Can “property” have interests?
Animals’ legal status as property has long been the biggest hurdle in protecting them through the legal system. This classification has far-reaching implications: animal suffering isn’t recognized as compensable harm in tort cases, animals can’t enforce protections provided by laws like the Endangered Species Act or the Animal Welfare Act, and their legal value is usually limited to their Òreplacement cost.
For decades, animal lawyers and ethicists have tried to chip away at this property status to attain some form of rights for animals. In recent years, Steven Wise and the Nonhuman Rights Project have garnered attention for their battle in New York courts to establish rights for captive chimpanzees. Using the common law of habeas corpus, they argue for the chimps as named petitioners, challenging their detention like other “unjustly incarcerated beings” throughout history.
While these efforts represent a significant legal leap, less publicized but successful efforts in state legislatures have been moving the needle slowly but deliberately towards legal recognition of animals’ interests. Several states have taken steps to acknowledge what’s obvious to anyone who has cared for an animal Ð they are not mere objects. They have interests, preferences, and experience pain, both physical and emotional, much like humans do.
Animal Interests in Domestic Relations Cases
One area where animal law issues frequently arise is in domestic relations. Traditionally, courts have been constrained by animals’ property status in divorce proceedings. In divorce proceedings, there are property issues and there are custody issues. Courts generally divide property according to state law and address custody issues by determining what is in the best interest of the children. Animals fall on the property side of the line meaning that there is no such thing as custody proceedings for a family pet. In Pennsylvania, even where the couple were merely seeking enforcement of a settlement agreement they had executed for shared dog custody, the court dismissed the complaint, likening it to seeking “a visitation schedule for a table or lamp.” According to many courts, since pets are property under the law, it makes no sense to consider what living arrangement a dog might prefer any more than it makes sense to consider whether a painting would rather hang on the former husbands or wifes wall. Some judges have recognized that this can lead to injustices so they have entered orders enforcing ownership and custody of pets without any clear legal authority to do so.
However, recently adopted statutes in Alaska, California, Illinois and New Hampshire change this paradigm. These states have all passed laws empowering courts to make determinations about living arrangements for companion animals in final divorce orders by considering what is in the best interests of the animal. This means courts in these states can now take evidence on issues like who took responsibility for pet care and the closeness of the bond between the pet and each “parent” when determining custody arrangements.
Advocates for Animals in Court
Connecticut has taken another significant step by allowing the appointment of attorneys or supervised law students to act as advocates for dogs or cats in cruelty prosecutions or any court proceeding regarding their welfare or custody. These advocates can monitor cases, consult experts, review records, attend hearings, and present information to the court pertinent to “the interests of justice.” Maine has adopted its own version called Frankys law and several other states have introduced similar bills.
This type of law is particularly important because animal cruelty cases are sometimes prosecuted by humane police officers without a prosecutor’s assistance or by prosecutors with no experience handling cases with animal victims. It recognizes that animals who have been neglected or mistreated and seized by authorities have interests of their own that may not be addressed in the current system.
Moving Towards Animal Rights
These legislative changes represent small but significant steps towards the adoption of actual legal rights for animals, as opposed to just protections that may or may not be enforced by others on their behalf.. These laws bring the interests of specific animals before the court, a key step in the potential determination of legal rights. While we’re still far from a widespread legal recognition of animal rights, these developments show a growing understanding that animals are more than mere property and have interests that deserve consideration in legal proceedings.
As society continues to evolve in its understanding of animal cognition and emotion, it’s likely we’ll see more legal developments in this area. The challenge for lawmakers and courts will be balancing these emerging concepts with traditional legal frameworks and practical considerations. Nonetheless, these recent changes provide a glimpse into a future where animal interests may play a more significant role in our legal system.
