Courting Legal Change
While pets enjoy growing social acceptance, the law plays catch-up, and legal eagles and legislators slowly pave the way for legal rights for animals.
Under most state and federal laws, animals primarily are regarded as property and have little or no legal rights of their own. Because of this status, generally there is a presumption—provided no law is violated—in favor of the owner’s control and use over the best interests of the animal. If, for example, someone decides that the family dog or cat becomes “too much trouble,” the animal companion can be legally relinquished to a veterinarian and euthanized.
Anticruelty laws require that animals be provided with basic necessities and be treated humanely, unless it is “necessary” or “justifiable” to deny them food, water or shelter. As long as individuals comply with these minimal standards, they may go unpunished for actions that are not necessarily in the best interest of the animal and that may even cause pain and suffering, such as relinquishing a cat to a pound that sells animals for research or subjecting a dog to cosmetic tail docking and ear cropping.
Yet even when anticruelty statutes do apply, prosecutors are usually overwhelmed with cases and frequently lack the evidence needed to litigate successfully. In practice, this means that only the most egregious cases of animal cruelty and neglect are prosecuted. Moreover, although all states have anticruelty laws, those laws either specifically except or have been interpreted not to apply to the use of animals in socially accepted industries, such as agribusiness or scientific research, or for necessary or justifiable—albeit cruel—practices.
For example, an individual who starved his chicken “for no good reason” could be prosecuted. However, in the poultry industry it is accepted practice to starve hens to induce their feathers to molt. In this forced molting, hens are deprived of any food for up to 14 days as a means of boosting egg production. Although this causes extreme suffering and violates basic anticruelty provisions, forced molting is standard industry wide, and it would be argued that the practice is justifiable and necessary to meet public demand for eggs.
As author and attorney David Wolfson states, “Under the majority of anticruelty statutes, customary farming practices, no matter how cruel and no matter how much suffering occurs, cannot be found to be violations of the criminal law. As a result, the farming community can currently inflict an egregious amount of suffering on animals, who represent more than 95 percent—approximately 8 billion—of the animals killed annually in the United States.”
Use or Abuse?
Two federal laws, the Animal Welfare Act (AWA) and the Humane Slaughter Act, regulate practices involving animal research, animals in exhibition and entertainment, animal breeding and transport and slaughter of most livestock. However, these laws provide only minimal protection and represent a balance between not causing an animal undue pain and suffering and using them for human benefit. The AWA sets standards for the humane housing, handling and transportation by those persons and entities covered. There are also regulations to ensure that the pain and distress of animals is minimized, and that researchers consider alternatives to animal use. Nevertheless, animals can still lawfully be used in experimental procedures without any anesthesia or pain relief, if this is a component of the research conducted.
The Humane Slaughter Act requires that most livestock be stunned and made insensible to pain before being cut, shackled or hoisted. Yet when stunning devices do not work properly, enforcement is difficult. Furthermore, this law applies only to the slaughter of animals—and even then does not include poultry. Food animals, then, are provided little protection under accepted husbandry practice.
Finding a Voice
With their status as property, animals are unable to bring a civil suit for themselves if they are harmed. To bring a case in court, a party must have legal “standing.” The requirement of standing is satisfied if an individual has a right to protection from the wrong done to him and can show that he was wronged by the person he is suing. Although animals cannot speak for themselves in court, a guardian could be appointed to represent the animal and the animal’s best interests. However, animal protection groups do not usually have standing, either.
This is illustrated by the case of Kama the dolphin, which was decided in October 1993 (Citizens to End Animal Suffering and Exploitation, Inc. v. New England Aquarium). Raised in captivity, Kama was transferred in 1986 from Sea World in San Diego to the New England Aquarium in Boston. A year later, Kama was transported from the aquarium to a U.S. Navy base in Hawaii, where he was held for research studies.
In protest, Citizens to End Animal Suffering and Exploitation, the Animal Legal Defense Fund (ALDF), the Progressive Animal Welfare Society and Kama sued the aquarium and the departments of the Navy and Commerce. They argued that certain provisions of the Marine Mammal Protection Act had been violated. However, the court decided that neither Kama nor the plaintiff organizations had standing to bring a suit. The court ruled that the Marine Mammal Protection Act does not authorize suits brought by animals and that according to both Massachusetts and Hawaii law, animals lack legal rights and are considered exclusively the property of their owners.
One for All
Yet a recent case has provided some hope that, in certain situations, individuals may be able to sue for the mistreatment of animals based on injuries to the individuals themselves. In ALDF v. Glickman, which was decided in September 1998, Mark Jurnove, an employee and volunteer for various animal organizations, sued the U.S. Department of Agriculture (USDA) and alleged that the inhumane treatment of animals at the Long Island (NY) Game Farm Park and Zoo injured his senses and prevented him from observing and enjoying the animals.
When Jurnove first visited the park in May 1995, he saw many primates living in inhumane conditions. From his work with animals, Jurnove knew that primates are extremely social and don’t cope well with isolation. At the park, a Japanese snow macaque and a chimpanzee each languished in separate cages far away from other primates. A group of frightened squirrel monkeys were forced to live beside captive adult bears.
Jurnove, who returned to the park several times, made several complaints to the USDA about the animals’ housing conditions. After no changes were instituted, Jurnove filed his suit. The court ruled that he did suffer an injury and that he was disturbed when he repeatedly tried to visit. Since Jurnove planned to continue seeing the animals, and his injury could be addressed with more stringent regulations for the primates’ well-being, the court decided that he had standing to sue. However, it later ruled that the primate’s living conditions were adequate.
Loved One Lost
Another consequence of animals’ status as property is that if one is hurt or killed by someone other than his owner, the damages that can be recovered—if any—are minimal. Even if devastated, an owner can usually only be compensated for the pet’s market value. In general, courts do not recognize or award punitive damages for “emotional distress” or “loss of companionship” in these cases.
Consider, for example, the case of Gluckman v. American Airlines, which was decided in February 1994 by a court in the southern district of New York. Floyd was a golden retriever who wandered into Andrew Gluckman’s campsite in Phoenix, AZ. The two quickly became attached. When it came time for them to return home to New York, American Airlines advised Gluckman that Floyd had to ride in the plane’s cargo hold as excess baggage.
On the day of the flight, the plane returned to the gate because of mechanical problems. As it remained there for more than an hour, the temperature in the unventilated baggage compartment soared to 140 degrees. Gluckman, who was going to miss his next connection, got off the plane and asked for Floyd. He was horrified to find the dog’s crate covered with blood from Floyd’s desperate attempts to escape. The dog had to be euthanized the next morning due to heatstroke and brain damage.
Gluckman sued American Airlines on several claims, including the negligent infliction of emotional distress, the intentional infliction of emotional distress, the loss of companionship and Floyd’s pain and suffering. Gluckman argued that he was severely distraught by witnessing a part of his dog’s physical and mental pain and suffering that led to Floyd’s untimely death. But the court dismissed his claim of negligent infliction of emotional distress by citing an earlier New York case. The court had decided then that the law did not allow the plaintiff to recover for mental suffering and emotional disturbance for the loss of a passenger’s property, which in that case was also a dog.
It ruled that Gluckman could not recover for the intentional infliction of emotional distress, either, because American Airlines did not aim its conduct leading up to Floyd’s death directly at him. Gluckman’s claims for loss of companionship and Floyd’s pain and suffering were also unsuccessful, because the court ruled that no independent claim existed for either situation when applied to an animal.
In April 2000, Congress enacted the Safe Air Travel for Animals Act. Air carriers are now required to report incidents of loss, injury or death of animals on their flights and improve employee training in handling animals humanely. Although this law only makes incremental changes, it gives hope that greater legal protection for animals can gradually be achieved.
Taking a Stand
Currently, a few promising routes exist for chipping away at animals’ property status. The first is to pursue basic rights for animals, such as chimpanzees, based on their striking similarities to humans. Ninety-eight percent of chimps’ genetic makeup is identical to that of humans, and a tremendous amount of scientific research has proven the high levels of self-awareness and cognition they possess. Animal advocates argue that it is unfair to deprive chimps of the right to liberty and bodily integrity, when such humans as infants and the comatose, who possess less self-awareness and cognition, are given these rights. In a positive step, the New Zea-land Parliament recently banned the use of great apes in research, testing and teaching unless it is in the best interest of the species studied.
The second route is to gain recognition that companion animals are more than items of property. One important change that many states have made recognizes the best interest of the animal and provides some hope for further developments: Increasingly, state cruelty laws provide judicial discretion to order the forfeiture of abused animals from owners convicted of cruelty. And in February 2000, Tennessee broke new ground by passing the “T-Bo Act,” legislation which will allow up to $4,000 in “noneconomic damages” for people whose animals are killed or who sustain serious injuries that later lead to their death. [This case was reported in “From Tears to Triumph in Tennessee” in the Winter 2000 issue of Animal Watch.]
Seeds of Change
Many animal advocacy groups are also working to change the term “owner” to “guardian.” In July 2000, the Boulder City (CO) Council followed the lead of San Francisco and Marin County, CA, by changing the city’s municipal code to refer to people as “guardians” of their companion animals instead of as their “owners.” While this does not change the legal status of animals, it is a step in changing society’s views. “By disavowing the concept and accompanying language of animal ‘ownership,’ we can reconstruct the social and legal relationship between humans and animals,” states Elliot Katz, D.V.M., the president of Mill Valley, CA-based In Defense of Animals. “As our societal perceptions of animals change, the legislatures and courts will begin to recognize our obligation to protect animals, not as someone’s personal property, but as conscious beings with feelings and interests of their own.”
Based in Los Angeles, Melissa Bjorkenstam is a second-year law student who volunteers with the UCLA Animal Welfare Association.
|LEGAL RIGHTS FOR ANIMALSThere are three ways for animals to obtain legal rights. First and foremost, any broad protections or rights, such as granting standing to animals, will probably have to come through legislation. Passing legislation is often an arduous process and entails a fair amount of compromise and negotiation. Big businesses that depend on large-scale animal use—such as the food, fur and research industries—lobby to ensure as little regulation as possible. Since these industries are multimillion- or even billion-dollar industries with significant political clout, legislation granting rights to animals requires a lot of public support. One successful piece of legislation signed into law in November 2000, however, bans the sale of cat and dog fur products in the United States.
Secondly, building precedent that is favorable to our fellow creatures can occur step-by-step through individual cases, the decisions of which create common law. Individual judges are unlikely to make any sweeping changes with a single case. However, once a few cases have given greater protection to animals, it might be easier to bring legislation that codifies those decisions into statutory law.
A third way to create legal change is to introduce a ballot initiative or referendum. This method approaches the voting public directly and bypasses the legislature, which may be subject to pressures from various industries. In 1998, for example, California voters enacted through an initiative a ban on the transportation of animals associated with and the sale of horsemeat for human consumption. However, this venue is also a costly way of changing the law.
© ASPCA 2001
ASPCA Animal Watch – Spring 2001
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