Most animal cruelty on farms is legal. A court ruling could change that.

In 2018, Erin Wing worked for two months at a 1,000-cow dairy farm in Chambersburg, a small Pennsylvania town about three hours west of Philadelphia, where she was one of 10 employees who milked and fed the cows. But something set her apart from the other workers: Wing wore a hidden camera, living a double life as an undercover investigator for Animal Outlook, an animal advocacy nonprofit.

During her stint, Wing captured a variety of horrors on film. Some were inhumane but legal and not uncommon in the dairy industry, like removing calves’ horns —which is done to prevent the horns from injuring workers — without pain mitigation like anesthesia or anti-inflammatory drugs.

But she also documented acts of cruelty that seemed wholly gratuitous, like employees beating, stomping on, and kicking cows, and many others I’ll omit for the sake of readers’ peace of mind.

“All told, we documented over 300 incidents that we believed violated Pennsylvania’s laws,” Will Lowrey, an attorney with Animal Outlook, told me.

The Pennsylvania State Police opened an investigation, and over a year later it announced that the district attorney of Franklin County in Pennsylvania, where Chambersburg is located, would not press charges against the farm as a corporation, the owner, and 14 current and former employees. The police also assured the public that the farm had taken steps to improve training and animal handling procedures. (The Pennsylvania State Police declined an interview, Martin Farms could not be reached for comment, and the Franklin County district attorney did not respond to requests for comment.)

The DA’s decision wasn’t surprising. Many undercover investigations that document cruelty to farmed animals don’t result in prosecution, and when they do, it’s usually over the more egregious, often one-off acts of cruelty conducted by stressed-out, low-paid workers. The routine yet inhumane practices instituted by the owner — and often pervasive throughout the industry — go unexamined, even though they account for much more animal suffering.

And with 9 billion animals churning through the meat, dairy, and egg industries each year and just a handful of undercover investigators documenting how they’re treated, consumers and policymakers are left in the dark. This system persists because farmed animals are largely invisible in the law.

But due to a quirk in Pennsylvania’s legal code — the ability of private citizens to challenge government officials’ decision not to prosecute — Animal Outlook was able to circumvent that invisibility and set a new precedent for animal law. But before I get to that, it helps to understand the legal system under which animals are farmed.

How the animal agriculture lobby erased farmed animals from the law

At the federal level, there are no laws that protect animals while they’re on the farm.

The Animal Welfare Act, which sets minimum standards for animals used in zoos or research or sold as pets, specifically exempts animals raised for food. The Humane Methods of Slaughter Act and the 28-Hour Law (the latter which covers farmed animals in transport) are weakly enforced, and both exempt poultry, which make up 98 percent of US land animals raised for food.

Every state has an anti-cruelty statute on the books, and a few exempt farmed animals altogether, while most exempt what are considered “customary farming practices” — or as Pennsylvania law puts it, “normal farming operations.” It doesn’t matter how inhumane those practices may appear as long as they are commonly used, year after year.

“In most of the United States, prosecutors, judges, and juries no longer have the power to determine whether or not farmed animals are treated in an acceptable manner,” wrote animal law professors Mariann Sullivan and David Wolfson in their seminal text on state and federal anti-cruelty exemptions. “The industry alone defines the criminality of its own conduct.”

As a result, only more extreme acts of cruelty — like some of the acts documented at Martin Farms — are potentially prosecutable under the law. But they’re typically only uncovered if a group like Animal Outlook sends an investigator onto one of America’s tens of thousands of factory farms, which leaves most abuse undocumented and unaddressed.

And even if an investigator can gain employment on a farm, political and cultural factors pose major barriers to seeking justice for the abuse they document. Factory farms tend to be located in rural areas, where they are woven deeply into the fabric of the region’s politics, economy, and culture, so sheriffs and district attorneys are often reluctant to take action. When they do, it’s usually against low-level employees who are disproportionately immigrants and are labeled as “bad apple” workers while (typically white) owners and management often get off scot-free.

“You see this syndrome where the owner says, ‘Oh, my god, I’m so shocked — this is terrible. We’re firing them right away and they should be prosecuted’,” Sullivan, who teaches animal law at Cornell Law School and hosts the Animal Law podcast, told me. “So the very low-level people get prosecuted for this gratuitous cruelty. … And they’re eligible for being thrown under the bus by the owners.”

This kind of outcome for undercover investigations happens frequently enough that it’s causing some in the animal protection movement to critically examine the carceral approach to investigative work.

By getting laws passed, animal advocates have been able to ban or restrict the use of some customary farming practices, mostly cages and crates for hens and pigs, in 14 states. But the legislative route is slow and difficult; to even get to a full vote, farmed animal welfare bills first have to make it through the statehouse’s agriculture committee, where they usually go to die, as they’re often chaired by industry-friendly lawmakers.

Advocates have found some success through putting the vote directly to the people via ballot measures, but those are costly, and fewer than half of US states allow such direct measures.

This challenging legal landscape, and the political and cultural factors that block the gaps that could overcome it, have long stymied animal lawyers and advocates who’ve amassed thousands of hours of footage of animal abuse through their undercover investigations. But due to the above-mentioned quirk in Pennsylvania law — the ability to petition a court to overturn the district attorney’s denial of prosecution — Animal Outlook shifted what practices can be deemed “normal” in the first place.

The organization’s initial petition was denied, so it appealed to Pennsylvania’s Superior Court. Last month, in a precedent-setting decision, the court’s three-judge panel ruled that the lower court was required to order the Franklin County district attorney to prosecute Martin Farms for animal cruelty, including over common practices like dehorning without pain mitigation.

“The most obvious evidence overlooked by the trial court was that concerning the dehorning of calves…” the decision reads. Citing Dr. Holly Cheever, a veterinarian who reviewed the investigative footage, the decision went on to state that “the technique used by Martin Farms as shown in the video caused the calves to be ‘in agonizing pain, shown by their violent thrashing and bellowing.’”

The judge characterized the district attorney’s position on exempting dehorning without pain mitigation as “absurd,” creating a crack in the meat industry’s ironclad legal armor.

Animal Outlook’s investigation could influence the future of animal law

“I can’t even describe the feeling I had,” Wing, the investigator, said about hearing of the ruling for the first time. “I have thought of Martin Farms and that investigation for years. … I definitely have had nightmares about what I witnessed there.”

Erin Wing, an investigator with the animal advocacy group Animal Outlook, shares fruit with a cow at Wildwood Farm Sanctuary & Preserve in Newberg, Oregon. In 2018, Wing spent two months undercover at a dairy farm in Pennsylvania.
Jo-Anne McArthur/#unboundproject/We Animals Media

“I do think it’s an amazing and important case,” Sullivan told me. “Obviously it’s limited to Pennsylvania, but the fact that an appellate court looked at this situation and was clearly horrified … feels like a very big deal.”

The case would still be influential if it had merely centered on the more malicious acts of animal cruelty, but what makes it more important is that the court also questioned whether dehorning calves without pain mitigation should be considered “normal” in the first place (and if not, it could then be prosecutable). The court also deemed Martin Farms’ dehorning not normal because employees roughly handled the calves and performed dehorning at an age when the practice is more painful.

Since Pennsylvania’s anti-cruelty statute exempts “normal agricultural operations,” this decision could lead to advocates challenging other common farming practices in the courts.

Dehorning without pain mitigation exists in a “normality gray zone” because while some dairy industry organizations don’t like it, a lot of farmers still do it because they don’t think pain mitigation is necessary, they’re unfamiliar with the available drugs, or the drugs take too much time to administer. A 2021 survey of 217 dairy farmers in Wisconsin, which ranks second in dairy production, found that only half used pain relief for the procedure.

Does that make it a normal agricultural practice? When does a practice go from normal to abnormal, from legal to illegal? As battery cages for egg-laying hens get replaced by cage-free systems, what will the threshold be that tilts cages from normality to cruelty in the eyes of the law? Someday, a Pennsylvania judge may decide.

“How could this be a standard practice — to take a hot iron and press it into the skull of a young calf and burn their skin away, burn their horn tissue away, and especially to do that without some form of anesthetic?” Wing says. “To have that be recognized [by the court] is really incredible.”

The decision “sends a clear message that animals used in agriculture are protected by the law,” Lowrey said.

And even though the precedent is limited to Pennsylvania, it’s important in two other ways. First, Pennsylvania is a major agricultural state, ranking fourth in egg production, seventh in dairy, 10th in turkey, and 14th in chicken. All told, over 235 million animals are raised for food in the state each year. Those who advocate for them now have another tool in their legal toolbox.

Sullivan says it also sets a cultural precedent, which can’t be discounted — and it gives animal lawyers across the country a decision to reference when challenging other states’ exemptions.

It could be months or even years until the case is resolved, and anything could happen. The Franklin County district attorney could appeal and the case could be dismissed, washing away this new precedent in animal law. The case could move forward and the district attorney could fail in their case, or it could successfully prosecute Martin Farms, emphasizing that the practice of dehorning without pain mitigation was no longer “normal” in Pennsylvania farming, setting a cultural precedent in a major agricultural state.

But whatever the outcome, the Pennsylvania Superior Court decision illustrates what can happen when standard yet horrific farming practices are put under a microscope: The institutions that govern how America farms and eats might be forced to evolve.