BUENOS AIRES, Argentina; ALBANY, New York––Ruling opposite to the findings of the New York Court of Appeals just two weeks earlier, the Argentinian Second Appeals Court on December 19, 2014 agreed that an orangutan named Sandra has been improperly imprisoned for 20 years at the Buenos Aires Zoo and issued her a writ of habeas corpus.
A writ of habeas corpus, somewhat differently defined by the laws of various nations, is an order that a prisoner should be released. Sometimes the writ is conditional, as in a case where a prisoner is allowed to post bail. Sometimes the writ amounts to an absolute discharge, as when the prisoner is found to have been wrongfully convicted, or imprisoned without charges being brought within a reasonable length of time.
Born in 1986 at the Rostock Zoo in Germany, Sandra was transferred to the Buenos Aires Zoo in 1994.
Explained the Sydney Morning Herald, of Sydney, Australia, whose Argentinian correspondent covered the case, “Because Sandra was born in captivity she will not be released into the wild, but she is recognized as an individual with certain legal rights. The ruling by three magistrates sets a precedent within Argentine jurisprudence, which has previously considered animals to be things.”
The Argentinian verdict is also a precedent worldwide. The arguments supporting it, however, may have limited leverage within the legal structures of Anglo-Saxon common law, forming the framework of law in the U.S. and most of the other nations that were once part of the British Empire, and Napoleonic law, the foundation of law in much of Europe and the Middle East.
While Argentine law incorporates principles borrowed from Napoleonic law and several other traditions, it uniquely “was the first civil law that consciously adopted as its cornerstone the distinction between rights from obligations and real property rights,” summarizes Wikipedia.
The verdict in Sandra’s case may reflect that cornerstone distinction.
Wrote the Argentinian Second Appeals Court bench, in a unanimous decision, “Starting from a dynamic and non-static legal interpretation, we acknowledge that the animal is an individual with rights, and therefore non-human individuals (animals) are possessors of rights, such that they are protected according to the appropriate measures.”
History of the case
The habeas corpus ruling was won by the Buenos Aires-based Asociación de Funcionarios y Abogados por los Derechos de los Animales, which termed Sandra’s incarceration at the Buenos Aires Zoo “the unjustified confinement of an animal with proven cognitive ability.”
A lower court rejected the AFADA application for habeas corpus, and the first appeal of the rejection.
“But with the new ruling,” the Sydney Morning Herald said, “the Buenos Aires Zoo has 10 days to bring the case before the Supreme Court. If the high court does not block her release, Sandra will be transported to a sanctuary in Brazil, where she will live in semi-freedom with other large primates.”
New York rules the other way
Ruling on essentially the same arguments in a different legal context, a five-judge New York Appellate Division panel on December 4, 2014 held unanimously that a 26-year-old chimpanzee named Tommy is ineligible for a writ of habeas corpus.
Wrote Presiding Justice Karen Peters, “Needless to say, unlike 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.”
Attorney and Nonhuman Rights Project founder Steven Wise, who brought the case, “requests that this court enlarge the common-law definition of ‘person’ in order to afford legal rights to an animal,” Peters continued. “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.”
Added Peters, “Not surprisingly, animals have never been considered persons for the purposes of habeas corpus relief, nor have they been explicitly considered as persons or entities capable of asserting rights for the purpose of state or federal law.”
Peters’ opinion was endorsed by New York appellate justices John Lahtinen, Elizabeth Garry, Robert Rose, and Michael Lynch.
Anti-abortion ruling precedent
A retired performing chimp, Tommy “was placed with Patrick Lavery about 10 years ago,” wrote George M. Walsh of Associated Press. “Lavery said Tommy lives in a seven-room enclosure in Gloversville (New York) with lots of toys and other enrichment. A trial level court had previously denied the Nonhuman Rights Project’s effort to have Tommy released. The Nonhuman Rights Project said it will appeal to the state’s top court, citing other New York appeals court rulings it says are at odds with Thursday’s decision.”
Added Robert Gavin of the Albany Times, “Wise said the court’s decision contradicts a 1972 decision in the case of Fordham University law professor Robert Byrn, an anti-abortion activist who sued the New York City Health and Hospitals Corporation on behalf of all fetuses scheduled for abortion. Byrn argued that unborn children were human beings. The court’s decision, which preceded Roe v. Wade and upheld abortion rights, stated that ‘upon according legal personality to a thing the law affords it the rights and privileges of a legal person.’”
Citing the 1972 ruling as a precedent, Wise has reportedly pursued similar cases in Rochester, Niagara Falls, and on Long Island, all in New York state, on behalf of three other chimps and an elephant.
Matthew Hiasl Pan
Association Against Animal Factories founder Martin Balluch, of Vienna, Austria, brought the first “personhood” case in modern times in 2007, seeking to have a chimpanzee named Matthew Hiasl Pan declared legally a person. Animals had been considered legal persons by various medieval courts, mostly to their disadvantage, in being convicted of crimes against humans.
Matthew Hiasl Pan and a companion, Rosi, lived at a sanctuary that had gone bankrupt. Both chimps were captured in Sierra Leone in 1982 and smuggled into Austria for laboratory use, but were rescued and sent to the sanctuary by Austrian customs agents. Balluch sought personhood status for Matthew Hiasl Pan as a test case, hoping to prevent him from being sold abroad by creditors, beyond Austrian protection. The Austrian Supreme Court in January 2008 rejected Balluch’s last appeal.
The Oregon Supreme Court meanwhile issued two rulings of limited but perhaps precedental application to “personhood” arguments in August 2014.
Explained Aimee Green of the Portland Oregonian, “The Oregon Supreme Court said that animals––whether they be horses, goats, dogs or cats––shall be afforded some of the same basic protections as human beings.
“In State v. Arnold Nix,” Green continued, “the Supreme Court ruled that a Umatilla County man who was convicted of starving 20 horses and goats on his property could be sentenced not just on one count of second-degree animal neglect, but on 20 different counts, meaning each animal counted as a separate victim.
“In State vs. Linda Fessenden and Teresa Dicke,” Green summarized, “the Supreme Court found that a sheriff’s deputy was legally justified in 2010 in rushing onto a Douglas County pasture to get medical help for a horse who was so malnourished every one of his ribs was showing. The state’s high court ruled that the deputy, who thought the horse was in immediate danger of falling and dying, didn’t need a warrant to step onto private property and get the animal to a veterinarian.”
Claimed animals could not be “victims”
Defendants Nix, Fessenden, and Dicke all contended that their convictions were invalid because animals are property. Nix held that animals cannot be considered “victims” because they are not human; Fessenden and Dicke argued that because animals are property, police should have to obtain a warrant before entering private premises to inspect and remove them.
Wrote Oregon Supreme Court Justice Jack Landau in the Nix verdict, “The issue in this case is whether defendant is guilty of 20 separately punishable offenses, which turns on the question whether animals are ‘victims’ …The trial court concluded that, because only people can be victims within the meaning of that statute, defendant had committed only one punishable offense. The court merged the 20 counts into a single conviction for second-degree animal neglect. On appeal, the Court of Appeals concluded that animals can be victims and, accordingly, reversed and remanded for entry of a judgment of conviction on each of the 20 counts and for resentencing. We agree with the Court of Appeals and affirm.
“In concluding that animals are ‘victims’,” Landau explained, “we emphasize that our decision is not one of policy about whether animals are deserving of such treatment under the law. That is a matter for the legislature. Our decision is based on precedent and on a careful evaluation of the legislature’s intentions…In this case, the underlying substantive criminal statute protects individual animals from suffering from neglect. In adopting that statute, the legislature regarded those animals as the ‘victims’ of the offense.”
“The legal status of animals has changed” says judge
Upholding the convictions of Fessenden and Dicke, Justice Martha Lee Walters wrote, “We conclude that the officer [who entered their land] acted lawfully because he had probable cause to believe that defendants were committing the crime of animal neglect and reasonably believed, based on specific articulable facts, that immediate action was necessary to prevent further imminent harm to and the death of the horse.”
Added Walters, “As we continue to learn more about the interrelated nature of all life, the day may come when humans perceive less separation between themselves and other living beings than the law now reflects. However, we do not need a mirror to the past or a telescope to the future to recognize that the legal status of animals has changed and is changing still…”
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