The Legal Rights of the Elephant in the Room
February 2022 | Jenifer Lissett, Staff Writer/Editor
It is not a stretch to say that non-human animals (NhAs) hold a special place in many people’s hearts. People find comfort, love, and entertainment from their interactions with NhAs. Though, it is mainly with the interactions with NhAs that animal rights activists take issue with. Many groups, such as the Non-human Rights Project (NhRP), find that the exploitation and imprisonment of animals do not allow a full realization of the right to habeas corpus, or bodily liberty, to beings with the same or similar mental capacities as humans.[1] Animal rights activists argue that animals think and feel like humans and are entitled to personhood rights, such as the right to free movement. The NhRP, the main animal rights group in this article, is attempting to argue that animals with the similar mental capabilities as humans ought to have the same rights as humans due to that mental similarity.
The NhRP finds the grounds to bring Happy the Elephant’s habeas corpus violation to court because they believe that her right to bodily autonomy is being denied. Happy the Elephant currently resides in the Bronx Zoo.[2] She was captured at a young age and transported to multiple facilities until she was ultimately placed at the Bronx Zoo.[3] Happy is living in isolation from other elephants at the Zoo due to her life companion passing away, where the NhRP argues she is currently left in a small enclosure without the necessary socialization and room to live comfortably.[4]
The NhRP argues, based on expert witnesses’ years of study, that Happy is a being with “complex cognitive abilities…. [which] include autonomy, self-awareness, theory of mind, and working memory.”[5] Essentially, Happy is a being that is capable of self-governing, who recognizes who she is and was.[6] These expert witnesses, such as Joyce Pool, have spent their entire careers studying elephants in their habitat and, as such, find that these creatures think similarly to humans and are fully autonomous.[7] Moreover, the NhRP attempts to use the precedent set in People v. Graves, which granted “certain [NhAs] beneficiary rights under EPTL [New York Consolidated Laws, Estates, Powers, and Trusts Laws] § 7-8.1 and have therefore been ‘persons’ since 1996.”[8] Because these mental characteristics are undoubtedly human-like and animals have been granted some personhood rights previously, the NhRP argues that Happy should be granted similar rights to humans, in particular the right to bodily autonomy.
In response to the NhRP, the Bronx Zoo, a branch of the not-for-profit organization The Wildlife Sanctuary, disagrees with the methods and reasoning for the NhRP’s Complaint before New York’s Court of Appeals. First, they argue that the NhRP’s previous attempts to grant the personhood right of bodily autonomy to NhAs similar to humans have all failed.[9] The NhRP’s attempts to grant NhAs bodily autonomy rights have merely proven that even if NhAs have similar cognitive abilities to humans, they are not afforded the same rights. Moreover, The Bronx Zoo argues that the NhRP’s scope of argument is misplaced.[10] The NhRP is not arguing for the right of habeas corpus, but for a “change of conditions,” such as changing the place where Happy lives to one more suited for elephants.[11] The issue is not with the imprisonment of Happy within The Bronx Zoo, but rather with the living conditions she’s been subjected to in her current place of residence. Because of these reasons, The Bronx Zoo does not believe that Happy should be granted habeas corpus, and, consequently, bodily autonomy.
If the NhRP wins this Complaint on behalf of Happy, the way humans and NhAs interact will face a complete overhaul, and there may be an influx of legal cases within courts. Legally speaking, this flood of animal rights cases offers a point of contention because, at some point, the courts will merely be treated as means to grant animals rights. There will be animal rights groups that will attempt to grant animals with the same cognitive capabilities as Happy, even if the same NhA has been granted the same rights. Essentially, it seems the judicial system will be used to do the job of legislators, which is clearly a misuse of the legal system.
Another issue that must be addressed if the NhRP wins is the following: how will NhAs prove their similarities to humans so that they can gain personhood rights? As shown by the NhRP in their Complaint, Happy passed the mirror test to help establish that Happy, and any other being that passes it, has self-awareness.[12] The NhRP also has years of studies on elephants to cite as reasons in favor of Happy’s autonomy.[13] So, at its base, it seems that NhAs will have to prove that they have self-awareness and have decades of scientific study to gain the personhood rights. The resources will pose an issue for those who wish to provide NhAs with bodily autonomy, but Happy’s case shows that it is possible.
Generally speaking, human interactions with NhAs will be under even stricter control if animals are granted some personhood rights. For example, if all NhAs were granted personhood rights, then at some point it may be considered murder, legally speaking, if a human kills an NhA. To put it into specifics, people who participate in hunting, fishing, or farming may face murder or neglect charges if an animal dies at their hands. NRS [Nevada Revised Statutes] Chapter 200 lists the Crimes Against the persons, which includes the definition of murder as “...the unlawful killing of a human being: 1. With malice aforethought, either express or implied; 2. Caused by a controlled substance which was sold, given, traded or otherwise made available to a person in violation of chapter 453 of NRS; or 3. Caused by a violation of NRS 453.3325.”[14] If a hunter successfully kills an animal, the hunter could face murder charges due to the malice aforethought given to the act. If a group of NhAs are granted rights, then the recreational killing of these animals must cease due to the importance of their bodies.
Similarly, human and NhA interactions face change in terms of humans neglecting NhAs in their care. As defined by NRS 200.5092, neglect is “the failure of a person… who has assumed legal responsibility… for a vulnerable person or who has voluntarily assumed responsibility for his or her care to provide food [and] shelter… necessary to maintain the physical or mental health of the older person or vulnerable person.”[15] Any NhA granted similar rights to humans could also potentially gain the special protection from their human guardians. For example, any common household pet, if they pass the mirror test and studies similar to elephants are conducted on them, could bring their cases to the court and face some form of repayment for the damages done unto them. If a person neglects to feed their pet, just like with children, they could be removed from their care. In all, it seems that granting NhAs personhood rights involves better protection for their interests.
It is clear that if Happy wins the Petition of Habeas Corpus, then there would be a complete change of how humans can interact with NhAs. Meat production, zoos, and hunting will all have to experience a change to ensure that the practice does not violate the NhA’s rights. If animals are granted these rights on a case-by-case basis, just one representative for an NhA group has to gain rights to set the precedent that any unjust injury will be reprimanded by a court. All of these changes are contingent on Happy winning her case, but even if she does not, the frequency at which these cases are brought in front of courts shows that the issue is gaining traction and that a change is imminent.
Sources
The Nonhuman Rights Project, Inc. v. James J. Breheny, Wildlife Conservation Society, No. 18-45164 EMD.
Lauren Choplin, “The Latest in Happy’s Elephants Rights Case,” Nonhuman Rights Blog, September 20, 2020.
Ibid.
Ibid.
The Nonhuman Rights Project, Inc. v. James J. Breheny, Wildlife Conservation Society, No. 18-45164 EMD.
Ibid.
Ibid.
Ibid.
The Nonhuman Rights Project, Inc. v. James J. Breheny, Wildlife Conservation Society, No. 18-45164 EMD. Memorandum of Law Response.
Ibid.
Ibid.
Lauren Choplin, “The Latest in Happy’s Elephants Rights Case.”
The Nonhuman Rights Project, Inc. v. James J. Breheny, Wildlife Conservation Society, No. 18-45164 EMD.
Nev. Rev. Stat. § 200.010 (2013).
Ibid.