Green criminologist and Senior Lecturer in Criminology at Middlesex University Dr Angus Nurse discusses the recent US court case concerning Tommy the chimp, a captive animal who campaigners argue should have the right to bodily liberty.
While generally Western societies have accepted a need for improved standards of animal welfare and have criminalised many forms of animal cruelty, the law has yet to give animals actual legal rights in the form of legal personhood.
The UK’s Animal Welfare Act 2006 arguably comes close by enshrining a duty to provide animal welfare in the law. The Act requires companion animal owners to consider the needs of their individual animal rather than adopting a standard approach to companion animals. In doing so it provides for a new form of owner-companion relationship.
It requires owners and those responsible for companion animals to know how their companions should behave when healthy so that they tailor their homes to suit the needs of any companion where possible. Indeed government guidance makes clear the responsibilities to provide for a suitable environment, suitable diet, and the ability to exhibit normal behaviour patterns and to be protected from pain suffering and disease.
In passing the Animal Welfare Act 2006 the UK has recognised that animals are sentient beings, not merely commodities, and has confirmed its commitment to the highest possible standards of animal welfare. Yet despite the UK having some of the strongest animal welfare legislation in the world, it has yet to provide animals with actual legal personhood. However, efforts to do this are currently taking place in the US, shining a spotlight on the complexity of Western animal protection laws which offer high levels of animal protection but which generally still treat animals as property.
Tommy the chimp
The case of Non-Human Rights Project Inc. vs Lavery Appellate Court Hearing 518336 has recently been heard by the New York Supreme Court. The case is brought by the Nonhuman Rights Project (NhRP) demanding that the court issue a writ of habeas corpus to grant Tommy the chimp the right to bodily liberty.
Tommy is a chimpanzee who has been kept caged in a warehouse in Johnstown, New York. The NhRP argues that Tommy is being unlawfully imprisoned and therefore being deprived of his fundamental legal right to bodily liberty. Arguing for legal rights for Tommy is essentially about arguing whether Tommy can be legally classed as a ‘person’. Importantly this is not necessarily the same as arguing that Tommy as a sentient being is exactly the same as a human, but is about whether Tommy as a sentient being should have the same rights as other legal persons.
The presentation of this case in New York relates to the New York Court of Appeals having previously concluded that ‘legal personhood’ is not synonymous with being a human being. However, legal personhood means that the entity counts in civil law and can have their interests protected; there are examples of other legal persons that are not human beings including a river, a religious holy book and a mosque.
The ‘Tommy’ case is one of three cases filed by the NhRP in December 2013 as the first ever lawsuits filed on behalf of captive chimpanzees. The suits, supported by 100 pages of affidavits filed by scientists demonstrating that chimpanzees are self-aware and autonomous, argue that chimpanzees have sufficient understanding of their situation and an awareness of their needs to know that they don’t want to be caged for life. Given their sentience and understanding they are entitled to be recognized as “legal persons” with certain fundamental legal rights.
Arguably the situation is similar to that of other groups such as slaves who were previously denied rights on the grounds that they were considered to be property. The lawsuits ask the judges to grant the chimpanzees the right to bodily liberty and order that they be moved to a North American Primate Sanctuary Alliance sanctuary member. Alternatively they should go to Save the Chimps, the world’s largest chimpanzee sanctuary located in Fort Pierce, Florida, where they can live out their days with others of their kind in an environment as close to the wild as is possible in North America.
Steven Wise acting for the NhRP commented in his 8 October 2014 closing arguments on Tommy’s case that: “The uncontroverted facts demonstrate that chimpanzees possess the autonomy and self-determination that are supreme common law values that the writ of habeas corpus was constructed to protect. Both common law liberty and equality entitle him to common law habeas corpus personhood.
While the intent in bringing the case was for the New York judges to decide that Tommy is a legal person, various other outcomes were possible. Lawyer Steven Wise recognised that, as this was an appeal, the judges could decide that Tommy could be a person and refer this issue back to a trial court to decide. The Court could also decide that Tommy is not a person and never could be, but this opens the door both for a further appeal and for other avenues to be explored. For example, a case could be brought under state law which allows courts to release a privately owned animal if its owner does not maintain conditions required by law. This is similar to provisions in UK law where animals can be seized from persons guilty of animal welfare offences, who can also be banned from owning animals in the future. Bodies like the RSPCA who are engaged in animal welfare prosecutions regularly ask for such banning orders.
Historically animal cruelty in both the UK and US has been dealt with by the passing of anti-cruelty legislation rather than by applying existing legal arguments and principles to animals. As the New York state judges have observed, effective animal protection can often be achieved without giving them the same rights as people. However as the lawsuits served by NhRP quite reasonably ask, why should there be a need for new legislation when existing legal principles can be applied to property as has been the case in the past?
Sandra the orangutan
On 5 December 2014, the New York Court ruled that Tommy is not a person and never could be, while later in December 2014 it was widely reported in the press that an Argentine Court had ruled unanimously that Sandra, an organutan, is a ‘non-human person’ with a legal right to freedom. Closer reading of the Argentine judgment now suggests that the court did not order Sandra’s release but confirms that the Court gave an opinion that the law could or should be read ‘dynamically’ so as to give the orangutan non-human legal personhood.
Early in January 2015 a second New York Appeal Court ruled that habeas corpus was not available in the case of Kiko another non-human primate whose case was being pursued by NhRP but gave different reasons than were given in Tommy’s case, which related to the specifics of Kiko’s case. At time of writing NhRP has lodged an appeal against the judgment in Tommy’s case and these cases demonstrate that a universal judicial view on legal personhood for animals is still some way off.