.E.2d at 370. The Court specifically addressed euthanasia, saying that the defendant’s “specified intent to cause the companion animal to suffer serious injury or death” was evident by his use of a self-help method of euthanizing his dog instead of taking his dog to the veterinarian.46Larson, 885 N.E.2d at 372.
In State v. Morival,4775 So. 3d 810 (Fla. Dist. Ct. App. 2011). the Florida Court of Appeals interpreted their statute, which states, “A person who intentionally commits an act to any animal which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, is guilty,”48 Fla. Stat. Ann. § 828.12 (West 2002). where the defendant repeatedly and for an extended period failed to feed his animal.49Morival, 75 So. 3d at 810–12. The Court found the statute applies to the allegation against the defendant at least to take the defendant past the motion to dismiss stage.50Id. at 812.
II. Commonwealth v. Russo
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A. Factual and Procedural History
On December 25, 2020, the defendant, Maryann Russo, brought her “terminally ill fourteen year old cocker spaniel,” Tipper, to the VCA South Shore Animal Hospital (hereinafter “hospital”), where Russo refused recommended surgery for a large mass the attending veterinarian found on Tipper’s side.51Commonwealth v. Russo, 236 N.E.3d 1171, 1173 (Mass. 2024). After three weeks passed, Russo brought Tipper in again, and the veterinarian found the same large mass plus “bed sores and an ‘open necrotic wound’ where his skin was ‘sloughing off.’”52Id. at 1174. Tipper’s condition included inability to walk or stand, painful labored breath, and anemic appearance.53Id. Due to these behaviors, the veterinarian recommended euthanasia, as the surgery was no longer likely to be successful and the pain could not be managed any other way.54Id. In response, Russo claimed Tipper would be euthanized by a different veterinarian.55Id.
Due to distrust based on prior experiences with Russo at the hospital and deep concern for Tipper in his painful condition, the veterinarian called the American Rescue League (hereinafter “ARL”) the next day to investigate, and Sergeant Paul Parlon was given the case.56Id. After many unsuccessful attempts to reach Russo, Parlon received a message from Russo saying that “Tipper was in good health and pain free” and no longer needed euthanasia.57Russo, 236 N.E.3d at 1174–75.
On February 4, 2021, Parlon visited Russo’s house, let in by her mother, and found Tipper lying on a couch, surrounded by newspaper with a diaper on.58Id. at 1175. Tipper looked to be dead with shallow breaths, raw sores on his legs, and a distended stomach.59Id. Parlon informed Russo’s mother of the gravity of the situation and the extremeness of Tipper’s condition, but Russo’s mother insisted that Tipper die at home.60Id. When Tipper was turned so Parlon could observe the large mass, Tipper gasped for air, looking “stiff and uncomfortable.”61Id. Parlon noted to the Russos that Tipper was clearly suffering, a fact of which they must be aware given Tipper’s state.62Id. In an effort to rebut Parlon’s allegations, Russo’s mother showed Parlon Tipper’s pain medication, explaining Tipper did not need or take it.63Russo, 236 N.E.3d at 1175. After reiterating Tipper’s dire condition and his need for immediate medical attention, Parlon explained that he would be filing a report and pursuing a court order to get Tipper the care he clearly needed, to which the Russo family asked Parlon to leave and not return.64Id. at 1175–76.
In February of 2021, Russo was charged with violating the Massachusetts animal cruelty statute.65Id. at 1176. Russo filed a motion to dismiss for lack of probable cause the following January, which she amended in March.66Id. At the motion’s hearing, the Commonwealth argued that Russo permitted Tipper to experience “unnecessary suffering” as prohibited by the statute.67Id. On June 14, 2022, Russo’s motion to dismiss was granted.68Id. The Commonwealth appealed, and the Appeals Court affirmed the dismissal of the complaint.69Russo, 236 N.E.3d at 1176. The Appeals Court reasoned “the Legislature deliberately chose to criminalize only situations where someone (or something) ‘subjected’ the animal to the harm at issue,” and no case law “in which a person’s failure to intervene with the complicated, heartbreaking, painful end of an animal’s life has been interpreted as ‘subjecting’ an animal to statutorily prohibited harm.”70Commonwealth v. Russo, 218 N.E.3d 116, 120–21 (Mass. App. Ct. 2023). The SJC granted the Commonwealth’s application for further appellate review.71Russo, 236 N.E.3d at 1176.
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B. The Court’s Holding and Analysis
On appeal, the SJC had to determine whether there was probable cause to charge Russo with violating the animal cruelty statute because of her refusal to give Tipper the recommended medical treatment based on his terminal condition.72Id. To do this, the Court began with a statutory interpretation analysis and followed with a probable cause determination.73Id.
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1. Interpretation of the Animal Cruelty Statute
The Court’s framework of statutory analysis required “examining the plain language of the statute,” pulling the “usual and accepted meanings from sources presumably known to the statute’s enactors.”74Id. at 1176–77. The statute should be interpreted “in a manner that is consistent with ordinary English usage.”75Id. at 1178. The Court noted that the goal of statutory interpretation is to discover the meaning as the legislature intended it.76Id. at 1177. The legislative intent behind this statute is to prevent “both intentional and neglectful animal cruelty.”77Russo, 236 N.E.3d at 1177 (citing Commonwealth v. Duncan, 7 N.E.3d 469, 473 (Mass. 2014)).
The relevant portion of the animal cruelty statute reads, “[W]hoever, as owner, possessor, or person having the charge or custody of an animal, . . . knowingly and willfully authorizes or permits it to be subjected to unnecessary torture, suffering or cruelty of any kind shall be punished.”78Mass. Gen. Laws Ann. ch. 272, § 77 (West 2018). This portion stands apart from the previous provisions because its construction is not in “thou shall not” form, and it includes “the heightened mental state of ‘knowingly’ and ‘willfully.’”79Russo, 236 N.E.3d at 1177-78. Thus, the Court began its interpretation by defining “knowingly” and “willingly.”80&Id. at 1178.
The Court found that “[a]n act is done ‘knowingly’ if it is the product of conscious design, intent or plan that it be done, and is done with awareness of probable consequences.”81Id. (quoting Commonwealth v. Becker, 879 N.E.2d 691, 699 (Mass. App. Ct. 2008)). The Court interpreted the construction of the sentence in the statute to produce a reading in which “knowingly” applies to the verbs (i.e., “authorizes or permits”), the object (i.e., “animal”), and the object complement (i.e., “to be subjected to unnecessary torture, suffering or cruelty”).82Id.; see ch. 272, § 77. Therefore, the Court determined the Commonwealth must prove “the defendant consciously authorized” something she “was aware would subject the animal to ‘unnecessary torture, suffering or cruelty.’”83Russo, 236 N.E.3d at 1179 (reviewing ch. 272, § 77).
The Court did a similar analysis for the definition of “willfully.”84Id. Depending on the context, Massachusetts courts have interpreted “willfully” differently, but the Court found it is usually defined one of two ways.85Id. Either “willfully” means “intentionally or purposely as distinguished from accidentally or negligently,” or “acting with ‘a bad purpose or evil intent.’”86Id. (quoting Rollins M. Perkins & Ronald N. Boyce, Criminal Law 875–76 (3d ed. 1982)). To determine which definition is being utilized in this particular statute, the Court looked at the context that frames the animal cruelty statute.87Id. In performing this analysis, the Court analogized the language of this statute with another Massachusetts statute,88Id. which states, “Whoever willfully obstructs, interferes with or hinders a fire fighter in the lawful performance of his duty, or whoever willfully obstructs, interferes with or hinders a fire fighting force in the lawful performance of its duty, shall be punished . . . .”89Mass. Gen. Laws Ann. ch. 268, § 32A (West 1968). When interpreting that statute in Commonwealth v. Joyce,90998 N.E.2d 1038 (Mass. App. Ct. 2013). the Massachusetts Appeals Court found “willfully” to mean both the conduct and harmful consequences of his conduct must be intended by the defendant.91Id. at 1042. Because the construction and surrounding terms of both statutes were similar, the Court applied that statutory interpretation to the animal cruelty statute, meaning the Commonwealth must prove the defendant intended both to “authorize[] or permit[]” and that the animal “be subjected to unnecessary torture, suffering or cruelty.”92Mass. Gen. Laws Ann. ch. 272, § 77 (West 2018); Russo, 236 N.E.3d at 1179.
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2. Probable Cause Analysis
Having laid out the proper standard, the Court applied the statutory interpretation to determine whether the Commonwealth established probable cause that Russo acted willfully.93Russo, 236 N.E.3d at 1180. The Court found the Commonwealth failed to do so because Russo tried to make Tipper comfortable and sought medical care for Tipper, ultimately making the tough choice to take Tipper home to die instead of euthanizing him.94Id. The Commonwealth’s assertion that Russo’s lies about Tipper’s condition provide a clear showing of intent to cause unnecessary suffering was dismissed as speculative and insufficient to support probable cause.95Id. Ultimately, the Court affirmed the dismissal of the complaint, holding Russo was not in violation of the animal cruelty statute.96Id.
Analysis
III. The Court Incorrectly Interpreted “Willfully” to Require an Element of Malice and Erred in Finding a Lack of Probable Cause
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A. In the Context of the Animal Cruelty Statute, “Willfully” Does Not Demand an Element of Malice but Only Requires Intentionality
The Court’s interpretation of the definition of “willfully” lays out two meanings: one being “intentional rather than accidental” and one requiring something more.97Id. at 1179 (quoting Commonwealth v. Dung Van Tran, 972 N.E.2d 1, 16 (Mass. 2012)). That something more can be satisfied in two different ways: “acting with ‘a bad purpose or evil intent’”98Id. (quoting Perkins & Boyce, supra note 86, at 875–76). and “intend[ing] both her actions and their harmful consequences.”99Russo, 236 N.E.3d at 1179. The Court conflates this distinction, finding the evil purpose to be intending the harmful consequences.100See id. at 1180. Thus, Russo must have intended with some form of ill-will that Tipper “be subjected to ‘unnecessary torture, suffering or cruelty.’”101Id. (quoting Mass. Gen. Laws Ann. ch. 272, § 77 (West 2018)).
The issue with this interpretation is that it exceeds the bounds of what an ordinary reading would require.102See Commonwealth v. Cassidy, 96 N.E.3d 691, 698 (Mass. 2018) (quoting Flores-Figueroa v. United States, 556 U.S. 646, 652 (2009)) (noting that statutes should be read “in a manner that is consistent with ordinary English usage.”). The statute, as read normally, does not purport to include any necessary malice on the part of the animal owner, but instead reads as requiring a passive allowance of harm by the owner.103See Ch. 272, § 77. When statutory language is written in passive voice, lacking clear reference to the subject who must take the proscribed action, courts have found there is no separate intent requirement for that provision.104See Dean v. United States, 556 U.S. 568, 572 (2009) (interpreting “if the firearm is discharged” to be passive, occurring without reference to any specific actor, and requiring no intent); Anita S. Krishnakumar, Passive-Voice References in Statutory Interpretation, 76 Brook. L. Rev. 941, 944–45 (2011). This is especially true when what matters is that “something happened—not how or why it happened . . . .”105Dean, 556 U.S. at 572. The Massachusetts animal cruelty statute requires the animal “be subjected to unnecessary . . . suffering,”106Ch. 272, § 77. without reference to the actor who must subject the animal to the suffering, making this part of the statute passive.107Commonwealth v. Russo, 218 N.E.3d 116, 120 (Mass. App. Ct. 2023) (“The passive construction stands in stark contrast to the active voice of the other verbs in the statute.”); see Krishnakumar, supra note 104, at 944–45. Thus, ordinary statutory interpretation would not require proof of ill-intent in relation to that provision.108See Dean, 556 U.S. at 572.
To explain their deviation from this well-founded principle of statutory interpretation, the Court analogized this case with Commonwealth v. Joyce.109Commonwealth v. Russo, 236 N.E.3d 1171, 1179 (Mass. 2024); see Commonwealth v. Joyce, 998 N.E.2d 1038, 1042 (Mass. App. Ct. 2013). The Joyce Court, like the Russo Court, found that the language of the statute at issue required its violator to intend both his conduct and the harmful consequences—this being “the interference with, obstruction, or hindrance of the fire fighter” in Joyce.110Joyce, 998 N.E.2d at 1041; see Mass. Gen. Laws Ann. ch. 268, § 32A (West 1968) (“Whoever willfully obstructs, interferes with or hinders a fire fighter in the lawful performance of his duty, or whoever willfully obstructs, interferes with or hinders a fire fighting force in the lawful performance of its duty, shall be punished . . . .”). However, this analogy is flawed. Firstly, the conduct in the firefighter statute is active, while the conduct in the animal cruelty statute is passive.111Compare Ch. 268, § 32A, with Mass. Gen. Laws Ann. ch. 272, § 77 (West 2018). Secondly, the conduct in the firefighter statute—“obstructs, interferes with, or hinders”—is also the harmful consequence—that the obstruction, interference, or hindrance happen.112Ch. 268, § 32A; see Joyce, 998 N.E.2d at 1042. A direct analogy to the animal cruelty statute would require the defendant to intend the conduct—to “authorize[] or permit[]”—and to intend the harmful consequence—that the authorization or permission happen.113Ch. 272, § 77; see Joyce, 998 N.E.2d at 1042. Thus, the corrected analogy supports an interpretation of “willfully,” as used in the animal cruelty statute, which does not require proof of intent to subject to unnecessary suffering or proof of evil intent at all, but instead requires only that Russo intended for her authorization or permission to occur.114Ch. 272, § 77; see Joyce, 998 N.E.2d at 1042; Krishnakumar, supra note 104, at 944–45.
Legislative intent can be inferred from word choice.115See Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”). The legislature here chose to use “knowingly and willfully” as opposed to “willfully and maliciously.”116See Ch. 272, § 77. Although available to the legislature at the time and included in other similar statutory provisions, the term pairing of “willfully and maliciously” was not utilized in this provision of the animal cruelty statute.117See Brannon, supra note 28, at 26 (quoting Hamdan v. Runsfeld, 548 U.S. 557, 578 (2006)) (“Courts will generally read as meaningful ‘the exclusion of language from one statutory provision that is included in other provisions of the same statute.’”). “Willfully and maliciously” are generally used together in statutes prohibiting acts of a more evil or deplorable nature, whereas “knowingly and willfully” are generally used in statutes prohibiting administrative acts lacking moral connotation.118Compare, e.g., H.R. 7519, 72d Cong. § 51c (1933), https://perma.cc/PR76-AXWU, and H.R. 7519 § 106, with, e.g., H.R. 7519 § 90. In a Massachusetts statute that criminalizes “kill[ing], maim[ing] or disfigur[ing]” domestic animals, the legislature opted to use “willfully and maliciously” instead of “knowingly and willfully.”119Mass. Gen. Laws Ann. ch. 266, § 112 (West 2014). This statute is one of the only other Massachusetts statutes dealing with cruelty to animals and was made effective on the same date as the animal cruelty statute.120Id. (made effective on November 16, 2004); ch. 272, § 77 (made effective on November 16, 2004); see Alison Schiebelhut & Megan Amos, Massachusetts Criminal Animal Protection Laws 32 (2018), perma.cc/M8WG-WQR9. Notably, not only does the legislature use the term maliciously, but the statute’s verbs are active, further solidifying the differences in interpretation that this statute would receive when compared to the animal cruelty statute.121Ch. 266, § 112. Courts have used the ill-motive definition of “willfully” when the active verbs chosen signal “moral turpitude” and abandon the need for uncovering an evil purpose when the proscribed acts are not the subject of condemnation.122Brogan, supra note 15, at 796. Thus, the legislature’s choice to use knowingly instead of maliciously combined with the absence of wrongful connotation in the verbs “authorize” and “permit” arguably demonstrates their intent to remove an ill-intent requirement from this statute’s application.123See Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (stating courts have a “duty to refrain from reading a phrase into the statute when Congress has left it out”); Russello v. United States, 464 U.S. 16, 23 (1983); H.R. 7519 § 114 (willfully “implies simply a purpose or willingness to commit the act, or make the omission referred to.”).
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B. Even Under the Interpretation of “Willfully” Used by the Court, Probable Cause is Clearly Satisfied Based on Russo’s Knowledge and Actions
Whether ill-intent as to the harmful consequences is required or not, Russo meets probable cause, which only requires the Commonwealth to provide, based on the totality of the circumstances, “reasonably trustworthy information sufficient to warrant a reasonable or prudent person in believing that the defendant has committed the offense.”124Commonwealth v. Brennan, 112 N.E.3d 1180, 1184 (Mass. 2018).
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1. Russo Acted Intentionally in Subjecting Tipper to Unnecessary Suffering
The Massachusetts Court of Appeals held that the legislature intended “to criminalize only situations where someone (or something) ‘subjected’ the animal to the harm at issue,” and held that failing to “intervene with the . . . end of an animal’s life has never been interpreted as ‘subjecting’ an animal to . . . harm.”125Commonwealth v. Russo, 218 N.E.3d 116, 120–21 (Mass. App. Ct. 2023). However, this situation is much less passive than simply failing to intervene.126See Commonwealth’s Brief at 15, Commonwealth v. Russo, 236 N.E.3d 1171 (Mass. 2024) (No. SJC-13531), https://perma.cc/YU6P-CCJU (detailing the crass comments made by the Russos when the officer visited their home). When the officer made his home visit to the Russos, he clearly stated that he was going to seek a court order to get Tipper the medical attention he required, putting Russo on notice of the probably illegal character of her failure to give Tipper care.127See Commonwealth v. Russo, 236 N.E.3d 1171, 1175 (Mass. 2024). Equipped with the knowledge that Tipper was actively suffering, Russo should have made some effort to alleviate Tipper’s pain.128See generally People v. Curcio, 22 Misc. 3d 907, 915 (N.Y. Crim. Ct. 2008) (“[N]o one is obligated to take on the responsibility of a pet, and . . . once the defendant elected to voluntarily take [the pet] . . . he became responsible for her care, i.e., . . . providing her with necessary medical treatment.”); State v. Rawson, 62 N.E.3d 880, 892 (Ohio Ct. App. 2016) (“The language of the statute called for appellant to take reasonable means to alleviate the dog’s suffering . . . .”). Thus, Russo’s failure to act subjected Tipper to unnecessary suffering, and not only did Russo know this based on the testimony of the veterinarian and officer, but she did so willfully by failing to take any affirmative steps to alleviate Tipper’s pain.129See generally In re Adoption of a Minor, 178 N.E.2d 264, 267 (Mass. 1961) (finding “willful” conduct when the defendants “intended the course of conduct which resulted in the neglect to provide”); Commonwealth v. Shedd, 5 N.E. 254, 255–56 (Mass. 1886) (finding intent may be inferred “from the circumstances attending the act, and from the conduct and declarations of the defendant”).
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2. The Court’s Finding That Russo’s Lie About Tipper’s Condition Was Only Speculative of Russo’s Intent for Tipper to Unnecessarily Suffer Is Conclusory
When referring to evidence the Commonwealth put forward to show Russo lied about Tipper’s condition and avoided Parlon, the Court stated, “[t]he reason why the defendant intended to avoid contact with the ARL—whether, for example, it was to prolong Tipper’s unnecessary suffering or to keep him in her care—is speculative.”130Russo, 236 N.E.3d at 1180. This conclusion is dismissive and unsupported when deeply analyzed. Russo learned that, in Tipper’s current state, he needed supplemental oxygen, could not stand, had bedsores, and had an “‘open necrotic wound’ where his skin was ‘sloughing off.’”131Id. at 1174. Parlon’s report of Tipper in Russo’s home further confirmed Tipper’s miserable condition, which consisted of raw bed sores, shallow almost non-existent breathing, and absolutely no medical assistance by way of oxygen or medication.132Id. at 1175. In response to the veterinarian and ARL officers’ evaluations, the Russos did nothing but ask Parlon to leave.133Id. at 1175–76. Before Parlon left the Russo residence, Russo’s mother implored Parlon not to put any information about Tipper’s condition in his report for fear of the legal consequences.134Id; see Commonwealth’s Brief, supra note 126, at 15 (“When the officer said the dog was clearly suffering and needed immediate medical attention, the mother told the officer to not put that in [the] report or God will curse you.”). The knowledge of Tipper’s deplorable condition coupled with the evasive actions concerning law enforcement and the utter lack of actions by way of medical attention support the conclusion that Russo intended Tipper to suffer and to do so unnecessarily. While emotions certainly played a role in Russo’s actions, avoidance cannot be relied upon as a basis for relinquishing culpability.135See generally Amanda W. Baker et al., The Role of Avoidance in Complicated Grief: A Detailed Examination of the Grief-Related Avoidance Questionnaire (GRAQ) in a Large Sample of Individuals with Complicated Grief, 21 J. of Loss & Trauma 533, 533 (2016) (“Avoidance behavior (engaging in any actions to avoid or escape particular thoughts or feelings) is a universal response to emotionally charged-situations that is most commonly associated with anxiety or fear.”). Russo’s actions, whether motivated by fear or otherwise, were purposeful and support a finding of probable cause.136See Millis Pub. Sch. v. M.P., 89 N.E.3d 1170, 1176 (Mass. 2018) (finding purposeful conduct includes inaction). Russo subjected Tipper to unnecessary suffering by purposefully ignoring medical advice and preventing Tipper from receiving any help or medical assistance to reduce or end his suffering.137Cf. State v. Rawson, 62 N.E.3d 880, 892 (Ohio Ct. App. 2016) (quoting Ohio Rev. Code Ann. § 959.131(C) (West 2013)) (finding defendant liable under a statute prohibiting omission of “any act of care by which unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue” for lack of any attempt to alleviate the animal’s suffering).
IV. The Court’s Ruling Results in Ramifications That Are Inconsistent with the Legislative Intent Behind the Statute and with Public Policy Considerations
The animal cruelty statute was enacted with the legislative purpose of preventing “both intentional and neglectful animal cruelty.”138Russo, 236 N.E.3d at 1177 (quoting Commonwealth v. Duncan, 7 N.E.3d 469, 473 (Mass. 2014)). “Preventing animal cruelty is a tenet of our collective humanity and a crucial public policy goal in Massachusetts.”139Commonwealth v. J.A., 85 N.E.3d 684, 688 (Mass. 2017) (Cypher, J., concurring). “[P]romoting the humane treatment of animals, as reflected in the statutes of the Commonwealth, ‘is a basic source of law when no previous decision or rule of law is applicable.’”140Duncan, 7 N.E.3d at 474 (quoting Commonwealth v. Yee, 281 N.E.2d 248, 252 (Mass. 1972)). In spite of these accepted principles, the ruling of the Court in Commonwealth v. Russo allows any pet owner to escape criminal liability under the animal cruelty statute by showing that they never intended or wanted their pet to suffer.141See Russo, 236 N.E.3d at 1180. A showing that they knew their pet needed certain medical attention and refused to provide their pet with such care will not be enough to show that they intended to subject their pet to suffering.142See id. Indeed, Russo needed simply to state that she never wanted to harm Tipper and only desired for Tipper to pass at home for her criminal liability to be relinquished.143Id.
It is important to note that public policy does not stand for the proposition that an owner always must euthanize their pet or be subject to criminal liability; rather, one should evaluate each situation on a case-by-case basis to prevent animal cruelty, determining when a pet owner’s failure to implement any supportive measures, such as supplemental oxygen and pain medication, or opt for euthanasia resulted in subjecting the pet to unnecessary suffering.144See Brief of Amici Curiae Martha Smith-Blackmore, DVM and Lenore M. Montanaro in Support of the Commonwealth of Massachusetts at 13, Commonwealth v. Russo, 236 N.E.3d 1171 (Mass. 2024) (No. SJC-13531), https://perma.cc/CYR6-3QQR. The most important tool to utilize in the euthanasia process is the veterinarian, who can analyze the pet’s disease process and assess it alongside any reported behavioral changes in the animal to determine what stage and pain level the pet is experiencing.145PetWorldInsider, supra note 2, at 11:40–12:35. Once the veterinarian determines the pet has reached a point of sustained suffering from which recovery is extremely unlikely, they will insist upon euthanasia as a kindness to the animal and the only responsible course of action.146Lap of Love, supra note 1; PetWorldInsider, supra note 2, at 01:25–02:30. The legislature has shown its support for veterinarian decisions by immunizing them from liability for reporting suspected animal cruelty and by requiring such reports to be made to officers who can act on them.147See Mass. Gen. Laws Ann. ch. 112, § 58B (West 2014). One such reportable condition creating maltreatment suspicion is an “owner declin[ing] euthanasia in cases of unrelievable suffering.”148Martha Smith-Blackmore & Lenore Montanaro, Am. Veterinary Med. Ass’n, The Veterinarian’s Framework for Identification and Response to Suspected or Known Animal Maltreatment 7 (2023), https://perma.cc/T962-BUUC. It follows that, by backing veterinarians and by enacting the animal cruelty statute with the purpose of preventing animal neglect, the legislature intended to criminalize a pet owner’s act of ignoring medical advice and refusing to mitigate their animal’s suffering.149See id. at 9; Commonwealth v. Duncan, 7 N.E.3d 469, 474–75 (Mass. 2014).
As society has grown to adopt a mindset that pets are part of the family, owners are more often unwilling to euthanize even when their pet is experiencing extensive pain.150Bernard Rollin, When Is It Ethical to Euthanize Your Pet?, The Conversation (Aug. 12, 2015, 6:18 AM EDT), perma.cc/7M7U-JFW6. There is an understandable hesitation due to the guilt associated with the chance of killing their pet before absolutely necessary.151Id. Some think that the determinative factor should be deterioration of the pet’s quality of life, shown by substantial changes in the pet’s normal behavior.152Felicia Kulp, Euthanasia: An Ethical Decision, Univ. of Md. (2009), https://perma.cc/5TYP-GLA7. While quality of life is a part of the analysis, ultimately, the disease process sheds more light on the true status of an animal’s health.153Lap of Love, supra note 1. Once a trained veterinarian has determined that recovery is not realistic and the pet’s quality of life has deteriorated, euthanasia or medical protective measures—as determined by the veterinarian—are the only ways to prevent unnecessary suffering.154See Lap of Love, supra note 1; Rollin, supra note 150. Because Tipper had reached this point according to the veterinarian’s advice and the officer’s report, Russo’s refusal to mitigate Tipper’s pain in any way resulted in subjection to unnecessary suffering.155See Commonwealth v. Russo, 236 N.E.3d 1171, 1173–75 (Mass. 2024). It is a clear demonstration of neglect to choose not to provide your pet with the medical attention that a veterinarian has determined necessary to prevent immense pain.156Smith-Blackmore & Montanaro, supra note 148, at 7. Russo did just that and yet was not found in violation of this statute.157See Russo, 236 N.E.3d at 1173.
Conclusion
In Commonwealth v. Russo, the Court improperly defined “willfully” in the context of the animal cruelty statute so as to punish only those who intended for the animal to suffer unnecessarily and not those who intentionally permitted their pet to suffer.158See id. This statutory interpretation is in error, as it frustrates the legislative intent behind the statute, and it relies on flawed analogical reasoning. The Court incorrectly read into the statute a necessary element of malice relating to the harmful consequences of the violative conduct, which is unsupported by the clear language of the statute or regular statutory interpretation frameworks. As a result, the Court’s opinion as it stands, prevents the statute from executing its purpose—instead permitting pet owners to allow their pet to be subject to unnecessary cruelty, suffering, or torture, as long as the owner never intended that suffering to occur. Such a result has shocking ramifications on the liability of pet owners and the legitimacy of the veterinary practice, inhibits the statute’s legislative purpose of preventing animal cruelty and neglect, and conflicts with the public policy of promoting the humane treatment of animals.
