The crime of animal mistreatment: statutory elements, social adequacy and proportionality

Abstract

The offence of animal mistreatment (art. 32 of Law No. 9.605/1998) contains indeterminate statutory elements and prescribes an identical penalty framework for factually distinct situations, which suggests a violation of the principles of legality and proportionality. This article seeks to examine the offence of animal mistreatment in order to propose interpretive parameters oriented by determinacy and proportionality. To this end, it is necessary to define what is meant by “committing an act of abuse” and “mistreatment,” on one hand, and to delineate the protective scope owed to each group of animals, on the other. In this context, the concept of social adequacy offers dogmatic advantages over the principle of de minimis non curat lex and the doctrine of permissible risk creation, serving as a parameter for narrowing the statutory countours of criminal liability. Finally, the proposed framework is assessed through examples of conduct that are ambiguous with respect to their legal relevance.