When Dog Owners Are Charged With a Crime - Part 3

There are certain defenses available to a dog owner who is criminally prosecuted for owning a dangerous or potentially dangerous dog. One defense is provocation of the animal, which is the same defense available under the civil "Dog Bite Statute" discussed in Chapter 2. There is one difference however. To invoke the provocation defense, the dog must have been on the owner's property and the dog must be securely confined on the property and unable to escape. The dog's enclosure must be secure enough to prevent children or other trespassers from coming into contact with the animal. The owner must also erect appropriate signs on the property that warn people of a dangerous dog and not to trespass. If any one of these conditions is unmet, then the provocation defense will fail. Similarly, if the dog owner violates the statute while the dangerous or potentially dangerous dog is in a public place, the provocation defense is not available.

A dog owner also has a defense if it can be shown that the victim was a trespasser on the owner's property where the dog attack occurred. Of course, the owner must also show that the fencing around the property was secure and that appropriate signs warning about the dog were erected on the property. Thus, a trespasser who is seriously injured while on property that does not adequately secure or enclose a dog may still subject the dog owner to criminal liability.

Although the state prosecutor has the burden of proving beyond a reasonable doubt that the dog owner committed a crime by owning a dangerous or potentially dangerous dog, the burden of proof regarding the available defenses is upon the dog owner. This means the dog owner must prove by a preponderance of the evidence (i.e., that the facts supporting the defense are more likely true than not), that the dog was provoked, his property was properly fenced off, that appropriate warning signs were erected, and that the person attacked was actually a trespasser.

Interestingly, the Washington state legislature has specifically stated that the dog's breed cannot be used by the prosecutor to convict the owner of owning a dangerous dog. This means the prosecutor cannot argue in court that the owner should have known that his dog was dangerous or potentially dangerous based on the fact that the dog was a certain breed, like a pit bull or Rottweiler or some other breed with a reputation for being unusually aggressive (whether that reputation is deserved or not).

Despite the possible criminal repercussions that exist, a person may still own a dangerous dog. But only if the owner registers the dog with the proper animal control authority, properly confines the dog on the owner's property (by fence or other means), conspicuously displays warning signs about the dog (that are sufficient to warn children), and carries liability insurance (e.g., homeowner's policy) in an amount of no less than $250,000.

In the end, I have to question someone's decision to own a dangerous or potentially dangerous dog. Even if the dog is used as a means of protection, there are far better methods of self-defense that won't risk the health and lives of other people, especially children. As stated previously, the criminal prosecution of dog owners is very rare. Even if there is sufficient evidence that justifies a criminal prosecution, I have found that many times the government will only decide to prosecute in cases that are particularly egregious or noteworthy (i.e., those cases involving death or grievous bodily injury). When the government declines to prosecute, even if the facts would support a criminal conviction, the victim's only other recourse is to seek monetary compensation under Washington's civil "Dog Bite Statue" and/or the state's common law.

My advice to dog owners is this: don't risk keeping or harboring a dog that you know or should know is dangerous or potentially dangerous. If your dog acts aggressively or in a menacing way towards other people, or has bitten someone before, that dog should usually be put down. When it comes to protecting the life of a dog versus a human, it is best to err on the side of protecting human life.