Should Animals Have Personhood?

“A being who is autonomous, who can choose, who is self-aware, these, your honor, are essentially us,” lawyer Steven Wise told Judge Sise in the courtroom of the Montgomery County courthouse in Fonda, New York on Dec. 2. He was arguing on behalf of Tommy, a privately owned chimpanzee imprisoned in a dungeon-like enclosure in Gloversville, N.Y. Wise and his legal team were asking that the court issue Tommy the writ of habeas corpus, granting him a legal right to bodily liberty, and allowing him to be released into a sanctuary. That moment in the courtroom was the culmination of a 30-year-long journey for Wise, the founder and president of the Nonhuman Rights Project (NhRP), an organization that seeks to change the common law status of at least some nonhuman animals from “things” devoid of any legal right, to “persons” with basic fundamental rights like bodily integrity. Last year, NhRP filed a series of groundbreaking lawsuits on behalf of four chimpanzees — Tommy; Kiko, who is living in a cement building in Niagara Falls, N.Y.; and Hercules and Leo, two chimps at SUNY Stony Brook University currently used for research on human locomotion. With them to the courtroom the legal team brought a hundred pages filled with affidavits and evidence demonstrating how cognitively complex our “evolutionary cousins” are. And while the judges in the lower court hearings denied the writs of habeas corpus, two of them expressed sympathy, with Judge Sise going as far as to proclaim, “I hope you continue. As an animal lover, I appreciate your work.”

And continue they have. On Oct. 8, the Nonhuman Rights Project went before the New York Supreme Court, Appellate Division arguing for Tommy’s legal right to personhood. And on December 2nd, they did the same for Kiko. On Dec. 4th, New York State Appellate Court, Third Judicial Department issued their decision in Tommy’s case, declining to enlarge the common-law definition of ‘person’ in order to afford legal rights to an animal. “We decline to do so, and conclude that a chimpanzee is not a “person” entitled to the rights and protections afforded by the writ of habeas corpus,” read the decision. Natalie Prosin, the executive director of NhRP, recalled to us the day the decision came down. “I’m on the train [home to Washington DC], and we just had a whirlwind of a day — we had a decision that came out not in our favor, a lot of media attention, and I’m sitting on the train and I’m thinking, ‘Poor Tommy is still in his cage in Gloversville.’ And I’m grounded by that reminder,” she said. “And it’s really unfortunate that these judges aren’t getting it, and that they’re not getting it quickly. Because we have a life at stake. Tommy’s life matters to Tommy.”

Prosin is encouraged by the global interest that the stories of Tommy, Kiko, Hercules and Leo have sparked. “This is a conversation that needs to be had not only in a courtroom, but in the living rooms of people at home,” she says. When the opportunity arises in everyday encounters to shed light on the status of animals in our society, she explains to people that “animals have the same rights as the chair you’re sitting in. Which is zero. They have no rights at all. It is shocking for people to realize that under our legal system, animals are property,” she says. “And you can basically do whatever you want with them within the confines of certain animal welfare statues or laws. And some animals are completely exempt from those.”

Just two days after we spoke with Prosin, something remarkable happened. On Dec. 21, news broke that a court in Argentina had recognized an orangutan named Sandra, who was born in captivity and had been imprisoned at the Buenos Aires Zoo for two decades, as a “person.” This was followed by collective elation, with people by and large expressing their support of a non-human animal bearing certain rights. As the week went by, however, the details of the court’s ruling became less certain. As an authority on habeas corpus, the team at NhRP worked to accurately translate and make sense of Sandra’s decision with the help of a well-respected interpreter who has translated President Obama’s speeches and Pope John Paul II’s speeches for Telemundo. On Dec. 24 they released an official statement, which clarified that in the decision “no examples of rights to which a nonhuman animal is entitled are given and there is no statement that either orangutans in general, or Sandra in particular, are entitled to any rights, including habeas corpus.” And while Sandra’s case is still shrouded in mystery, it gives an undeniable indication of a positive development. In the week following Sandra’s ruling, we spoke several times with Steven Wise about the work of the Nonhuman Rights Project, and the road ahead.

LAIKA: Initially you told me that your best guess about Sandra’s decision was that the court found that she is “essentially a person with the capacity for rights.” Now that more facts have emerged, do you still have plans to bring Sandra’s case to the Court of Appeals in Tommy’s case?
Steven Wise: As soon as we feel confident that it said some of what the early newspaper articles claimed it said, or anything near it, we’ll then bring it to the attention of the Appellate Court. They’ll either care about it, or not care about it. But we think at that point it would be important. We’re not bringing it to the court right now, because the word “person” did not show up, the word “habeas corpus” didn’t show up. However, the word “rights” did show up, and that has really caught our attention in the second paragraph of [Sandra’s] opinion. But also we noticed that the court did not cite any cases, and did not cite any statutes. They only cited two treatises. And we’re not sure what that means. So rather than stick our neck out and say something that we really can’t back up, we just assume a conservative position. Because we have a very powerful case based on arguments that are clear, and we don’t want to muddy up our waters by claiming something has occurred that maybe we’ll be showing hasn’t occurred. We’ve seen that people look to the Nonhuman Rights Project to tell them the truth, to make as powerful arguments as possible, and not overstep ourselves. It’s really important for people to know that when they read something that we’re saying — it’s true. And if we don’t know something, then we say, “We don’t know it.”

How would you describe your mission at its core?
Here’s the way we view what we’re doing. I often talk about there being this thick “legal wall” that separates all humans from nonhumans. What the Nonhuman Rights Project is trying to do is punch the first hole through that wall. And then at that point, kind of look around and begin to try to figure out, essentially, how we can widen it, and deepen it. In the United States, there’s 50 different state courts, and then there’s DC, the Virgin Islands, and Puerto Rico, and there’s the federal courts… There’s probably 500 Supreme Court judges in the United States! There’s an awful lot of work to do. So we’re just trying to punch that first hole through the wall. And then we are prepared to test its limits, widen it, perhaps use other causes of action, use other animals. Just figure out how we can continue to either capitalize on whatever victories we have, or analyze our defeats and figure out how to make them better. But we understand that this thing can move a thousand ways. And it’s going to move a thousand ways. Just looking at the fact that we filed the three cases in the three trial courts in the state of New York, and they went to three different appellate courts — they went three entirely different ways in just the three Appellate Courts within the state of New York! So we understand that judges are going to be all over the map for a long long time. But on the other hand, we really are interested in working with people on an international level. We have been working with lawyers in Argentina, and lawyers in England, we’re working with lawyers in France, and lawyers in Spain, Portugal, and Brazil, Australia. We want to have people accomplish the sort of things that have happened in Sandra’s case. We think this should be operating not just in the state of New York and the United States, but throughout the world.

There have been really supportive and heartwarming reactions from people to Sandra’s story. And of course their fare share of negative comments along the lines of “next thing you know, animals will have the right to vote!” or “human beings don’t even have rights, and now this!” What would you say to those people?
I would tell them their facts are wrong. No one is seeking the right to vote for a nonhuman animal — number one. Number two, all humans do have huge numbers of fundamental rights. So these people, quite simply, have their facts wrong. Now, I don’t have any hope that I’ve now convinced them. They’ll probably latch on to something else. Sometimes when I’m on radio shows, I have callers tell me that humans have souls, and animals don’t. And that God gave humans souls. And my answer always is, “Well, if you have to choose between who you’re going to believe — me or God — I don’t think that’s a real choice. And I’m not going to bother arguing with you.” That’s what I do: next caller!

“Now is the time to incorporate activism into your every day.’’

It seems more productive to focus on the coherent and positive dialogue, rather than validate the nonsensical ones with arguments.
Yes! All of us at the Nonhuman Rights Project obviously are intensely emotionally committed to it. But our job as lawyers is to channel that enormous emotion into arguments that will win in a court of law.

Do you feel confident that you will win?
I think we have never felt anything but the greatest confidence. We believe that our arguments are not only correct, but that they’re on the side of history. And we have no doubt that we’re going to win. We just don’t know when. We’ve always been very confident that we are.

Tommy the chimpanzee is 26 years old, and has been living in captivity his entire life. Can you talk about your feelings when you saw him in his cage in Gloversville, NY?
The feelings I had came from the fact that I had seen chimpanzees living in the wild in Africa, and not behind bars, not in a cage. I understand how incredibly cognitively complex the chimpanzee is. I also understand how extraordinarily social of a being a chimpanzee is. And so for me to see a chimpanzee who is in a cage by himself — it made me feel that I was looking at a slave. And I felt all the things that I would’ve felt if I had been looking at any slave.

Yet his owner claims he’s well taken care of.
A chimpanzee who is living in solitary confinement is being taken care of the way the warden of the state penitentiary would say that I was being taken care of if I was in solitary confinement. I’m being fed, I’m not going to die of disease. But the problem is that chimpanzees like humans are extraordinarily social beings, and a chimpanzee in solitary confinement is similar to a human in solitary confinement. And there are further needs than just making sure that you’re being fed. You put me in solitary confinement, and give me a television set, would I wish to stay in solitary confinement watching TV, or would I wish to be somewhere else? The answer to the question is clear just by asking it.

What kind of evidence are you presenting to the courts to demonstrate the cognitive complexity of chimpanzees?
We put in a hundred pages of affidavits from nine very highly competent chimpanzee cognition experts from Japan, Sweden, Germany, England, Scotland, and the United States. Some of them have been studying chimpanzees for nearly half a century. They had studied chimpanzees in the wild, and in captivity. It was clear that chimpanzees were autonomous and self-determining beings. They had an autobiographical self. They had what’s called episodic memory. They were self-conscious. They were self-knowing, they had self-agency. They engaged in referential communication. They were empathic. They had a working memory, language, metacognition; material, social, and symbolic culture; the ability to plan, to act intentionally, to learn sequentially; they have crossmodal perception. They can understand cause and effect; they can imagine; they can imitate. The can emulate, they can innovate, and they can use tools. And there’s extra evidence that we put in of what chimpanzees can do. Which is quite a lot.

It’s hard to understand how based on that kind of evidence a judge would not rule in your favor.
We put all of these things in, but we didn’t imagine that the court was going to say — as the third department did in Tommy’s case — that in order to be a “person” you have to be able to “bear duties and responsibilities.” In our motion for Leave to Appeal to a higher court, we pointed out that saying that in order to be a person for purposes of habeas corpus you have to bear duties and responsibilities — is simply wrong. It simply doesn’t follow New York law. And we pointed out two main ways it doesn’t. It ignores the legislature which has passed the trust statute that permits your dog, your cat, your pet mouse to be the beneficiary of a trust, without any requirement that they bear duties and responsibilities. And yet, they have this legal right to the money in a trust. They also ignored the Court of Appeals in New York which goes into great detail as to what you have to do to be a “person.” And they specifically say that a person is not a biological issue. It doesn’t correspond with nature. You don’t have to be a human being. They cite several secondary sources for this. And amongst the secondary sources are those that say that nonhuman animals can be persons. But they ignored that statement. So we think it’s a matter of picking and choosing. We think it’s an error of law, and we think that the Court of Appeals of New York needs to correct that error of law.

Do you think the outcome ultimately rests with the kind of judge you end up with?
This is a brand new thing. So we kind of expect them to be all over the map. I’ve been working on this for 30 years, so to me it’s incredibly familiar. But these judges have just been thinking about it for a period of weeks, or just a few months. We believe that it’s a very new thing for them, and they need to get used to these sort of arguments. Five years from now, ten years from now, there would have been ten cases, or twenty cases, or thirty cases. The law will be much more developed along the way. We’re waiting for another court to rule, and we’re asking that court to ignore what Tommy’s court said, because they’re wrong. Meanwhile, we’re trying to move any of our three cases that we’re dealing with in New York up to the High Court of Appeals and see if we can get them to see our way. Otherwise, we’re already preparing cases to file in courts outside of New York. Which we will — whether we win or we lose. This is a long-term strategic litigation campaign that assumes we’re going to do a lot of losing, and we’ll do some winning. We have to be able to understand how the courts are going to react to this. One of the problems we had in the first case that we brought up to the Appellate Court was that the other side neither filed a brief, nor showed up for the oral argument. So we tried to cover a hundred areas in a 150-page brief. Now that we have a better understanding of what’s on the court’s mind, and what the court didn’t like about our argument, we can begin to focus on explaining why that court was wrong.

So what is your collective morale like during this long-term process?
It’s impossible to discourage us! We’re not discourageable. We have been amazed by the tsunami of support that we have gotten in the past year — moral support, people arguing in our favor on the internet and in legal articles. We thought we deserved [to win], but we had no idea if anyone else was going to feel the same way. And we have been extraordinarily pleased with the reaction not only in the United States, but throughout the world. People ask me why I began this in 1985, and why we filed suit in 2013, twenty eight years later. And the answer I’ve always given is that we felt that this was the earliest possible time in which we could win. We didn’t know whether we could win, but we felt that five years earlier we didn’t really have a chance of winning at all. Now we feel that we have a chance at winning. And it’s only going to get greater and greater, because — for example — the scientific work with chimpanzees and other non-human animals is only revealing more and more of the complex minds that they have. Our 100-page affidavit cited over 400 scientific articles, and more than half of them had been written in the 21st century, with 6 of them since 2010. So scientific investigations are just pouring out. And they’re only going one way.

I believe personhood for nonhuman animals going to happen.
It is going to happen! I hope I’m around to see it. And even if I’m not, I will die knowing that it’s going to happen.