Melissa Bjorkenstam
change of judicial law
As pets enjoy increasing social acceptance, the law is catching up and authorities and legislators are slowly paving the way for legal rights for animals.
photo credit: thinkstock
Under most state and federal laws, animals are considered primarily property and have few or no rights of their own. This status generally provides a presumption, unless a law is violated, in favor of the owner's control and use of the animal. For example, if someone decides that the family dog or cat is "causing too much trouble," the animal can legally be turned over to a veterinarian and euthanized.
Anti-torture laws require animals to have their basic needs met and treated humanely unless it is "necessary" or "justified" to deny them food, water or shelter. As long as people meet these minimum standards, they can get away with acts that are not necessarily in the animal's best interest and may even cause pain and suffering, such as subjecting a dog to a cosmetic tail and cropping ears.
But even where cruelty laws exist, prosecutors are often overwhelmed with cases and often lack the necessary evidence to successfully prosecute. In practice, this means that only the worst cases of animal cruelty and neglect are prosecuted. While all states have cruelty laws, these laws do not specifically apply or have been interpreted to not apply to the use of animals in socially acceptable industries, such as agribusiness or scientific research, or for necessary or justifiable yet cruel uses. : Practices .
For example, a person who starved his chicken "for no good reason" could be prosecuted. However, in the poultry industry, it is accepted practice to starve chickens to induce molting. During this forced molt, hens are deprived of all feed for up to 14 days to increase egg production. While this causes extreme suffering and violates basic rules against cruelty, forced molting is an industry standard and it could be argued that this practice is both justified and necessary to meet the public demand for eggs.
As author and attorney David Wolfson notes, “Under most cruelty laws, agricultural practices, no matter how cruel or how much suffering, cannot be considered criminal violations. As a result, the farming community today is able to cause tremendous suffering to the animals that represent more than 95%, approximately 8 billion, of the animals killed annually in the United States.”
Use or abuse?
Two federal statutes, the Animal Welfare Act (AWA) and the Humane Slaughter Act, regulate practices related to animal testing, showing and entertaining animals, keeping and transporting animals, and slaughtering most livestock. However, these laws provide minimal protection and strike a balance between preventing animals from causing undue pain and suffering and using them for the benefit of humans. The AWA sets standards for decent housing, handling, and transportation by individuals and organizations. There are also regulations in place to ensure that pain and suffering to animals is minimized and that researchers consider alternatives to using animals. However, animals can legitimately be used in experimental procedures without anesthesia or analgesics if this is part of the research being carried out.
The Humane Slaughter Act requires that most farm animals be stunned and restrained before being cut, tethered or hoisted. But when shock machines don't work properly, application is difficult. Furthermore, this law only applies to the slaughter of animals, and even then, it does not apply to poultry. Thus, farm animals receive little protection under recognized husbandry practices.
find a voice
With their property status, animals cannot bring a civil claim on their own if they are harmed. To bring a case to court, the party must be legally "qualified". The requirement of legal standing is fulfilled when a person is entitled to protection against harm caused to him and can prove that he has been harmed by the person suing him. Although animals cannot speak for themselves in court, a guardian can be appointed to represent the animal and its best interests. But then again, animal protection groups often lack reputations.
This is illustrated in the Kama dolphin case decided in October 1993 (Citizens to End Animal Suffering and Exploitation, Inc. v. New England Aquarium). Raised in captivity, Kama was transferred from Sea World in San Diego to the New England Aquarium in Boston in 1986. A year later, Kama was transported from the aquarium to a US Navy base in Hawaii, where it remained for research studies.
In protest, Citizens to End Animal Suffering and Exploitation, Animal Legal Defense Fund (ALDF), Progressive Animal Welfare Society and Kama sued the Aquarium and the Departments of Navy and Commerce. They claimed that certain provisions of the Marine Mammal Protection Act were violated. However, the court ruled that neither Kama nor the applicant organizations had the right to sue. The court ruled that the Marine Mammal Protection Act does not allow for lawsuits by animals and that, under Massachusetts and Hawaiian law, animals have no legal rights and are the sole property of their owners.
One for all
However, a recent case has raised hopes that, in certain situations, people can sue them for animal abuse because they themselves have been injured. In ALDF v. Glickman decided in September 1998, Mark Jurnove, an employee and volunteer for several animal organizations, sued the United States Department of Agriculture (USDA), alleging inhumane treatment of animals at Game Farm Park in Long Island (NY). and Zoo injured his senses and prevented him from observing and appreciating the animals.
When Jurnove first visited the park in May 1995, he saw many primates living in subhuman conditions. From his work with animals, Jurnove knew that primates are extremely social and do not tolerate isolation well. In the park, a Japanese snow monkey and a chimpanzee languished in separate cages, away from other primates. A group of frightened squirrel monkeys were forced to live alongside adult bears in captivity.
Jurnove, who has returned to the park several times, has filed several complaints with the USDA about the animals' housing conditions. After no changes were made, Jurnove filed suit. The court ruled that he had suffered an injury and that the repeated attempts to visit him were upsetting him. Since Jurnove planned to continue seeing the animals and since her rape could be handled under stricter primate-friendly regulations, the court ruled that she had standing to sue. However, he later determined that the primate's living conditions were adequate.
I lost loved one
Another consequence of the property status of animals is that if someone is injured or killed by someone other than their owner, the damage that can be claimed is minimal, if any. Even devastated, the owner can usually only be compensated for the animal's market value. Courts generally do not recognize or award punitive damages for "emotional distress" or "loss of partnership" in these cases.
Consider, for example, the case of Gluckman v. American Airlines, decided in February 1994 by a court for the Southern District of New York. Floyd was a golden retriever who roamed around Andrew Gluckman's camp in Phoenix, AZ. The two quickly became friends. When it was time to return home to New York, Gluckman was told by American Airlines that Floyd would have to fly in the hold of the plane as excess baggage.
On the day of the flight, the plane returned to the gate due to mechanical problems. While he was there for over an hour, the temperature in the unventilated trunk rose to 140 degrees. Gluckman, who would miss his next connection, got off the plane and asked for Floyd. He was horrified to find the dog's crate covered in blood from Floyd's desperate attempts to escape. The dog had to be put down the next morning due to heatstroke and brain damage.
Gluckman sued American Airlines over multiple claims, including negligent infliction of emotional distress, intentional infliction of emotional distress, loss of companionship, and Floyd's pain and suffering. Gluckman argued that he was deeply disturbed to witness some of his dog's physical and emotional pain and suffering that led to Floyd's untimely death. But the court rejected his claim of inflicting emotional neglect, citing a previous case in New York. The court had ruled at the time that the law did not allow a plaintiff to compensate for the loss of property to a passenger, who in this case was also a dog, due to mental illness and emotional disturbances.
It ruled that Gluckman also could not recover from the intentional infliction of emotional distress because American Airlines had not directed its conduct prior to Floyd's death directly against him. Gluckman's claims for loss of companionship and Floyd's pain and suffering were also unsuccessful, as the court ruled that there was no independent claim for either situation when applied to an animal.
In April 2000, Congress passed the Safe Air Travel for Pets Act. Airlines are now required to report incidents of the loss, injury or death of animals on their flights and to improve staff training in the humane treatment of animals. While this law only makes gradual changes, there is hope that greater legal protections for animals can be achieved gradually.
take a stand
Currently, there are some promising ways to destroy the state of animal ownership. The first is to pursue the basic rights of animals like chimpanzees because of their striking resemblance to humans. Ninety-eight percent of chimpanzees' genetic makeup is identical to that of humans, and a wealth of scientific research has shown the high levels of self-awareness and cognition they possess. Animal rights activists argue that it is unfair to deny chimpanzees the right to freedom and physical integrity when those rights are granted to people like infants and coma patients who have less self-awareness and cognition. On a positive note, the New Zealand Parliament recently banned the use of great apes in research, testing and teaching unless it is in the best interests of the species being studied.
The second way is to recognize that companion animals are more than property. One important change that many states have made that recognizes the animals' best interests and offers hope for future developments: State cruelty laws increasingly allow judicial discretion to order confiscation of abused animals by owners who have been convicted of cruelty. And in February 2000, Tennessee broke new ground with passage of the T-Bo Act, a law that allows up to $4,000 in "non-economic damages" to people whose animals are killed or seriously injured leading to 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 welfare groups are also working to change the term "owner" to "caregiver". In July 2000, the Boulder City (CO) City Council followed the lead of San Francisco and Marin County, California by amending the city's municipal code to refer to people as "guardians" of their pets instead of their owners". While this does not change the legal status of animals, it is a step towards changing society's view. "By rejecting the concept and accompanying language of animal 'property', we can reconstruct the social and legal relationship between humans and animals," says Elliot Katz, D.V.M., president of In Defense of Animals, based in Mill. Valley, California. "As our societal perception of animals changes, legislators and courts will begin to recognize our obligation to protect animals not as someone's personal property, but as sentient beings with feelings and interests of their own”.
Melissa Bjorkenstam lives in Los Angeles and is a second-year law student. She is a volunteer at the UCLA Animal Welfare Association.
Second, creating a favorable precedent for our fellow men can be done step by step through individual cases, whose decisions create universal law. Individual judges are unlikely to make a radical change in a single case. However, once animals have been given greater protection in some cases, it may be easier to introduce legislation that codifies these decisions into statutory law.
A third possibility of achieving legal changes is the introduction of an electoral initiative or a referendum. This procedure is aimed directly at the electorate and bypasses the legislature, which can be subject to pressure from various quarters. In 1998, for example, California voters passed an initiative banning the transport of animals associated with the sale of horse meat for human consumption. However, this jurisdiction is also an expensive way to change the law.
-MEGABYTE.
© ASPCA 2001
ASPCA Animal Watch - Spring 2001
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