Roused from his afternoon nap to meet with visitors, Eddie gamely obliged, coming up to the large glass windows to gaze at us. After a while, he pointed an index finger at his caregiver, Margaret Rousser, who was standing beside us, touched his forehead, then his mouth, puckered his lips, and made loud smooching sounds. It was a trick Eddie had been taught during his days as a Hollywood performer. He often uses the signs, which more-or-less mean “I love you,” with the keepers at the Oakland Zoo, where the 24-year-old primate and his brother, Bernie, 20, live along with five other chimpanzees.
Once he got started, Eddie kept making the gestures over and over again, sometimes using both his hands, in an effort to engage with Rousser from across the thick glass barrier. There was something sad about his persistence. It seemed desperate rather than cute or funny. It reminded me of a study I had just read about how captive chimpanzees with regular human exposure find it difficult to integrate with others of their kind after their lives as pets and performers are over. It reminded me that Eddie could never be released back into the wild; he no longer has the skills to survive in the forests of Africa. His “humanlike” gestures reinforced all the things about being an ape in the wild that Eddie had lost.
I had gone to the zoo in Oakland, California specifically to meet with its seven resident chimpanzees, all of whom are either entertainment industry retirees or former lab animals released from biomedical research facilities. I was hoping for some sort of a personal encounter with at least one of them. I had a vague notion that if I could look into a chimpanzee’s eyes and connect with him or her on a more intimate level, I might be able to better tell their story, and the larger story of our complicated relationship with our fellow living beings – a relationship that is now more than ever in the spotlight because of the controversial effort by a group of animal rights activists to get chimpanzees recognized as “persons” in the eyes of US law.
But Eddie never held my gaze very long. None of the chimpanzees in the enclosure showed much interest in this particular human gawking from across the barriers that held them in. Their accommodations seem humane enough. The chimpanzees’ keepers clearly take good care of them, using mental “enrichments” like big climbing structures, toys, and “puzzle-feeders” (tasty treats hidden within toys) in an effort to simulate their lives in the wild. They have plenty of access to sunshine and fresh air. There’s no doubt that they are living much better lives than at their previous locations. Yet, as with all living things, Eddie and his companions’ inherent drive to be free persists. A thick web of cracks on one of the massive glass windows of the enclosure bears testament to this. Not too long ago, one of the keepers had overlooked a big rock lying inside the enclosure, and a chimpanzee put it to use. Now there’s a sign stuck on the cracked window:
“Yes, the glass is broken;
it is made of several layers and
is designed so that it will
splinter, not shatter.
No, the chimpanzees get out!”
Three thousand miles away, on the East Coast, attorney Steven M. Wise, too, has lobbed a rock – a legal one – which he hopes will shatter the glass, so to speak, and ensure that chimpanzees like Eddie and Bernie ultimately do manage to get out.
In December 2013, Wise, who is founder and president of the Nonhuman Rights Project (NhRP), and his colleagues filed the first-ever lawsuits in the world demanding four captive chimpanzees in New York State – Tommy, Kiko, Hercules, and Leo – be recognized as “persons.”
Twenty-six year old Tommy is owned by a man who sells and rents reindeer. He lives in a small cement cage in a shed in the back of a used trailer lot in Gloversville, NY. Kiko, also 26, is a former Hollywood chimpanzee who used to be known as “the karate chimp.” He is the property of a couple in Niagara Falls, NY and also lives in a cage. Hercules and Leo, young males who are locked up at Stony Book University, are owned by the New Iberia Research Center in Louisiana. They are being used for locomotion research.
The lawsuits, three in all (Hercules and Leo are joint plaintiffs), are the first in a series of cases the NhRP plans to file throughout the United States on behalf of animal species whose unusually high level of intelligence and self-awareness have been established by a growing body of scientific research. In addition to chimpanzees, the list includes gorillas, bonobos, orangutans, elephants, whales, and dolphins.
The NhRP – which comprises a team of attorneys and legal experts, as well as a Science Working Group led by biopsychologist Lori Marino – aims to change the legal status of these animals from mere “things,” with no legal rights, to “persons” who possess, at the very least, the basic rights to life and liberty. Recognition as legal persons, Wise believes, would protect these animals from being held captive by private citizens, or in zoos, circuses, and theme parks such as SeaWorld and Six Flags. Legal personhood would also protect them from being subject to invasive experiments in laboratories.
“For hundreds and hundreds of years there has been a legal wall that separates all nonhuman animals from human beings,” Wise told me over the phone from Coral Springs, Florida, where the NhRP is headquartered. “On one side are human beings, but also corporations and other nonhuman entities that are recognized as persons, and on the other side are nonhuman animals, who are defined as legal things that can be owned and are essentially invisible to the law. What we are trying to do is change the entire legal conversation and really punch a hole through that wall.”
A legal person, Wise clarifies, is not necessarily a human being. A legal person is an entity of whatever kind – living or nonliving – that the legal system agrees has interests that should be protected. For example, Indian law recognizes the personhood of the Sikh holy book, the Guru Granth Sahib. In 2012 the Whanganui River in New Zealand was recognized as a legal person following years of advocacy by the Maoris. Here in the United States, corporations have been considered legal persons since the early 1800s, when the Supreme Court ruled that corporations have the same rights as natural persons.
Sixty-three-year old Wise has spent nearly three decades developing the legal strategy for his cases. Originally a criminal and personal injury lawyer, he had an epiphany in 1980 after reading Animal Liberation, philosopher Peter Singer’s groundbreaking 1975 treatise that argued that the interests of animals should be considered because of their ability to suffer. “It changed me, almost literally, overnight,” he says. “I hadn’t realized what was going on in biomedical research and factory farms and all the ways animals were being used.”
A year later, Wise joined Attorneys for Animal Rights, which would go on to become Animal Legal Defense Fund – the pioneering nonprofit organization that litigates for stronger enforcement of anti-cruelty laws and more humane treatment of animals. But Wise soon grew frustrated with the existing animal welfare laws which, he says, failed to stem animal abuse. He was losing “a lot of cases” in which he sought to represent suffering animals. “I realized the problem was the fact that nonhuman animals were ‘legal things,’ and that as long as they were legal things in our jurisprudence their interests would never be protected,” Wise says.
In 1996, after years of research into the nature and origins of legal rights and animal law, Wise founded the Center for the Expansion of Human Rights, which in 2007 morphed into the Nonhuman Rights Project. The team at the NhRP built on Wise’s research, putting in another 30,000 hours of work, gathering evidence of animal sentience, affidavits from scientists, and, most critically, deciding to take their petitions to state courts, rather than federal ones. They wanted their cases to be considered under common law, which is the domain of state courts.
“The reason that we filed our suits under the common law is because it is the kind of law that the judges themselves make, based on the evidence presented and on their sense of what is good and right,” Wise says. Common law allows for quite a bit of flexibility, enabling judges to factor in new information, societal trends, and scientific facts while making their judgments, instead of being bound strictly by precedent or by what Congress and the state legislatures establish as law.
Under the common law system, when a judge decides a case, the decision becomes part of the body of law and can be used in later cases involving similar matters. The NhRP’s argument that chimpanzees are entitled to liberty is based on precedents regarding the status of slaves, women, and children, all of whom were once treated as property of men.
State courts are also the ones that hear most habeas corpus cases. That is, cases based on the legal principle that requires that an imprisoned person, or an individual who is unable to personally appear in court (for example, a severely disabled person or infant), be allowed to make a plea in court. Habeas corpus (Latin for “you have the body”) is critical to the NhRP’s legal offensive because it allows a proxy like Wise to plead for his nonhuman clients, who can’t speak for themselves.
Choosing clients also required careful consideration. Chimpanzees topped the list because of the huge volume of research into their cognitive abilities. It made sense to focus on chimpanzees because the NhRP team had managed to line up sanctuaries in the US that were ready to take the animals in. (There are no sanctuary sea pens for dolphins or whales in the US, and the two elephant sanctuaries that the NhRP prefers weren’t capable of taking in more elephants at the time.) The NhRP chose to represent the four New York chimpanzees because the state’s common laws are the most open to habeas corpus lawsuits.
Wise wants to “punch a legal hole” through the wall that separates animals from us.
Wise harbors no illusions that the NhRP will win any of the cases straight away. He works on the premise that it could take decades, probably even past his lifetime, before any court would acknowledge an animal as a person. Indeed, all the petitions, filed within days of each other in three different judicial regions, were rejected by the supreme court judges who heard them. (In New York State, the supreme courts are the lower, or trial, courts.) But Wise found reason for hope in the dismissals.
“We had expected to meet a wall of hostility from the three courts,” he says. “We had expected the judges to deny [the petitions] without even giving us any kind of a hearing. And that only happened one time [in Leo and Hercules’ case] out of the three. The other two judges gave us hearings, asked questions, heard us out.… One of them said, ‘What a great job you did. I just can’t be the first judge to do this, but good luck with your appeal.’”
The NhRP filed appeals in all three cases earlier this year. Tommy’s case, which has been drawing worldwide attention, was heard on October 8 in an appellate court in Albany packed with reporters. The judges allowed Wise and his team to speak long past the allotted 10 minutes. “We were up there for 22 minutes and they were just throwing questions at us,” Wise told me. The court is expected to come out with a ruling in early December. Wise is prepared either way: “It would be arrogant to think that we will win in the first case… but we are hopeful, and we think we have a reasonable chance.”
Kiko’s appeal is scheduled to be heard in a court in Rochester, NY on December 2, and the NhRP will be re-filing Hercules and Leo’s petition – which was dismissed on technical grounds – in a Manhattan court in late December. Also in the works is a petition for a pair of captive elephants. Additionally, the NhRP is working on launching similar legal challenges in England, Switzerland, Spain, and Portugal in collaboration with lawyers and activists in those countries.
For Wise and his team, the lawsuits are just the first salvo of a long-term campaign. “We were prepared to keep litigating,” he says. “One reason we filed [these petitions] is to test the judicial waters. I knew in 1985, when I began thinking about it, that it was going to take almost 30 years before we [would be] in a position where it was even worth it [to file a personhood case].… And it only took 28! We think we have already begun to change the legal conversation, which is also one of our goals.”
At the heart of the issue that Wise and his team are trying to address lies the moral dilemma of how we should treat animals – a question that has vexed humanity for thousands of years. There is little consistency in how we relate to our many fellow creatures. Some we love and treat as family members. Some we revere, while others we fear. Some we enslave as beasts of burden, or for use in invasive lab experiments, or simply for our entertainment. And then, of course, there are the billions of animals we slaughter and eat.
Overwhelmingly, though, the dominant idea – which spans many, though not all, of the globe’s cultures – has been that animals live only in the moment; have little or no sense of their own self; lack morals; don’t suffer the same way as we do; and basically exist for our use. It’s an idea that has helped many of us avoid the prick of conscience that tells us we might have it all wrong. Most of us loathe cruelty to animals, yet support some of the worst forms of abuse because of the food and clothing and entertainment choices we make.
But there has always been a dissident faction of humanity that has challenged this notion and argued that animals have social and emotional lives and deserve to be free. This idea sparked the modern animal welfare and rights movement in the 1970s that inspired Wise and many other animal rights activists. Nearly half a century later, beliefs about animals that were once considered fringe, or even fantasy, are one-by-one being validated by science.
In the past four decades, shelves of studies on animal behavior and cognition by researchers in the fields of ethology, neurobiology, endocrinology, and psychology have provided new insights into the inner lives of creatures great and small. We now know that many animals experience of a range of emotions – joy, love, grief, shame, embarrassment, despair – and have a basic sense of justice and what we call “morality”: all traits long believed to be unique to humans, and that supposedly set us above the rest of the animal kingdom.
We know, for instance, that elephants mourn their dead even many years after their passing, stopping by the place a loved one died and gently caressing the bones of the deceased with their trunks. We have learned that dolphins nurse sick and injured pod members, that baboons can form deep friendships with non-family members and appear to mope for a long time when they are separated from their pals. We have discovered that mice can laugh, and show concern when other mice are feeling pain, and that cows experience eureka moments when they solve a problem like opening a gate to get to food. We have found that even fruit flies display primitive emotion-like behavior, getting frantic when exposed to certain unpleasant stimuli.
We know, too, that empathy crosses species borders. A quick Web search produces a wealth of viral videos to corroborate scientific observations: a leopard caring for an infant baboon, a deformed dolphin adopted by a family of sperm whales, a zoo bear helping a drowning crow, an orphaned baby hippo befriending a 130-year-old tortoise at a shelter. These fascinating scenes seem to prove the theory of some researchers, like Dutch primatologist Frans de Waal, that human ethics are based on evolutionary processes that promote cooperation and the moral high ground. “Sure, [animals] can be mean and nasty too… but on the whole their social lives are based on compassion and cooperative behavior,” says Marc Bekoff, professor of ecology and evolutionary biology at the University of Colorado, Boulder.
“I always say that science is catching up to what many people have already known,” says Bekoff, who is also the co-founder of Ethologists for the Ethical Treatment of Animals (primatologist Jane Goodall is the other founder). He points out that, not unlike humans, animal sentience has a dark side. Elephants, great apes, and many other animals suffer from mood and anxiety disorders when faced with adversity. Captive animals engage in self-mutilation, repetitive rocking, ceaseless pacing, and loss of appetite. And, as revealed in the documentary Blackfish – which tells the tale of the SeaWorld orca Tilikum and the human trainers he killed or injured – sometimes captive animals can simply go mad, with terrible consequences.
The volume of research into animal cognition is conclusive enough that in July 2012 a group of leading scientists signed “The Cambridge Declaration on Consciousness in Human and Nonhuman Animals.” The declaration says that humans are not the only conscious beings and that many other animals, including those that are unlike humans, possess consciousness and, in all likelihood, self-awareness. Using typical scientific jargon the document declares that:
The absence of a neocortex does not appear to preclude an organism from experiencing affective states.… The weight of evidence indicates that humans are not unique in possessing the neurological substrates that generate consciousness. Non-human animals, including all mammals and birds, and many other creatures, including octopuses, also possess these neurological substrates.
Bottom line: We are not quite as special as we’d like to think. Or, as Charles Darwin theorized 150 years ago, the difference between man and other animals is one of degree, and not of kind.
Yet the declaration and the scientific evidence that supports it only underscore the huge disconnect between what we now know about animal sentience and how we treat other creatures. At no other time has our awareness of other animals’ similarity to us been so thorough. And at no other time has our subjugation of the animal kingdom been so complete.
Every year, we kill more than 56 billion farmed animals, with 10 billion slaughtered in the US alone, according to Farm Animal Rights Movement. This number doesn’t include fish and other sea life, where the numbers “harvested” are so large that they are usually measured in tons. The Animal and Plant Health Inspection Service (APHIS) reports that 20 million animals are used in US research laboratories annually. (Not all of this research is health related. A section of the cosmetics industry still tests its products on animals.) This number also doesn’t include the tens of millions of rats and mice used in labs. APHIS doesn’t require their numbers to be reported because the US Animal Welfare Act doesn’t cover rodents.
“The problem is that all that data has not been set down into regulations,” Bekoff says. “For example, we’ve known for more than eight years that mice display empathy, but it’s not been factored into the way in which mice are treated in laboratories in America. So, in a sense, the knowledge is not having any impact on the quality of life for the millions upon millions of animals.… That’s why if animals, maybe just chimpanzees for now, were viewed as persons, that would make it a lot harder for people to abuse them.”
As Wise’s lawsuits wend their way through the New York courts, some countries have already established laws or regulations that recognize, in varying degrees, the sentience and rights of some animals. Switzerland, where animals enjoy greater protections than anywhere in the world, amended its constitution in 1992 to categorize animals as “beings” and not “things.” The Swiss canton of Zurich even has a state-funded public prosecutor for abused pets and farm animals. New Zealand granted basic rights to five great ape species in 1999, forbidding their use in research or teaching. In 2002, Germany amended its constitution to guarantee rights to animals, becoming the first European Union member to do so. The Balearic Islands, a province of Spain, were the first place in the world to grant personhood to great apes in 2007. And in 2008, the Spanish parliament passed a resolution saying great apes should have the right to life and freedom. The EU’s Treaty of Lisbon, which went into effect in 2009, recognizes that animals are “sentient beings,” and requires that all EU policy having to do with the use of animals “pay full regard” to their welfare. Most recently, in 2013, India recognized dolphins as nonhuman persons, banning their captivity for entertainment purposes as a moral violation of their right to life and freedom.
But, needless to say, the idea of nonhuman personhood remains controversial. For many people, it provokes worries about a snowball effect: If personhood becomes a reality for chimpanzees and whales, won’t it just be a matter of time before horses, cows, dogs, cats, and even mice are brought into the fold? Some researchers who work with animals are concerned that animal personhood could lead to the demise of animal research, ranching, and perhaps pet ownership.
“The personhood project tries to give some animals equal standing to humans and I think that creates some practical issues, at least with chimpanzees,” says Stephen Ross, the director of the Lester E. Fisher Center for the Study and Conservation of Apes at the Lincoln Park Zoo in Chicago. Ross has studied chimpanzees for more than two decades and helped draft the National Institutes of Health’s recent decision to phase out all but 50 chimpanzees from its laboratories. He advocates ending invasive research and private ownership of chimpanzees, and housing retired apes in large enclosures in zoos, sanctuaries, and universities. “I think we share a common goal,” he says of Wise’s effort. “We want to make things better for chimpanzees. But we have differing ideas on how to pursue that goal.”
Unlike Wise, Ross believes that a captive chimpanzee population with a “viable gene pool” is necessary since the species is endangered in the wild, though he admits that the reintroduction of a US-based chimpanzee population in Africa “is a real long shot, a last ditch Hail Mary.”
Other researchers cite a more conventional argument: Personhood would directly affect their work, which seeks to benefit humans. The National Association for Biomedical Research, for instance, is opposed to any attempts to grant research animals personhood. It says chimpanzees are crucial for behavioral research and for developing vaccines against human diseases, such as Hepatitis C. Association president Frankie Trull says assigning rights to animals would be “chaotic” for researchers.
Animal personhood advocates counter that although it’s true that research on animals has helped save both human and animal lives in the past, there’s no reason why medical research needs to continue using animals as models. “Look at veterinary schools, for instance. None of them, I think, now use live animals,” says Lori Marino, the NhRP’s science director. “And it’s actually been shown that using models, computer animated models, cell cultures, and humans as well, to study anesthesia, actually creates a better learning experience. We just have to have to have the courage to shift out of this paradigm.” In order to help make that shift happen, Marino founded the Kimmela Center for Animal Advocacy, which she says will work to help students who don’t want to do invasive research on animals pursue careers as scientists. “It still has to be good science, and that’s important. No one’s going to get away with publishing scientific papers unless it’s good science, whether they are advocates or not.”
While there’s a general agreement among animal advocates that the movement for legal personhood is helping bring the discussion about how we treat animals to the forefront, there are some concerns about the NhRP lawsuits. Some worry about the narrow focus on animals that are “humanlike.” Others question whether Wise’s legal strategy is the best way to proceed.
Not unlike humans, animal sentience also has a dark side.
“I think one of the weak sides of the legal approach here is that we are focusing too much on cognitive superstars like chimpanzees,” says Paul Waldau, an anthrozoology professor at Canisius College in Buffalo, NY, who has written several books on animal rights and speciesism. “Clearly they deserve to be recognized [as legal persons], but it’s partly parasitic on how special we think we humans are.” Philosopher Lori Gruen worries that stressing chimpanzees’ anthropomorphic traits “overemphasizes certain capacities as being valuable.” This overemphasis might be to the detriment of other sentient animals whose cognitive capacities may be totally different from our own, though not necessarily less complex. “When we start to think of them in these very sweeping terms, we may overlook differences that are really important in our understanding of these animals,” says Gruen, who coordinates the animal studies program at Wesleyan University. But she agrees that the personhood approach makes “a certain amount of sense” given that the law is a blunt instrument, and “is not meant to be a nuanced, philosophical structure.”
Which, of course, is exactly Wise’s point. He is starting with animals like great apes, elephants, dolphins, and whales precisely because the volume of research into the intelligence of these animals and their similarity to us might make judges less resistant to accepting them as legal persons. “We are litigating in front of judges who are members of our society, who have their opinions, who read books and magazines, and watch television,” he says.
But Wayne Pacelle, president of the Humane Society of the United States (HSUS), one of America’s most effective animal welfare champions, isn’t convinced that the NhRP’s strategy will bring much success. “While I think the personhood notion is evocative and it stretches our conventional notions about animals and our responsibilities toward them, I think the methodical approach that we’ve been taking and gaining incremental ground in the courts is really the best strategy to advance our gains,” he says. During the past decade, HSUS, which has a large, sophisticated legal team, has helped pass more than 1,000 state laws and 25 federal statutes to protect animals, including bans on cockfighting, cruel factory farming practices, and negligent puppy-mill operations. Pacelle says the organization has managed to do that by “building the law” through public awareness campaigns, lobbying for legislative reforms, state ballot initiatives, and by working to defend the laws that are already in place, rather than “relying on a judge to make a declaration.”
“I think it’s very difficult to just have a single courtroom strategy. You really have to have the legislative strategy and the public opinion strategy all working in concert together,” he says. “You know, in football terms, I would say we are more of a ‘ball control offense,’ rather than just throw the ball seven yards down the field.”
photo by Milan Boers via Wikimedia Commons
Pacelle also thinks the term “rights” is fraught with too much philosophical baggage. “The way that we at the Humane Society frame the issue is: It’s really more about humans than it is about animals. It’s how we conduct ourselves. Because we are the ones with all the power in our relationship with animals.” The law, he says, should be about checking human behavior rather than granting animals rights.
David Favre, professor of animal law at Michigan State University and a former colleague of Wise from his Animal Legal Defense Fund days, suggests that a third, intermediate legal strategy – designating animals as “living property” – might find more traction. Favre doesn’t share Wise’s optimism, not in a society in which a large chunk of the economy is based on the exploitation of animals. “There needs to be this intermediate step where we move animals into a different category of property… and call it ‘living property,’” he says. “And in that category, we can then sort of make a transition where we can take into account more and more the nature and interests of the animals and less and less the fact that they are simply owned by somebody.”
Favre notes that these kinds of “incremental changes” already are happening in the area of wills and trusts. Companion animals have long been allowed to be named as beneficiaries – the most notorious example being the late hotel tycoon Leona Helmsley’s $12 million bequest to her Maltese dog, Trouble. Favre believes property law can be transformed so that ownership is redefined as guardianship, allowing animals to receive the legal respect they deserve.
Wise is unfazed by these critiques. “I’m kind of in a hurry to get certain rights for animals, and I can’t see how it can be done without personhood,” he told me. “It’s the keystone for everything. Without it you are invisible in the eyes of law.”
On an Indian summer afternoon in late September, I met with Mara, Maggie, and Lulu on a grassy knoll at the Performing Animals Welfare Sanctuary in San Andreas, a small town on the western slope of the Sierra Nevada, about 130 miles from San Francisco. The elephant habitat in the 2,300-acre sanctuary includes several acres of rolling slopes and valleys with small lakes to soak in, and is one of the places the NhRP plans to send its elephant clients if it manages to win them personhood rights. The three wild-born, middle-aged African elephants, all retired from zoos across the US, like to stick together. Maggie is the charmer of the lot. She steals food from the others and takes up the best spots at the mud holes. Yet Mara and Lulu let her get away with it, treating her more like a young calf than a peer.
Watching the three elephants gently reach out their trunks to greet a human keeper and then stand there under the wide open sky, chewing large clumps of hay, it was hard to imagine that we ever thought of these magnificent creatures as incapable of experiencing pleasure and pain. Then again, anyone who has had a companion animal – who has seen a house cat stretch out languorously in a patch of sunlight on a cold day, or a dog lie on its back begging to be scratched – would say the same about them, too.
Nature, ultimately, is indifferent to our anthropocentric worldview. It draws no bright line separating humans from other life. The pleasure or pain or fear that a mouse or a seal or a tiger feels is probably no less intense to it than the pleasure or pain or fear that you and I feel. We don’t need a law to tell us that. In the same way, just because an animal doesn’t have legal status as a “person” doesn’t mean that we have no moral responsibility toward that animal. Claiming we don’t know what other animals want or need is a cop out. We know, at the very least, that they want to live out their lives in peace and safety. We know that they want to either be treated with dignity, or simply left alone – the same as any other person.
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