House Passes Bill Amending “Crush Video” Prohibition

by John M. Simpson.

On October 22, 2019, the U.S. House of Representatives passed H.R. 724, entitled the “Preventing Animal Cruelty and Torture Act” or “PACT Act.”  The measure would retain the existing prohibition in 18 U.S.C. § 48 on the creation and distribution of “crush videos” but would also criminalize an intentional act of animal crushing.  

The bill defines “animal crushing” to include conduct in which one or more living non-human mammals, birds, reptiles, or amphibians is purposely crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury.  A “crush video” is defined as any photograph, motion picture, video or digital recording that depicts animal crushing and is obscene.  Crush videos apparently appeal to individuals with a particular sexual fetish.

In addition to the existing prohibition on the creation and distribution of crush videos, H.R. 724 would make it unlawful for any person “to purposely engage in animal crushing in or affecting interstate or foreign commerce.”  A violation of the law would be punishable by fine and imprisonment of not more than seven years.

Among other situations, the law would expressly not apply to customary or normal veterinary practice; slaughter of animals for food; hunting, trapping, fishing or similar lawful activity; pest or predator control; medical or scientific research;  conduct necessary to protect the life of property or a person; and animal euthanization.  The anti-crushing prohibition also does not apply to “unintentional conduct that injures or kills an animal” which, presumably, would insulate a person from prosecution who, for example, unintentionally runs over an animal with an automobile.

The current version of 18 U.S.C. § 48 and H.R. 724 embody the congressional response to the Supreme Court’s decision in United States v. Stevens, 559 U.S. 460 (2010), which involved a prior version of 18 U.S.C. § 48 that broadly criminalized the portrayal of harmful acts towards animals.  It was recognized that the main purpose of the prior law was to prohibit crush videos, but the statute cut a broader swath, in the case of Stevens, supporting the indictment of an individual convicted for the sale of videos that depicted pit bulls fighting other animals.   The Supreme Court affirmed the vacation of the defendant’s conviction on the ground that the statute was facially unconstitutional under the First Amendment.   As written, the statute covered crush videos, but also covered conduct towards animals that would not even be defined as cruel.  The statute therefore was overly broad.  The Court signaled, however, that a statute written to narrowly ban crush videos might very well pass constitutional muster.