Five years ago, Wise's Nonhuman Rights Project (NhRP) — a legal advocacy group for animals — filed a petition calling for, in part, Tommy's "immediate release from illegal detention." The petition further said: "Respondents are detaining Tommy in solitary confinement in a small, dank, cement cage in a cavernous dark shed ... ."
Based on the Animal Welfare Act (AWA), Tommy's owners appear to be in full compliance with federal law, which says that chimps, under certain conditions, can be housed alone and in cages. Nevertheless, Tommy's "confinement constitutes a profound harm that demands remedy by the courts," Gary Comstock, a professor of philosophy at North Carolina State University, told Seeker.
In February, Comstock and 16 other philosophers co-authored an amicus brief in support of an NhRP motion seeking habeas corpus relief for Tommy and another chimpanzee named Kiko. The New York State Court of Appeals is weighing whether or not to allow the suit to proceed. NhRP argues that chimpanzees like Tommy and Kiko should be recognized as a "person," since under current US law, one is either a person or a thing. Wise, president of the NhRP, explained that things "lack the capacity for any legal rights. Welfare protections do not alter this fact."
Brief co-author David Peña-Guzmán of California State University, San Francisco, told Seeker: "I think most people resist the notion of personhood mainly because they are not aware that the only alternative to it is thinghood. If you ask most people whether animals are analogous to things such as chairs and desks, most will emphatically say 'no.' If you then ask them whether animals can have rights, many will say 'yes.' These two answers add up to personhood."
According to Wise and the philosophers, the fight over Tommy highlights a persistent yet urgent problem concerning US law that treats nonhuman animals as things despite growing scientific evidence and societal acceptance that they are intelligent, sensitive, and social beings that can even at times communicate their feelings to humans.
Brief co-author Kristin Andrews of York University, for example, told Seeker that another chimp named Bruno learned sign language at the University of Oklahoma during research on communication. When funding for the project ran out, he was sent to a biomedical facility. Researcher Mark Bodamer of the university project later visited the chimp. Andrews said, "Bruno, who hadn't signed while at the biomedical facility, started signing when he saw Mark. What did he say? Key out!"
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| Tommy, a chimpanzee, is seen in Unlocking the Cage, a film by Chris Hegedus and D.A. Pennebaker. |
"On the 'thing' side of the divide, at various times in history, slaves, women, and children have been regarded as things and not persons," Wise said. "It took a mighty social struggle to move each of these beings into the class of rights-bearers — persons."
He added, "A person need not have the full suite of human rights, either. Corporations are persons but cannot marry, for example. Personhood is a tremendously flexible concept in the law. No third option is needed."
The European Union, however, has a third option in place.
Brief co-author Andrew Fenton of Dalhousie University told Seeker that the Treaty on the Functioning of the European Union, otherwise known as the Lisbon Treaty, recognizes nonhuman animals as "sentient beings,” but the treaty does not offer nonhuman primates full protections. For example, a stipulation allows that if there were "an unexpected outbreak of a life-threatening or debilitating clinical condition in human beings," nonhuman great apes could be used in research.
Peña-Guzmán said that if a third term like "sentient beings" could give chimpanzees the same protections as the term "person," then it is not even necessary to have this other wording in the first place.
If the third term does not afford the same protections, then "it is not as good," he said.
He continued, "What matters to us, ultimately, is that chimpanzees be given the right to bodily liberty, independently of what term is used. In the US at this moment in history, the only category that does this is 'person.'"
Andrews and Wise told Seeker that a formal definition of a person,"in the US legal context, can be traced back to John W. Salmond's Jurisprudence, first published in 1907 and cited by the most widely used legal dictionary in the US, Black's Law Dictionary. Salmond mentions that persons are subjects of "legal rights or duties." A person is therefore a rights bearer, and one either bears rights or does not.
Implementing that seemingly simple concept turns out to be far more complicated than imagined.
Consider that an Opinion of the Court rejecting NhRP's claims about chimpanzees concluded: [U]nlike human beings, chimpanzees cannot bear any legal duties, submit to societal responsibilities, or be held legally accountable for their actions. In our view, it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights — such as the fundamental right to liberty protected by the writ of habeas corpus — that have been afforded to human beings."
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| Lawyer Steven Wise is seen in court in Unlocking the Cage, a film by Chris Hegedus and D.A. Pennebaker. |
Johnson said that in 1874, the American Society for the Prevention of Cruelty to Animals even filed a writ of habeas corpus on behalf of an abused child because the law at the time did not recognize children as persons, and there were no laws then against child abuse.
If the court's criteria for personhood were to hold on every level, some of the most vulnerable people — infants, the mentally ill, people with dementia — would be considered things, not persons.
NhRP brief co-author Tyler John of Rutgers University told Seeker that the New York court's legal argument "excludes basic legal protections for some humans who morally deserve these basic legal protections. It therefore must be mistaken."
"But," he added, "we should also note that on a proper understanding of civic responsibilities, many nonhuman animals can, in fact, bear civic responsibilities. None of us were taught to obey the law from an early age through abstract philosophical reflection; we learned it through modeling of good behavior and through the good things that happen when we obey rules. Chimpanzees and other social animals can learn to obey many civic duties in the same way."
Even if there are some legal duties that certain human and nonhuman animals cannot have, this does not by itself mean that we need new legal categories for these individuals, John continued.
He added, "Children and chimpanzees deserve the legal protection of their basic rights to liberty and bodily integrity regardless of whether they can bear legal duties, and under the law this amounts to personhood."
John further pointed out that if a very young child were to refuse a lifesaving medical procedure, guardians could override the decision. No one, on the other hand, may override a human adult's clear-headed decision to refuse such a procedure.
"But this does not mean that we need to classify young children as falling between persons and things," he said.
In a recent op-ed in The New York Times, NhRP brief co-author Jeff Sebo suggests that "a more inclusive view of personhood" might take into account the following features: conscious experience, emotionality, a sense of self or bonds of care, or interdependence.
He argues that Tommy and Kiko, "are conscious, emotional, intelligent, social beings whose lives are deeply entangled with our own, their current state of isolation notwithstanding. As a result, they count as persons on any view inclusive enough to meet contemporary standards of human rights."
If Sebo's criteria for personhood were upheld, though, chimpanzees would not be the only nonhuman animals that could pass this type of test. Common pets, such as dogs and cats, clearly would, too. It is easy for us to relate to these complex and social mammals that are somewhat like ourselves.
But biases likely affect the values we place on less similar animals like fish — and insects.
"I want to allow for the possibility that insects can have rights," Sebo, director of the animals studies master's degree program at New York University, told Seeker. "If insects are conscious, and if conscious beings can have rights, then insects can have rights, even if they have different rights than humans."
"Of course," he added, "others might disagree with me about this. Either way, we can start by accepting that Kiko and Tommy can have rights and then we can ask the other, more difficult questions that follow."
The NhRP argues that autonomy is a sufficient, but not a necessary, requirement for personhood. This could lead down a slippery slope over how we judge the inherent worth of other species and even other aspects of nature. Brief co-author Robert Jones of California State University, Chico, told Seeker that many ecosystem components, such as plants, clearly play essential roles in the web of life, "but lack so-called intrinsic value."
"However," he added, "those beings who possess subjective experiences that have an attractive or aversive quality — such as pain and suffering, pleasure and joy — have an interest in not having those experiences in the way that a boulder or blade of grass does not."
Wise said that as the common law continues to evolve, there may be other criteria beyond autonomy on which to base rights for nonhuman animals. For now, his organization's focus is on seeking legal rights and personhood for not only chimpanzees, but also elephants and orcas.
NhRP has already begun litigating on behalf of elephants Minnie, Beulah, and Karen at the Commerford Zoo in Goshen, Conn. The US Department of Agriculture has cited the zoo over 50 times for failing to adhere to minimum standards required under the Animal Welfare Act, according to NhRP, which reports that the zoo continues to use bullhooks — elephant-training tools with a metal hook at the end — on the pachyderms.
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| Minnie the elephant performing at Commerford Zoo, Goshen, Conn. |
The New Iberia Research Center (NIRC), where the chimps were born in 2006, had previously leased Hercules and Leo to Stony Brook University for a study on bipedal walking. After the litigation, Hercules and Leo were returned to NIRC in 2015.
According to the journal Science, on March 21 of this year, NIRC moved the primates to the Project Chimps sanctuary in Georgia. Wise has "serious concerns" about Project Chimps. For example, he said that "there is only one outdoor area for the chimps at the site." He told Science, though, “I’m glad to hear Hercules and Leo are getting out of New Iberia."
Wise hopes that the two males can be moved to another sanctuary, Save the Chimps, which is in Florida and has offered to house the primates at no extra cost to NIRC. Like the three elephants, it remains unknown for now what will ultimately happen to these two chimps.
Jaffe's issuance of the writ of habeas corpus, however, marks a legal milestone that was followed in 2016 by a similar judgment in Argentina granting "nonhuman person" status to a chimp named Cecilia. The chimp was ordered removed from a zoo and transferred to a sanctuary.
Approximately 2,000 chimpanzees are kept in captivity in the US alone. According to the World Animal Foundation, about 300 are in zoos, and the remaining 1,700 were bred for medical research. The situation seems monumental when other animals are factored in. There are 100 million animals held captive for entertainment and research purposes, based on Humane Society International estimates.
A recent survey conducted by the Sentience Institute, which was replicated by Oklahoma State University, found that nearly 50 percent of Americans desire a ban on slaughterhouses. A recent poll commissioned by NhRP found that almost half of all participants "agreed with a statement saying that animals deserve the same rights as humans," and "about half said they would support legislation to recognize legal rights for some animals."
The legalese of personhood is hard for many people to grasp, though, and the studies indicate that the public is divided nearly 50-50 in their views of animal rights.
Richard Cupp, a professor at Pepperdine School of Law, told Seeker that he supports legal efforts to improve the welfare of animals, but said the term “animal rights” is vague.
“My experience is that many people who initially say they support 'animal rights' actually support imposing appropriate legal responsibilities on humans to prohibit mistreatment of animals, rather than supporting legal personhood and accompanying legal rights for animals," he said.
The arguments against granting animals personhood rights, he said, range from chimps lacking "a sufficient level of moral agency to be justly held legally accountable" to "the potential societal chaos" that would ensue should legal personhood be extended to nonhuman animals.
"Rejecting nonhuman animal, legal personhood does not imply being satisfied with the status quo regarding how we treat animals," Cupp said. "Society has made important advances in animal welfare in recent years, and we are probably closer to the beginning of this significant period of animal welfare, legal evolution than we are to its future high point. As a society we need to continue our evolution toward increased protection of animals, but they should not be made legal persons."
He acknowledges that lawmakers and others need to do a better job of being explicit in statutes, ordinances, and court decisions that sentient animals are different from inanimate property. "Sentience" itself is a loaded topic, but Cupp uses the word to describe animals capable of suffering.
His views of the issue will soon be published in the University of Cincinnati Law Review. A draft of the article is available online. As Cupp admits in the article, however, not granting chimpanzees and other animals personhood does mean that they are "still property" in the eyes of the law.
If the New York court eventually does issue an "order to show cause" pursuant to the writ of habeas corpus, a hearing would take place, as it did in Hercules and Leo's case, which would shift the burden of proof from the NhRP to those currently holding the chimps captive. Then, if the owners cannot justify the legality of their detainment of the chimps, the court could rule that Kiko and Tommy are legal persons with the right to bodily liberty and offer "relief," which might mean transferring the chimps to a sanctuary.
If the owners cannot prove the legality of their detainment of the chimps, the court could then offer "relief," which might mean transferring the chimps to a sanctuary. Such a ruling would likely serve as precedent for other parties to seek habeas corpus relief for other chimpanzees in New York and could lead to similar rulings in other states.
A potential complication in the New York case has to do with the current location and status of Tommy. In 2016, various media outlets including The Dodo reported that Tommy was donated to the DeYoung Family Zoo in Wallace, Michigan, in September 2015.
Brittany Peet, director of captive animal law enforcement for PETA Foundation, told Seeker that New York State Department of Agriculture and Markets records provide evidence that the donation occurred. Representatives for the zoo, which is seasonal and reopens this year on May 1, have claimed to be unfamiliar with any chimpanzee named Tommy and have not confirmed his existence.
PETA filed a complaint against the zoo in 2016, which suggests that, even though the plaintiffs deny having a chimp named Tommy, they do "have a chimpanzee" that is then referred to as "Chimpanzee number 2" as well as a chimp called "Louie." PETA even issued a petition, urging that the zoo retire their chimpanzees to a reputable sanctuary.
The number-2 terminology is a stark reminder of what can happen when animals become nameless property. Death records often follow suit, which could mean that if Tommy did die, his name — and therefore the loss of him as a unique individual — might never be known.
Wise, however, said, "We have a strong basis for believing Tommy is alive and still in New York."
If that is the case, his condition remains unknown.
As for Kiko, NhRP believes that he is now in a cage in a cement storefront attached to a home in a residential area of Niagra Falls, New York. Whatever one thinks of this unusual arrangement, no welfare law appears to have been violated with the confinement of Kiko and Tommy.
"But this does not mean that their conditions of life are morally acceptable as they currently stand," Peña-Guzmán said.
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