Publication Date

11-2025

Abstract

In recent years, several animal rights activists faced criminal charges for rescuing animals from factory farms. The standard legal approach in these cases has been relying on the necessity defense, which has a long history in cases of civil disobedience and ideologically driven crime. Animal law scholarship on this topic tends to focus on explaining why the defense applies to open rescue. However, as recent trials have demonstrated, actual courtrooms in rural counties tend to be hostile to the necessity defense, and judges can and do rely on Supreme Court precedent to keep it out of the courtroom.

This Article's point of departure is that the defendants in these cases have two goals: acquittal and consciousness-raising. Rather than contradicting each other, I argue that both goals can still be served in courtrooms that are hostile to affirmative defenses through seemingly politics-neutral arguments relying on the elements of the offense. I provide several examples of possible arguments about elements of common offenses related to open rescue: trespass, burglary, and larceny. In each of these offenses, I highlight possible deficiencies in the actus reus and in the mens rea and ways to get an evidentiary ''bang" for the activists' ''buck" in terms of admitting factory farm footage into evidence. I illustrate the potential of these strategies with an example: the acquittal of Wayne Hsiung and Paul Picklesimer in the Smithfield trial in Washington County, Utah, which relied on an actus reus argument for burglary and agricultural theft. In the case of these defendants, we have insights from some of the jurors about the merits and usefulness of "Plan-B" legal arguments. The Smithfield trial suggests that Plan-B defense strategies may surpass the use of the necessity defense and deliver not only legal but also political victories for activist defendants.

Document Type

Article

Publication Title

Vanderbilt Law Review

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