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A note for our readers: the views reflected by the authors do not reflect the views of ASPA.
By Joseph G. Jarret
“Dogs are such agreeable friends—they ask no questions—they pass no criticisms.”
George Eliot, Scenes of Clerical Life, 1857
Dogs Have Their Day
Recently, the Supreme Court of New York entered a landmark ruling in the case of The People v. Tohom, relative to whether New York courts should permit the presence of a therapeutic “comfort dog” in a trial setting when the court determines that the animal may provide emotional support for a testifying crime victim.
I have served more than one public entity that has grappled with the issue of what type of dogs should be permitted in public buildings or public transportation. For instance, I once worked as an attorney/risk manager for a public entity where the county manager ordered the human resources director to post a sign in the county administration building that read, “No dogs allowed in county buildings or on county buses except in the case of seeing-eye dogs!” I had to remind the manager that federal law permits certain dogs, beyond those assisting the visually impaired, full access to public buildings, facilities and transportation.
A Dog by Any Other Name
It is important to note that, federal law does draw a distinction between service dogs and therapy dogs. While service dogs are covered under the Americans with Disabilities Act of 1990 (ADA), therapy dogs are not. A therapy dog is commonly defined as a dog trained to provide comfort, affection and entertainment to people in nursing homes, hospitals, prisons, schools and retirement homes. According to the ADA, dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under federal law. Service dogs, on the other hand, are covered under the ADA and are defined as “dogs that are individually trained to do work or perform tasks for people with disabilities.” Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, alerting and protecting a person who is having a seizure, reminding a person with mental illness to take prescribed medications, calming a person with post traumatic stress disorder (PTSD) during an anxiety attack or performing other duties. Service animals are working animals, not pets. Consequently, the work or task a dog has been trained to provide must be directly related to the person’s disability. (42 U.S.C. §§ 12101-12213).
Under the ADA, state and local governments, businesses and nonprofit organizations that serve the general public must allow service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go. Further, when it is not obvious what service an animal provides, only limited inquiries are legally permissible. Generally, an entity’s staff may ask two questions: (1) is the dog a service animal required because of a disability? and (2) what work or task has the dog been trained to perform?
The Benefits of Dogs in the Courtroom
Moving beyond public buildings and transportation, we find that there is a growing trend to permit therapy dogs in the courtroom to assist victims of crimes. Speaking on this phenomenon, Professor Marianne Dellinger in a 2009 Animal Law article titled “Using Dogs for Emotional Support of Testifying Victims of Crime,” noted that dogs have a natural ability to calm humans and help people by reducing blood pressure, stress and anxiety, improving feelings of self-worth and decreasing loneliness.
Although many states have been slow to pass legislation that specifically addresses the presence of dogs in the courtroom that does not mean that they haven’t nosed their way in. In 2012, Dickson County, Tennessee initiated a program that allows dogs inside courtrooms in an effort to help young children called to testify. The dog, Pavlov, is a retriever that was trained by the group, Courthouse Dogs Foundation (Foundation). Several other Tennessee counties have since followed suit. When introducing service or assistance dogs into the courtroom, the Foundation suggests that before a dog is permitted to accompany a witness in the courtroom they should have the following characteristics:
According to the National District Attorneys Association, each year increasing numbers of child advocacy centers and prosecutors across the United States are introducing dogs into the courtroom to assist child witnesses when called upon to testify about traumatic events. As such, it behooves all players in the public sector arena to keep abreast of this emerging body of law and public policy.
Author: Joseph G. Jarret is a public administrator, attorney and mediator who lectures on behalf of the Master of Public Policy and Administration program in the Department of Political Science at the University of Tennessee, Knoxville. He is the 2013 president of the E. Tennessee Chapter of ASPA.