MARYANN RUSSO DECLINED medical attention or euthanasia for her 14-year-old dog Tipper, and now finds herself before the Supreme Judicial Court, accused of violating the state’s animal cruelty statute and facing potential jail time.
The state law, among other things, criminalizes an owner or person caring for an animal who unnecessarily fails to “provide it with proper food, drink, shelter, sanitary environment … or knowingly and willfully authorizes or permits it to be subjected to unnecessary torture, suffering, or cruelty of any kind.”
Judging from the comments of the justices at Wednesday’s hearing, the case is no easy call and the stakes are high. Russo could face seven years in jail if she is found guilty and Massachusetts would become the first state in the nation to decide that refusing to euthanize a pained and ill pet constitutes animal abuse.
The case hinges on what it means for a a pet owner to subject an animal to unnecessary torture, suffering, or cruelty. A lower court and an appeals court have already rejected the state’s charges against Russo, and the high court is considering whether to affirm the earlier dismissal or send the case back for a trial.
“We have not found, nor have the parties cited, a case 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,” Associate Justice Rachel Hershfang wrote for the appeals court. “We decline to extend the statute in this way.”
On Christmas Day 2020, Russo’s family brought Tipper to an animal hospital, filings state. The cockapoo had a large mass on his side, which a veterinarian recommended surgery to remove, but the family declined and took Tipper home instead. His health declined precipitously over the next few weeks. He became anemic, unable to stand or walk, suffered from bed sores, and developed a necrotic mass on his side.
When Russo brought Tipper back to the animal hospital, a veterinarian recommended euthanasia, advising Russo that nothing could be done to control the “super painful” condition. At that point, Russo asked that the mass be removed, which the state says the veterinarian declined because the dog probably would not survive.
Russo decided to take Tipper home, suggesting she would bring him to another veterinarian. But the vet, concerned that the family would not act, reported Russo to the Animal Rescue League of Boston.
After Russo claimed Tipper was returning to good health, an investigator with the Animal Rescue League checked on the dog in early February 2021, finding him wearing a diaper, lying still and stiff, “in the presence of a religious statue and in the company of his family,” according to Russo’s court filing. Russo’s brief notes that the investigator did not allege that the dog was being kept in unsanitary conditions or showed signs of being dirty or unkempt, but seemed to be thin, with raw looking sores, and uncomfortable when moved.
“To suggest Russo consciously and intentionally caused Tipper to suffer is without reason and not supported in any way by the evidence,” Russo’s attorney, Jason Bolio, wrote in a filing with the court. “This is not abuse, this is loving care of a family member who is near the end of their life.”
The investigator determined that Tipper was suffering and needed medical attention. According to the appeals court, “the family again declined to euthanize the dog or get him medical attention,” and the defendant’s parent said that the dog would “die at home.”
After being asked to leave, the investigator alleged that Russo violated the animal cruelty statute, obtained a warrant from Quincy District Court to remove Tipper, and had the dog euthanized.
Russo and her late father memorialized Tipper in a children’s story called “Tipper and the Shamrock Beads,” which was published in December 2023 by Christian Faith Publishing.
SJC justices on Wednesday struggled with the obligation of an owner to mitigate suffering she did not cause, and whether the statute clearly covers failure to do so. It’s not clear if refusing to take a dog with a broken leg for medical care would be covered by the statute, said Bolio in response to a hypothetical posed by Justice Frank Gaziano.
“What I’m stuck on is the word ‘willfully,’” Gaziano said. “Sometimes it means you intend the action, and sometimes it means you have to intend the harmful consequences.”
The state is not arguing that Russo had to euthanize her dog, assistant district attorney Tracey Cusick told the justices, but that she violated the statute because she willfully chose to allow the dog to suffer terrible pain.
“Her actions were knowing and willful,” Cusick said. “She knew what she was doing, she knew what the results would be, and still she proceeded with this course of conduct.”
If the statute is read as “the animal has to be subjected in some way by a human to suffering, as opposed to just natural causes, would you say there’s still probable cause here?” Justice Elizabeth Dewar asked Cusick.
The language “encompasses” action by a person, “but is not limited to that,” Cusick said.
An earlier version of the statute was somewhat broader, said Justice Dalila Wendlandt, but tightened to include the “subjected to” language. There are some specific things that an owner could be penalized for withholding – including food, water, or protection from the weather – but medical care is not among them, Wendlandt and Gaziano noted.
“Under the statute, unnecessary suffering – which I think this animal endured, unfortunately – that comes in the ‘subjected to’ category,” rather than the “pure neglect” section of the statute, Gaziano said.
Bolio argued that Tipper “was not suffering unnecessarily. He’s dying a natural death.” Gaziano pushed back, noting that there was a “definite alternative that would end the dog’s suffering” and Russo “deceived” the vet and inspector by suggesting there would be further treatment or that Tipper had recovered.
Veterinary and animal rights groups submitted briefs arguing that owners should not be free from prosecution if they choose to let animals under their care suffer.
The Committee for Public Counsel Services submitted a brief arguing that public interest weighs against interpreting the statute to require euthanasia or veterinary care for pets suffering from natural causes. Its vagueness in laying out specifically what acts and omissions are criminal could lead to arbitrary and erratic prosecution of people who cannot afford the high cost of care, the group argues.
Though other states, including Florida, New York and Ohio, agree that pet owners must seek veterinary care, Massachusetts would be charting new ground if the courts find an obligation to seek euthanasia.
Justices seemed inclined to send the case back to trial. The question of knowing that the dog was in pain and acting in a way that prolonged it “seem to be trial issues,” Gaziano said, a point with which Justice Serge Georges agreed.
“You’ve got all these indications that this dog is in absolute distress,” Georges said. Add in Russo’s interactions with the vet and Animal Rescue League and the justice expressed bafflement that the case was dismissed without trial.
If the statute requires that Russo willed the dog to suffer, dismissal was likely appropriate, Justice Scott Kafker said. But if that is not the standard, “probable cause is certainly here.”
“Can you construe this language to say that ‘by omission, you can subject someone to’?” Georges asked Cusick. “By omission, not by doing something affirmative, that you’re subjecting an animal to this by doing nothing?”
“I would suggest we can,” Cusick said. “Because while death is inevitable for all living creatures, suffering and pain is not.”