“Physical deformity calls forth our charity”. ~ Clarence Darrow

A Trilemma

Trilemma:.[Noun] A situation in which a difficult choice has to be made between three undesirable alternatives (Oxford English Dictionary).

The health issues concerned with pedigree dog breeding trilemma involves three options that can be taken ignore, illegalise, improve. 1) Ignore it – do nothing and allow breeding to continue. 2) Ban breeding of breeds with significant health issues. 3) Combine multiple measures to improve dog health.

‘Actus Reas’ – Qualzucht

There are two things that need to be proven in order to treat something as a criminal act – one is the action itself and the other is the intent to carry out that action. In law terminology, the first part is known as Actus Reas and the second part is known as Mens Rea. The latter term is so important because it can be the difference between different types of crime, or even whether a crime was committed at all. Take murder and manslaughter, for example; you can hit someone with your car accidently without the intent to kill anyone. This is manslaughter: there is an Actus Reas (road death) but no Mens Rea (intention).

In this blog I explore the Actus Reas of breeding dogs with genetically inherited conditions and/or body shapes (known as confirmation) significantly harmful to welfare. In Germany there is a word for this type of breeding: Qualzucht. This translates as ‘torture breeding’. The term appeared after the German Animal Welfare Association decided that legislation covered in the country’s Animal Welfare Act was insufficient to protect domestic pets from harm. “In Germany Austria and Switzerland it has been a crime for over a decade to carry out the deliberate breeding of such animals. Qualzucht does not only apply to conformation: it is equally appropriate for predictable inherited diseases”. So, what does qualzucht look like and what trends are evident in the UK?

The British Veterinary Association made their position clear on possibly the most well-known aspect of poor-welfare breeding, brachycephaly (where short nosed dogs find it difficult to breathe properly). Yet there are other genetic predispositions affecting the wellbeing of thousands of UK dogs. The Canine Inherited Disease Database lists 156 conditions, in 11 categories, associated with disease and conformation. A way of emphasizing what I feel forms the Actus Reus of this potential crime are breed specific examples from each category, shown below.

It is important to note that the majority of inherited disorders are invisible. Physical traits often receive the most public attention because of their visual impact, yet invisible hereditary conditions can be just as harmful to health and longevity. In fact, ‘unseen’ disorders can be repeatedly and unknowingly selected for as they are genetically linked to genotypes for physical traits – for example, deafness in Dalmatians has been linked to coat coloration. It is arguable that damaging physical traits and any diseases they are unknowingly linked with (both of which I call ‘conditions’), consciously or unconsciously selected for, are qualzucht.

Disease and breed examples from the 11 categories of inherited conditions

Mens Rea’ – Social Constructivism

Now we need to look at Mens Rea. How would a court prove intent to commit a crime via breeding? The table below shows four ways a person can be culpable of committing a crime under the law’s four types of intent.

It can be difficult establishing specific intent in any kind of animal abuse case and this would be no different with qualzucht breeding. There are organisations dedicated to prosecution under animal protection laws, such as Animal Legal Defence Fund, which have won prosecutions under both specific and general intent. However, establishing specific intent takes considerable time and legal expertise. Let us, therefore, look at how an argument could be made for establishing general intent for poor-welfare breeding.

Establishing purposeful, knowing and reckless intent requires that perpetrators understand the consequences of their actions; establishing negligent intent requires that although the perpetrator did not understand, any reasonable person would understand the consequences. Mens Rea for breeding requires the public’s sufficient knowledge and understanding of the harm that certain breeding practices can cause. Knowledge would need to reach a threshold where society considers certain breeding practices harmful and, subsequently, a crime. Two theories support this argument – ‘Social Constructivism’ and ‘Green Crime’.

“Behaviours become crimes through a process of social construction. The legal status of a behaviour—whether it is defined as a crime—lies not in the content of the behaviour itself but in the social response to the behaviour”. This is the social construction theory of crime, defining crime by the ‘collective conscious’. This means that the actions that humans carry are not inherently ‘bad’ or ‘good, ‘criminal’ or ‘legal’, instead they are assigned these labels by others in society who view certain acts as a form of wrong doing that may threaten society’s moral order. So for society to identify certain types of breeding as deviant, before the act is recognised as criminal, there needs to first be recognition of harm.

Non-criminal acts against animals or the environment, which nevertheless cause harm, are considered Green Crimes. “Social thought associated with the green and animal liberation movements are especially challenging to pre-existing conceptions of justice”. Green Crime theorises that non-human animals have intrinsic value separate to their ability to serve human purposes. Acts against animals constitute harm to sentient beings, irrespective of any crime consequently occurring towards humans (e.g. property damage). The study of social harm, rather than designated crime, is known as zemiology.

When enough members of society recognise inherent harm in breeding practices, a threshold will be reached whereby 1) breeders should understand the deleterious consequences of their actions and therefore behave recklessly if they continue or 2) reasonable members of society would not carry out those breeding practices and therefore a breeder who does behaves negligently. This provides the ability to prove culpability through general intent Mens Rea.

Of course, the act of breeding and/or owning a qualzucht breed could be deemed a strictly liable crime. This is a different type of crime in which proof of negligence or intent is not required. Sections under the Dangerous Dogs Act, such as dogs dangerously out of control and keeping a dangerous species, are strictly liable crimes. Deeming qualzucht a strictly liable crime would negate the inherent difficulties in proving Mens Rea.

We have explored what could potentially be deemed criminal acts and culpable intents. Intentdepends upon public education and a social acceptance of harm. Looking at the three ‘sides’ of the trilemma highlighted in the introduction, the image below reminds us of issues yet to explore.

Moving on, we will look at how breeds would be chosen as ‘worst affected’ and what the morbidity and severity of cases is currently (as up until now the issue has been mostly ignored). In addition, what does qualzucht legislation look like in Europe and what are the consequences of potential illegalising through a ban? And lastly, what problems arise when we see that a journey to improvement takes time, meaning individual dogs still suffer in the interim?

Ignore – Morbidity Vs Severity

Domestication from wolves to dogs has brought many unforeseen health issues. Some conditions are more prevalent in the UK than others and severity differs between conditions. Whose responsibility is it to decide which breeds are most affected?

Two organisations collect, monitor and disseminate information relating to inherited conditions: The Kennel Club (TKC) and the British Veterinary Association (BVA). These encourage veterinarians to report surgical procedures on Kennel Club registered dogs, including caesareans, to TKC (although not mandatory). Information is used by TKC to study disease inheritance and suggest ways forward in health, standards and campaigns.

Specific bans, therefore, would either A) be agreed upon by the BVA and TKC based on evidence or B) passed by government without agreement of the BVA or TKC. In the past TKC has come under pressure to do more to improve health of pedigree dogs, including pressure to dissolve Crufts, the championship canine conformation show. Increased pressure from media attention, such as Pedigree Dogs Exposed, may cause action to be taken without TKC’s cooperation. If the BVA and TKC did identify breeds not to be bred, two aspects of harm could be considered: morbidity and severity. Indeed, data on these areas indicates the problem’s current extent if we ignore the issue. Problems if ignored can only worsen.

Morbidity is the number of dogs of a particular breed affected. Severity is how catastrophic conditions are to health and welfare. An extremely painful condition affecting 0.05% of a breed could arguably be less impactful than conditions compromising welfare to a lesser degree (e.g. deafness), affecting 80% of the breed. With morbidity it is important to consider which breeds are becoming more popular and may end up having more animals affected. With severity, it is important to consider breeds may be affected by more than one condition, making implications more severe.

Large-scale studies have been done by the Dog’s Trust and TKC into morbidity and severity. These provide evidence on which arguments for banning breed proliferation could be based. For morbidity, research has identified 192 Kennel Club registered breeds with inherited conditions and details what proportion of each breed is affected. For severity, research gives disorders due to conformation, disorders exacerbated by conformation and disorders not linked to conformation a GISID rating (Generic Illness  Severity Index for Dogs) – a scoring system of severity.

Brining these two aspects together, researchers measured the number affected and the severity of conditions. If an animal suffered from more than one condition, GISID scores accumulated. This led to a quantification of the number and severity of conditions in each breed, also identifying breed popularity, giving an idea of how severity links with morbidity and interlinks with UK trends.

It is evident there are a number of ways that organisation such as TKC and the BVA could distinguish breeds that should arguably not be bred. Equally apparent is the availability of evidence for charities such as the Dog’s Trust and RSPCA to lobby for instating UK qualzucht laws. The power to criminalise certain practices rests with organisations commissioning and processing such data as well as the public social conscious.

I have not listed specific breeds which I believe should be allowed to decrease due to restrictions, but a number of breeds clearly crop up consistently (in  published data, media attention and through personal experience). Some breeds are arguably either beyond the help of combined measures or such measures would take so long to combat the issues that suffering of the individuals in the intervening time is beyond justification. Examples I offer are German Shepherds, Boxers, Pugs, Bulldogs, King Charles Spaniels, Basset Hounds and Great Danes. Being reflexive, these are largely driven by my own experience, supported by literature as much as possible. But, if such breed specific bans were put into place, what might the consequences be?

Illegalise – What a ban may bring

Making practices illegal shows governments recognise harm caused by a deliberate act, demonstrating a zero tolerance policy, rather than mitigation. What does a ‘qualzucht’ ban look like? In Switzerland, qualzucht legislation dictates ‘stress load’, capturing the stress of pain and suffering due to certain conditions. Legislation is founded upon research which takes into account hereditary prevalence, wellbeing and bodily deformities. A proportion of UK residents advocate such action: in 2018, 80,000 people signed a petition to ban brachycephalic breeding. Nevertheless, it has been documented that when bans are put into place there can be unintended consequences.

Pushing breeding and ownership underground:

Breed Specific Legislation (BSL) already exists in the UK. Current legislation dictates 4 breeds banned under the Dangerous Dogs Act. However, Pit Bulls are still bred within the UK illegally, as the ban has pushed breeders of Pit Bull types underground. A freedom of information request found 3,000 Pit Bull types exempted in Britain in 2015. These were found ‘not dangerous’, but still present in the UK despite the ban. It is likely that, by introducing bans on certain breeds, underground breeders will try to cheat the system. This has added problems of individual dogs not be registered with vets or TKC, due to illegal status, rendering health issues and genetic contributions undetected. To look at a specific qualzucht example, a report in Switzerland identified that many breeds falling under the prohibited breeding system, (Pugs, Bulldogs and Boston Terriers), were “widespread despite [qualzucht] law and regulation”. The report identified imported animals as well as uncontrolled and non-certified kennels as sources of these breeds.

The myth of hybrid vigour:

A common myth is that crosses between two breeds are inherently healthier because of ‘diluted’ genetics. In fact, a study in 2013 demonstrated mixed-breed dogs are almost as predisposed as pure breeds to 13 heritable conditions. If certain breeds were banned, more breeders may crossbreed individuals to meet consumer demand, without impinging on the ban. Deleterious conditions may proliferate in increasingly popular crossbreeds, requiring further action. This echoes similar patterns in other activities that receive a ban. A report found that when ‘legal highs’ were banned health service reports of class A drug use increased. A heightened intensity of breeding of other breeds, or mixed breeds, may nullify the effect of any ban.

Sentencing:

There is the difficulty of what sentences should be given to those who breach qualzucht bans. In Europe, standard sentences include fines and jail time. However, fines are unlikely to be a deterrent to breeders making large sums of money through breeding dogs in demand. There is little credible evidence that incarceration acts as a criminal deterrent. Other potentials include qualzucht perpetrators appearing on an animal abuse register, but this would have little effect if the act is already taking place in a ‘black market’ environment. Another consideration may be an AniCare method, with an educational approach to try and reduce reoffending. Any of these methods will require research, investment and monitoring.

Difficulty in policing:

One animal welfare ban firmly in the public eye is the fox hunting ban of 2005. One aspect of this ban that became apparent was the difficulty in policing and upholding the law, especially in rural areas. In 2009 the Telegraph reported “the Association of Chief Police Officers is to issue new advice acknowledging the difficulty of compiling evidence against illegal hunting”. Similar issues faced by police dealing with hunting legislature would similarly occur with banning certain breeding practices, as there is often a lack of data collection, and enforcement agents in the majority of animal crime legislation.

Breeding happens in the home, out of sight. It would be difficult to identify which animals fall into banned categories with degrees of mixed breeding (as mentioned previously). Animals may not technically be pure breeds that fall into the banned category, but nevertheless still show the traits that are being banned. This would take considerable up-skilling and training of police or collaboration with non-government animal-welfare organisations such as the RSPCA. Because these animals would more than likely be unregistered, this will make policing even harder. TKC already state that only 30 per cent of purebred dogs are currently registered, which would only worsen. To give a qualzucht example, it is noted that there have only been a few convictions under prohibitive law, and this may be due to similar policing difficulties.

Improve – Combined measures

So, if we ignore the issue, we have seen the types of conditions that can affect the welfare of many breeds of dog (the Canine Inherited Disease Database lists 159 affected breeds and acknowledge that this is not an exhaustive list). Equally, if we seek to illegalise practices there are unintended consequences that can complicate and even reverse the intended actions. Finally, let us look at the third side of the trilemma: improvement. What would ‘combined measures to improve health’ look like and what are the negative implications of this approach?

Media is a big driver for generating interest in purebred dogs, including TV, social media and celebrity culture. Celebrities are pictured with dogs which are predisposed to some of the highest welfare compromising issues. It has been suggested that one of the ways forward to minimise the number of dogs with conformation issues is to curb the exposure that the public, especially the young public, have to such media. A potential ban on using welfare-compromised breeds in advertising may be a ‘halfway step’ toward banning those breed outright. The campaign group CRUFFA (Campaign for the Responsible Use of Flat-Faced Animals) advocate such an advertising ban, as do a number of welfare charities.

Education will always be at the forefront of changing perception. Informing potential puppy buyers about factors influencing dog welfare and breed problems is important. Veterinary associations and TKC are promoting such educational measures, such as ‘The Puppy Contract’ launched by the RSPCA to encourage responsible breeding. There are currently voluntary heath schemes run by TKC, such as the ‘Pug Club Health Scheme’, educating breeders of specific breeds. There are suggestions to make these educative schemes compulsory for affected breeds. The BVA have suggested educational campaigns on TV and radio programmes and circulating imagery such as comparison CT scans of brachycephalic and ‘normal’ dogs.

Left, a brachycephalic breed and right a non-brachycephalic breed

I suggest these more impactful visual images highlighting wider recognised problems (such as flat-nosed breeds) are valuable precursors to conversations about ‘hidden’ problems not necessarily forefront of public attention (such as deaf Dalmatians, or kidney problems in Highland Terriers).

Breed Standard considerations are also highly topical. TKC are consistently challenged by lobbyists to change pedigree breed standards to improve welfare. Conformation issues, and underlying medical conditions genetically linked to physical traits, are often perpetuated by pedigree bloodline criteria and competition standards. Thus, one component of combined measures would be a revision of breed standards deleterious to health.

There are steps that are being taken to ‘breed in’ traits that improve welfare, for example elongating the faces of brachycephalic breeds. There have been more breeding clubs that disseminate information about traits that still ‘fit’ the standard but are less compromising, such as the example below from a website promoting longer muzzle length in French Bulldogs.

There is evidence of this being implemented by TKC: “Each revised standard now starts with a general statement advising breeders and judges that they ‘should at all times be careful to avoid obvious conditions or exaggerations which would be detrimental in any way to the health, welfare or soundness of this breed’. Breeders and judges are encouraged to report any perceived problems to a new ‘Breed Watch’ section of the KC’s website”.  These are positive steps forwards, although revisions were only made to 78 of the 209 breed standards.

Welfarism vs. Abolition

If media, education and breed standard alterations could make headway into improvement of harmful breeding, why is the ‘improve’ aspect of the trilemma an issue? The answer lies in the argument between welfarism and abolition. Welfarism, obviously, rests on the concept of welfare whereas abolition is underpinned by the assumption of rights. Welfarism is captured by the efforts mentioned in the previous section, i.e. striving to improve the health and livelihoods of domestic animals through strategized methods of care. Yet it is the notions of abolition and animal rights which bolster the idea of ‘breed improvement’ being part of the trilemma.

Animal rights (rather than welfare) would require that we ‘stop our institutionalised exploitation of non-human animals’. This means organisations promoting humane uses of animals through regulatory changes do not go far enough. Gary Francione, a staunch abolitionist, criticises the welfarist position, believing that it “rests on the notion that there is a qualitative difference between the minds of humans and nonhumans and that this means…that there is a morally relevant distinction between the sentient experiences of humans and other animals”.

For example, laws against grievous bodily harm towards humans do not require that perpetrators should reduce the amount of pain caused to a socially acceptable level. It requires that the crime is either 1) not committed or 2) criminally punished. An analogy with pedigree breeding which causes suffering would be that the act is not committed at all instead of formulating long-term strategies whilst, in the meantime, allowing animals to suffer without perpetrator punishment.

Whilst improvement strategies run their course there would still be opportunity for counter-messages to proliferate. For example, in 2014 there was outrage that a ‘deformed’ German Shepherd won Best in Breed (below). If such breeding were illegal there may be less scope for media coverage that counteracts reformation strategies.

Conclusion

The pros and cons of the three strategies of the trilemma are outline din the table below.

I believe further research into ‘quelzucht’ practices could an provide a strong argument for pedigree breeding (that compromises welfare) to be deemed criminal. Evidence from fields of law, veterinary medicine and anthrozoology underpin such a standpoint, as does identifying elements of ‘qualzucht’ law in European countries to serve as a model for UK legislation. A clear strategy would need to be formulated, striving to anticipate the cons stated above. I conclude that the government, along with TKC and BVA, need to adopt an improvement policy for breeding as a whole whilst identifying breeds whose current plight is at the point where a welfarist approach is neither justifiable nor feasible. Balancing my personal leaning towards animal rights with realistic foresight, I propose that the government should instate a qualzucht law for professionally identified breeds and work hard to police and punish breeches of the law.

References on Page 2…

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