A Lawyer Makes the Case That Chimpanzees Should Be Legal People

Photo courtesy of 2014 Pennebaker Hegedus Films, Inc.

Attorney Steven Wise of the Nonhuman Rights Project has only met his client once, a year ago. They locked eyes through the bars of a cage inside a dark warehouse in Gloversville, New York. The client, a 26-year-old chimpanzee named Tommy, was conspicuously absent at a New York Supreme Court hearing Wednesday during which Wise argued for his freedom. That hearing was the climax of a crusade Wise started in December 2013, when the lawyer filed a writ of habeas corpus of Tommy's behalf, formally challenging the legality of his imprisonment. In courts throughout the United States, habeas corpus has only ever applied to human beings, but Wise is making the case that an animal sharing 94 percent of our DNA should enjoy the same legal protections that we do, and he's citing more than 400 scientific articles on chimpanzee cognition and self-awareness to bolster his point. With a decision expected in a matter of weeks, I figured now was as good a time as any to speak with him about the merits of his case.

VICE: Can you describe the process that you’ve been through so far?
Steven Wise: In December 2013, when we filed a request for an issuance of the writ of habeas corpus on behalf of Tommy, the judge refused to issue the writ on the grounds that Tommy is not a person, which is what we were expecting, so we immediately filed an appeal. [Wednesday] was our hearing in front of the appellate court where we had oral arguments as to whether they would reverse the refusal.

How clear is the law on personhood?
If you look at the statutes of New York, there are probably 30 or 40 different places where “person” is defined in a different way. The common law is very powerful here in New York. That’s the law judges make. Essentially, it’s up to the judges to decide who is going to be a person.

How do you define personhood?
We argue that an entity who is autonomous and self-determined should have that distinction. We’ve worked with animal-cognition scientists who back us up with data on this.

What does the research say?
Swedish researcher Matthias Osvath specifically addressed what he calls “mental time travel,” showing that chimpanzees can remember the past. They can anticipate the future and plan for it.

How does he prove that?
He’s conducted many elegant experiments, but just to give a quick example, he writes about a chimpanzee living on an island in a Swedish zoo. This chimpanzee obviously does not wish to be on the island. He gets up early in the morning to find rocks. Then he hides them so that the zookeepers cannot find them, because the zookeepers know what he’s going to do. Late in the afternoon, when the visitors are crowding around, he picks up the rocks and starts pelting the visitors. That’s an overt demonstration of someone who is autonomous and planning to do something later on when he’s in a completely different state of mind.

Just to be clear, doesn’t every animal have autonomy in the sense that it’s performing its own functions for its own purpose? What’s the distinction?
One of our experts defined autonomy as behavior that is not the result of instinct or learning. It’s something in the mind where the entity is governing itself. Admittedly, it’s hard for scientists to understand what’s happening in the mind of a being who doesn’t share their language or culture and is separated by millions of years of evolution. It’s hard to figure out what behavior is instinct, and what behavior is an animal understanding time—having an autobiographical self as opposed to someone like a human with Alzheimer’s who is always living now-now-now-now-now.

What stage of human development is a chimpanzee’s intelligence equivalent to? What age?
It’s debatable. In some ways, their cognitive abilities are more advanced than a two- or three-year-old person's. In some ways, they’re smarter than eight-year-olds. And in some ways they’re even superior to an adult. When I was in Japan, I went to Tetsuro Matsuzawa’s chimpanzee cognition lab. There was a grid on a computer screen and numbers from one to nine would flash in the boxes for two-tenths of a second. The chimpanzee’s job is to absorb what the numbers are, to understand how to count from one to nine, and then to touch the grid in the same order that the numbers appeared. They can do that. Their short-term memory is better than ours. I actually tried it, and was unable to do it. They had to slow it down for me. It’s discouraging when you watch how easy it is for the chimpanzee. And, of course, they have the kind of intelligence that would allow them to live in an African jungle, which I obviously don’t have.

You cite another study in your case in which chimpanzees were anesthetized and their faces marked with a red dot. When presented with a mirror, they touch the dot on their actual face, suggesting self-awareness. A similar kind of recognition was recently demonstrated in pigs. Would you ever bring a case against the meat industry for habeas corpus?
When we talked to the judges earlier, they also wanted to know the implications. I said that we’re not seeking personhood on behalf of any other being in the world except for Tommy. It does appear, however, that there other species—likely elephants and cetaceans [whales and dolphins]—that meet the criteria.

How would you draw the line?
It’s a complicated question. But right now, for a judge to determine whether a being should have any kind of legal right, the judge simply needs to know their species. If you’re a human, you’re entitled, and if you’re not a human, you have no rights. What we’re simply saying is that a being’s species is not a rational place to draw the line. Instead, the judge should ask, “What kind of being is in front of me? What cognitive abilities do they have?” We’re asking the judge to take a more evidence-based look.

A few European countries have moved in that direction. For example, Switzerland amended its constitution to categorize animals as beings and not things. How has that played out?
There are a lot of statutes that have been passed. Most of them are rather vague, and it’s not clear exactly what they mean in practice. Are you trying to tell me that a firefly or a beetle has a right? It doesn’t appear to me that that’s true. No court is going to rule that way. Now, if there’s a statute passed that says a chimpanzee shall be a person for the right of habeas corpus—that will actually have an impact.

Is there any precedent for this kind of case in the US?
Well, at one time not all human beings were persons. Human slaves could not seek a writ of habeas corpus in the Southern states before the Civil War. I often talk about the famous case of Somerset v. Stewart. That was a 1772 decision by a London court in which James Somerset, who was a black slave, appealed to common-law habeas corpus. He was able to change his legal status from that of a thing who didn’t have any rights to that of a person, who then became free.

Have there been any recent cases here in the US that are relevant?
The Court of Appeals of New York in a 1972 case actually talked about personhood the way that I am. They maintained that “person” is not a synonym for “human being.” Instead, a “person” is an entity that the legal system believes ought to have legal rights. They specifically say that there is no reason why a nonhuman animal could not be a person. They even say a deity could be a person. In 2000, the Supreme Court of India cited some of the same sources as the 1972 case to say that the holy books of the Sikh religion are a person. In British-controlled India, there were decisions holding that a Hindu idol was a person and that a mosque was a person. There was also a treaty signed between the indigenous people of New Zealand and the monarchy in 2012 in which it was declared that a river is a person.

Have you brought up Citizens United, the US Supreme Court ruling effectively holding that corporations are people?
I think [Supreme Court] Justice [Samuel] Alito asked in the Hobby Lobby case last year, “How can a corporation care about birth control?” And they said that a corporation is basically a bunch of human interests that come together to form a corporation. That’s one way of viewing it. But, obviously that’s not true for a river, a mosque, or a Hindu idol.

I assume that Tommy has to have some recognition as a “being” under animal cruelty laws, doesn’t he?
He actually doesn’t. He’s not a legal person, and that means that he is a legal thing. Under the law, a legal thing exists solely for the sake of a legal person. Tommy can be treated like a chair or an inanimate object. You can kill and you can eat Tommy.

If animal cruelty laws don’t recognize an animal’s “being-ness,” then what are they based on?
The first animal cruelty laws began in England in the 1820s, and they actually were seen as a way to protect people. They wanted to stop cruelty to animals because they believed that it led to cruelty to other human beings. The law slowly evolved with the intention of stopping animals from suffering. But it’s important to remember, these laws are not enforceable by the animal or by people on behalf of the animal. The crime is against the state. It’s like if someone stole my wallet here in New York. In court, it’s not me versus the person who stole my wallet. It’s the state of New York versus the person who stole my wallet. I’m just kind of like a bystander. The person hasn’t really wronged me—the person has violated the state. So Tommy could be the object of a crime, but he doesn’t have a right to do anything about it.

What would the granting of personhood achieve in Tommy’s case?
It would simply mean that Tommy would have the right of bodily liberty—that he would be able to physically move around. We want him moved to a sanctuary in Florida where there are other chimpanzees for him to play with. Tommy knows that he’s been in a cage, and can anticipate that he will be in a cage for as long as he can see into the future. Putting a chimpanzee in isolation is similar to putting a person in solitary confinement. In fact, the National Institute of Health recommendation is that chimpanzees never be kept in groups of fewer than seven because they’re such social animals. For Tommy to live in a cage by himself with only a little TV for companionship—the only word for that is torture.

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