Last week Justice Karen K. Peters of the Appellate Division of the New York State Supreme Court (in what we can only assume is a break from her usual job) took the time to declare that chimpanzees are not people, legally speaking.
This ruling follows deliberations over an October case concerning Tommy, a middle-aged ex-entertainer ape belonging to and living in a shed owned by Gloversville, New York resident Patrick Lavery. Filed by the Nonhuman Rights Project (NRP), the plaintiffs argued that, as chimps have near-human intelligence, Tommy should be guaranteed human or near-human rights, namely freedom from personal ownership by other sentient beings.
But whatever evidence of Tommy's ability to reason, intuit, or love was presented, Justice Peters found it unconvincing in the cold vacuum of legal reasoning. Although the US and many other nations protect apes from animal cruelty and limit experimentation on them, there's no precedent for granting apes human or near-human rights, the judge claimed. And besides, chimpanzees, she held, "cannot bear any legal duties, submit to societal responsibilities, or be held legally accountable for their actions."
Although the NRP plans to appeal the ruling to the New York State Supreme Court, this accountability-focused definition of personhood upholds and fleshes out the traditionally narrow legal definition of humanity just as the scientific and philosophic borders of our specialness come under fire. While no one ought to expect law to follow science's head scratching or philosophical masturbatory pacing on this issue, the legist's stubbornness does not bode will for the wider and active great ape rights movement.
October was not the first time Tommy's case appeared in the New York State court system. The NRP first filed a case for his liberation in December 2013, along with two other cases concerning isolated and privately held New York State apes: Kiko and her late partner, Chimp, two chimpanzees in Niagara Falls trained in martial arts combat; and Hercules and Leo, two chimpanzees used in university biomechanical research. After liberation, the organization argued, the chimpanzees should be released to live freely among other apes in one of eight habitats run by the North American Primate Sanctuary Alliance (and partially funded by the federal government).
The maiden legal action for the organization, founded in 2007 by Animal Legal Defense Fund co-founder Steve Wise, the activists involved believed New York's legal history made it the most likely to entertain their cases. Instead, one case was tossed out offhand and the other two failed in the courtroom. In Tommy's case, his owner successfully argued that his "shed" was actually a state-of-the-art $150,000 habitat and that the case for his liberation was null and void as he'd been on the waiting list to join a sanctuary for three years.
Although legal precedent (like our shockingly and necessarily clear laws against willing property to pets) weighed against Tommy in America, beyond our shores there have been several prominent, if very uneven, cases setting international precedents for ape rights. In 2005 a court in Brazil freed a chimpanzee named Suiça using a personhood argument, although a similar argument failed Jimmy the chimp five years later in Rio. And in 2007, the autonomous Balearic Islands of Spain guaranteed apes personhood, although the same year an Austrian judge denied a British woman the right to adopt Hiasl the chimp like a human child to protect his interests after his zoo home closed.
These cases stem from a movement spawned in large part by animal rights philosopher Peter Singer's The Great Ape Project, a 1994 declaration of the rights of chimpanzees, gorillas, and orangutans to equal core rights with humans, including life, liberty, and (setting the bar pretty fucking low on comparison to their hairless kin) the freedom from torture and abject imprisonment. The movement rests on a solid body of evidence—beyond the 98.7 percent genetic similarity between apes and man—showing that apes practice behaviors only recently believed to be exclusively human. Apes (and even birds) have demonstrated tool use, rudimentary spoken language and grammar, and, in a truly chilling potential precursor to a certain 1968 vision of the future, the ability to create 19,305 square mile common cultures, then fashion spears and patrol their territory, organize hunting parties, and wage war against different chimp cultures.
Going above and beyond all expectations or desires, chimps have also shown their ability to use currency— and then to use that currency for pornography, gambling, and prostitution. Questionable experiments by even more questionable psychologists have also shown they're able to partially integrate into human households and more than willing to get freaky with us after some exposure.
Symbolic thinking and abstract art, some believed, was the last real unique human feature we had going for us. Even though there are chimp artists, it's debatable whether they're just playing or not. But earlier this year the discovery of abstract art carved into a Neanderthal site at Gibralter—alongside earlier signs of pre-human burial, jewelry making, and face painting—took high art out of the strictly human realm. At a loss for something uniquely our own, it's beginning to feel like we might just be more persony than apes, although the border is squidgy.
Whether or not that fussiness makes its way into legal codes isn't just a matter of contemplative beard stroking. There's money on the line. Back in 2005 three paintings by Congo the Chimp, an artist praised by Salvador Dalí, Joan Miró, and Pablo Picasso, sold at auction for $26,000. Although Congo's long dead, similar sales in the future may inspire debate as to whether or not the artist has rights to the proceeds. And earlier this year photographer David Slater initiated legal action to claim ownership over a selfie taken in 2011 by a crested black macaque in Indonesia with his camera, raising questions about whether a primate can have intellectual property rights (the US copyright office says no). More importantly, Slater's arguments on the issue, if heeded, may set a precedent for treating animal artists as tools used by humans to create a marketable and profitable product, rather than as competent and creative beings.
For now, aside from the selective and restricted cases in the Balearic Islands and Brazil, the most progressive legal protection for apes is that proposed (but still pending) in the Spanish Parliament in 2008. This law would treat apes like unaccountable humans—humans, but not legal people—such as children or the mentally ill, in need of guardians. They could not be owned, like Tommy, but would have very restricted rights beyond that.
Why, with this six-year-old Spanish precedent and a host of smaller legal victories, chimpanzees like Tommy can't at least secure rights equal to unaccountable humans remains a huge question. It's more puzzling considering we're more than willing in this country to give a form of personhood to corporations that not even every human is entitled to. No one's saying we should set every chimp wild in the streets. But maybe this is a sign that we need to sit down and have a long think about the way we perceive the core of human nature through a legal lens.
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