Chattel or Child: The Liminal Status of Companion Animals in Society and Law
In the case of companion animals, the outmoded aspect of law most frequently cited is that their legal status as property is inconsistent with their current cultural status as quasi-family members. This is a compelling assertion that jibes with the intuitive sense and quotidian experience of animal advocates, who are more likely to associate with likeminded others whose companion animals are true family members and best friends. Further lending credence to this claim, the law is an inherently conservative social institution that tends to follow rather than lead social change.6 But how divergent are the laws that govern our treatment of companion animals from prevailing social norms?As the role of animals in society and the economy has evolved, and more recently, as scientific research has revealed more about animals’ cognitive abilities and social development, public sensibility has changed dramatically, often leaving outmoded law behind. As a result, lawyers worldwide have begun searching for innovative ways to make animals more visible to the law: strengthening and enacting new anti-cruelty statutes, improving basic protections, and, in some more radical cases, challenging animals’ property status itself in an effort to grant them fundamental rights.
2. The Legal Status of Companion Animals
On the one hand, opinion surveys and an emerging body of sociological literature suggest that our relationship with companion animals is vested with such meaning and significance that they have come to be regarded by many as ‘members of the family’. Consistent with this significance, animal welfare law is more stringent in protecting the interests of companion animals than it is for any other category of animal. On the other hand, significant numbers of companion animals are relinquished to animal shelters every year, where the fate of many, especially kittens and cats, is death. Although animal welfare law criminalises the abandonment of companion animals, it provides no sanction for the relinquishment of companion animals to animal shelters.
2.1. Animals as Property
2.2. Animal Cruelty Laws
3. Societal and Legal Trends: Companion Animals as Family
3.1. Financial Expenditures on Companion Animals
3.2. Companion Animal Loss and Grief
3.3. Domestic Violence and Animal Abuse
Complicating the issue is the fact that animals are considered property in all 50 states. If an abuser refuses to relinquish a pet and the pet is not listed on a temporary restraining order (TRO), police and even courts are often reluctant to get involved in what is usually considered a marital property dispute. As a result, abusers have been known to threaten to harm or kill a pet if a victim does not return to the home, or dismiss criminal charges or restraining orders against an abuser. In one such case, a woman suddenly left a domestic violence shelter after she received pictures of her husband cutting her dog’s ears off with garden shears. Another woman was forced to watch as her husband shot and killed her dog in front of her young son.
3.4. Companion Animal Custody
The very first question posed to me as a new member of the bar some twenty-six years ago was, “When a couple divorce, who gets custody of the dog?” Bewildered, I sought the advice of a more experienced attorney. She supposed that custody of the dog would be awarded to the individual who fed it, walked it, groomed it, took it to the veterinarian, and got up at 6:30 A.M. to let it out. In short, she described a primary caregiver test that, although not much articulated then, has come to be a force majeure in child custody cases. Her answer, though logical, was almost certainly incorrect. A deep divide separates the attitude of most families, who view pets as family members, from the law, which regards pets as chattels, not different in kind from household property such as a sofa or coffee cup. For years courts have successfully straddled this divide; however, the influx of pet ownership has shifted the issue of pet custody to the forefront.
While a dog may be considered by many to be a member of the family, under Florida law, animals are considered to be personal property. There is no authority which provides for a trial court to grant custody or visitation pertaining to personal property. While several states have given family pets special status within dissolution proceedings, we think such a course is unwise. Determinations as to custody and visitation lead to continuing enforcement and supervision problems (as evidenced by the proceedings in the instant case). Our courts are overwhelmed with the supervision of custody, visitation, and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals. While the trial judge was endeavoring to reach a fair solution under difficult circumstances, we must reverse the order relating to the custody of “Roddy,” and remand for the trial court to award the animal pursuant to the dictates of the equitable distribution statute.(quoted in Waisman et al. 2014, p. 552)
3.5. Tort Law and Valuation of Companion Animals in Wrongful Death
Labeling a dog “property” fails to describe the value human beings place upon the companionship that they enjoy with the dog. A companion dog is not a fungible item, equivalent to other items of personal property. A companion dog is not a living room sofa or dining room furniture. This term inadequately and inaccurately describes the relationship between a human and a dog … Nevertheless, the law characterizes the dog as personal property … to the extent this opinion uses the term “property” in describing how humans value the dogs they live with, it is done only as means of applying established legal doctrine to the facts of this case.(quoted in Waisman et al. 2014, pp. 171–72)
Another unintended consequence of expanding non-economic damages is the fact that human-animal relationships would be elevated above many human-human relationships, a truly bizarre result. Recovery for negligent infliction of emotional distress is generally limited to very close relationships, such as spouses, children, or parents … Grandparents, aunts, fiancés, and friends generally cannot recover emotional distress damages, regardless of how close these individuals were with the deceased. Expanding non-economic damages to the human-animal relationship would deem it to be more important than those human–human relationships.
The “floodgates of litigation” concern would seem to be addressed by past history in Hawaii, a jurisdiction unique in the fact that for approximately 16 years recovery of emotional distress damages for harm to property was permitted.… Throughout the entire 16 year period during which individuals could seek emotional distress damages for negligent harm to their companion animals … [there was one] single published case on the issue and there is no commentary in the literature regarding an onslaught of animal injury cases.
3.6. Wills and Trusts for Companion Animals
Under traditional trusts and estate law, a pet owner could do little to ensure that their animal would be provided for properly after the owner’s death. Those who did attempt to create some sort of “trust,” ran into legal problems because animals are considered a type of property and the pet could not legally be a beneficiary to a trust.
4. Countertrends: Companion Animals as Expendable
4.1. Family According to Whom?
It appears that in the minds of the Americans who responded to the survey, dogs are becoming more important as family members, particularly as children. Most recognize that this represents a change in attitude since nearly 60% believe that their dogs are currently more important in their lives than were the dogs that they had during their childhood days. Two out of three also feel that they are more caring and treat their pet dogs better than did their mother and father.
It is something you say. Everybody says it. “Pets are part of the family!” is a mantra of the media, the pet industry, and even the academic veterinary literature … So, I dug in a little and tried to track down where the “90% of pets are family” data came from. This sound bite—and that’s really all it is—comes from an online survey of 1200 pet owners, conducted by the American Pet Products Association—so, basically a marketing survey done on people who purchase pet products. This does not count as “data.”
4.2. Provisional Status as Family
What got me started thinking about this most recently was an ad I saw on the Portland Craigslist. I never go on the “pets” section of CL, but I was looking for something specific and while there I was surprised and depressed to see all the “free to good home” ads (surprised because for some reason I thought CL disallowed this type of listing, but apparently they only prohibit sales of animals). Out of curiosity, I clicked on a listing that advertised a free pair of Weimaraners. The ad showed a picture of two dogs, a mother and son, and contained a story about how the owner had fallen on rough times during the recent “economic storm” and could no longer keep these cherished family members. After a few paragraphs detailing the charms of the breed and of these two dogs in particular, the person giving her dogs away had the gall to list as a requirement that the new owner love them “unconditionally.” Holy shit—are you kidding me?
The other day, I was with my two dogs, Maya and Bella, at one my local parks. I was throwing the ball for Bella and letting Maya nibble on grass. Maya started barking at a woman walking past. I apologized for Maya’s rude behavior—she doesn’t always follow the conventions of human etiquette—and the woman was very nice and said “Don’t worry about it. I’m a dog person.” She went on to tell me about a Manchester Terrier she had had and how much she had adored the dog. She said that watching Bella chase reminded her of him; and she pressed her hands over her heart, in an “I love you” sign. And she told me and how her little terrier was obsessed with balls. He would stand at the top of the stairs and drop the ball and watch it bounce all the way down; then retrieve the ball and do it again. Then she said, “I got rid of him when I moved.” On the outside, I kept a poker face and said something trite like “That’s too bad.” And inside, I’m thinking to myself, WTF? This dog is part of your family and when you move you just get rid of him? Now, I know this sounds just as judgmental as hell, but seriously: what does “pets are family” really mean?
Pets are treated as loving and loved members of the family, very similar to small children. At the same time, long-term ethnographic research reveals that many loving relationships with animals do not endure: when life changes and unexpected situations pose obstacles to the human-animal love, the people involved may redefine or terminate it. Pets are treated as “flexible persons” or “emotional commodities”; they are loved and incorporated into human lives but can at any moment be demoted and moved outside of the home and the family.
4.3. Culture Shift or Cultural Myth? Animal Neglect and Commodification
Sure, some pets truly are woven into the lives of families, but Pierce is saying that when we hear the pets-as-family line over and over, we should recognize it for what it is: a hard corporate sell. As she puts it: “A gossamer pets-are-family thread has been woven over the ugliness.” What ugliness? According to Pierce: At least 30 percent of “family” dogs and cats never once visit a veterinarian; lonely animals are confined to tanks, cages or backyards; high rates of animal cancer occur owing to the poor quality of pet food; people have sex with animals, including at animal brothels, at shocking rates; the “euthanasia” deaths carried out at animal shelters often aren’t good deaths at all.(quoted in King 2016)
At the Thomas Beath Veterinary Clinic in Fredericksburg, Va., two-thirds of the pets put to sleep every week are euthanized for economic reasons, clinic owners say. “I’ve never seen as many people lining up to turn over pets,” says Kumpf, former executive director of the National Animal Control Association. “It’s heart-wrenching to see so many people come through the door.”
4.4. “No-Pets” Policies
5. The Legal Status of Companion Animals Enables their Treatment as Expendable
5.1. Beyond Property
At the same time, the fact that Maya is my property isn’t all bad. In practical terms, it is a good thing. It means no one can take her from me. As long as animals are considered property, they will not gain legal protection as “persons," but their status as property offers a tiny thread of protection.
5.2. Animals Deserve a Status That Reflects the Types of Beings They Are
A strong and rapidly growing database on animal sentience supports the acceptance of the fact that other animals are sentient beings. We know that individuals of a wide variety of species experience emotions ranging from joy and happiness to deep sadness, grief, and PTSD, along with empathy, jealousy and resentment.
After perfecting a training system, we sent out a call to local dog owners for volunteers for the study. Since 2012, we’ve trained and scanned a total of about 90 dogs. As a matter of principle, we never restrained or drugged any. If a dog wants to get up from the M.R.I. and leave, they can. There’s no compulsion.(quoted in Dreifus 2017)
Animal capital has nothing to do with knowing about animals to exploit them; it has to do with knowing about them to minimize their exploitation. It has to do with recognizing the intrinsic value of animals’ lives. It makes a qualitatively different relationship with animals possible ….
Animals provide information about their welfare in many ways. Some really do have some form of quasi-linguistic communication. For instance, whales have song and elephants have patterns of trumpeting. But that isn’t really the whole issue because in many ways—through their behavior and evidence of their delight, fear, and pain—animals are giving us information all the time even without anything like speech if we would stop, look, and interact with them.
For the animal shall not be measured by man. In a world older and more complete than ours they move finished and complete, gifted with extension of the senses we have lost or never attained, living by voices we shall never hear. They are not brethren, they are not underlings; they are other nations, caught with ourselves in the net of life and time, fellow prisoners of the splendor and travail of the earth.
5.3. Animals as Legal Dependents
Drawing on recent work in disability theory, we show that there are many ways for individuals with varying levels of cognitive ability to be treated as citizens and to exercise their citizenship, and that there is no reason why domesticated animals cannot be included within these more expansive ideas of citizenship.(p. 103)
As wholly passive and dependent on humans … located on the (literal and figural) margins of human society, having no claims regarding how the broader community governs itself and its public spaces. It treats domesticated animals as something like protected aliens or guests, who don’t really belong here, but whom we have a duty to treat humanely.(pp. 102–3)
Use of guardian gives rise to its counterpart “ward.” The ward is defined as the person for whose benefit the guardianship has been established. Wards have legal rights. Applying human guardianship law to animals would mean that animals have legal rights that can be recognized in court (i.e., animals would have legal standing).
Legal reforms to date have largely focused on acknowledging animals’ membership within private families, but … justice requires that [domestic animals] be recognized as members of the broader society and polity as well. To be fully recognized as a member of society would not just involve being treated as a member within private familial settings, but also being treated as a member of the public, with rights to public goods, public services and public spaces.(p. 145)
6. Policy Recommendations
There are two ways to increase the rate of a desirable social behavior: either augment the social forces that increase its prevalence or dampen those social forces that reduce its prevalence. In other words, sometimes the question is not what encourages people to do something, but rather what discourages them from doing it. Often, social reforms emphasize the former issue to the neglect of the latter.
The majority had given up their pets solely because they were moving. Most had relatively low income, were moving for employment reasons, and were renting their homes. Landlord restrictions were an important factor in relinquishment. High scores on the bonding scale and spontaneous expressions of discomfort and sorrow suggest that external pressures overrode attachment to the animal and the pain of relinquishment.
Knowledge about behavior, nutrition, health, history, training, and the variety of things that can enrich animals’ lives. I also include a rapport with animals based on an active interest on their emotions, communication, and cognition. In addition, animal capital means knowing how to find things out. This implies seeking out resources such as veterinarians, trainers, or behaviorists in case of behavioral or health problems.
They’ve been a huge hit, says Terra Spencer, a manager at Portland firm Leopold Ketel and Partners, which created the ads pro bono. “People have already written in—they want to know where they can buy posters, they want to know what we’re doing with the outdoor posters when we’re done.” Spencer says. “They want to hang them in their house” … The murals are intensely cute and devastatingly effective. Oregon’s animal adoptions are up 21.2 percent in the five years since the campaign began, which the Humane Society credits to the ads. Likewise, volunteerism at the OHS is up, says spokeswoman Barbara Baugnon, which she attributes to “the good will the campaign had generated.”
6.3. Emotional Support Animals
6.4. Workplace Policies
6.5. Choice and Consent
Many debates over the appropriate content of law are really debates over the statement that law makes, independent of its (direct) consequences … The expressive function of law has a great deal to do with the effects of law on prevailing social norms. Often law’s “statement” is designed to move norms in fresh directions.
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I will mostly refer to nonhuman animals as “animals” in the following discussion.
As of 2018, Millennials comprise the largest segment of companion animal owners at 72–73 percent (TD Ameritrade 2018, American Pet Products Association 2017–2018).
I use the terms “companion animal” and “pet” interchangeably in this article to reflect their common usage in law and culture.
Though some argue that animal cruelty laws constitute a weak form of rights (e.g., Sunstein 2003), outside of that narrow context and within the domain of the family, the human owner is the only party with appreciable rights, holding virtually absolute power to control every aspect of the companion animal’s life—within the very broad bounds of permissible conduct under cruelty laws.
See “Animals’ Legal Status” (Animal Legal Defense Fund n.d.a).
However, this is not always the case. For example, the Williams Institute found a dramatic drop in anti-gay attitudes in states that legalized marriage equality. Following changes in these laws, “47% of residents who initially were opposed changed their minds” (Flores and Barclay 2015). Other studies have found that smoking bans changed behavior and social norms (Satterlund et al. 2012; Orbell et al. 2009).
Animals have intrinsic worth and deserve basic legal protections regardless of their cultural status or value to humans. However, the focus of this article is on culture and the law, specifically: (1) the current gap between the legal and cultural perception of companion animals, (2) the fact that the cultural perception itself is not uniform but in a state of flux, and (3) the law’s role in enabling one or the other competing status to prevail. Since the relationship between social norms and the law is multi-directional, the cultural status that becomes ascendant will in turn affect companion animals’ treatment within the legal system.
And, in cases where there is ambiguity or room for interpretation, judges tend to make decisions based on dominant social norms and values (Liebman 2011).
Likewise, although some jurisdictions have passed legislation changing the status of pet owners to “guardians,” these resolutions are symbolic and have no legal bearing. For this reason, I also use the term “owner,” which is the way this relationship is characterized under the law.
Despite their legal status as property and the shortcomings of animal cruelty laws, companion animals are easily the most protected class of animals in society. Farmed animals are among the least. The majority of modern state animal cruelty laws expressly exempt either farmed animals or standard agricultural practices. These include “accepted,” “common,” “customary,” or “normal” farming practices, which are defined by the industry itself (Wolfson and Sullivan 2004). In addition to the limitations in current law, prosecutions for the abuse of farmed animals are vanishingly rare.
In addition to criminal laws to protect animals from cruelty, North Carolina (Chapter 19A) and Oregon (ORS 105.597) provide civil remedies that allow private citizens to sue to stop animal cruelty in limited instances.
Other legal scholars, while noting shortcomings in the law, believe animals receive sufficient benefits from human ownership that the property category should be retained, though it could be revised in a way to provide better legal protections for animals (Cupp 2016; Sunstein 2003; Favre 2000, 2010; Epstein 2002).
For more on this decision, including a link to the translated ruling in English, see the Nonhuman Rights Project’s media release, “The NhRP Praises Argentine Court’s Recognition of Captive Chimpanzee’s Legal Personhood and Rights:” https://www.nonhumanrights.org/media-center/12-5-16-media-release-nhrp-praises-argentine-court-on-legal-personhood-for-chimpanzee/.
Press Trust of India, “Animals are ‘legal persons’, all citizens their parents, orders Uttarakhand HC,” India Today 4 July 2018. https://www.indiatoday.in/india/story/animals-are-legal-persons-all-citizens-their-parents-orders-uttarakhand-hc-1277559-2018-07-04.
For an overview of decisions regarding river personhood and the legal rights of nature, see “Creating legal rights for rivers: lessons from Australia, New Zealand, and India” (O’Donnell and Talbot-Jones 2018. Ecology and Society 23(1):7)) and “Rights of Nature: Rivers That Can Stand in Court” (Cano Pecharroman 2018. Resources. 7(13)). In the U.S., on 26 February 2019, voters in Toledo, Ohio, approved a ballot measure to give legal rights to Lake Eerie, which would theoretically give the lake standing so that people could sue polluters on its behalf. The following day, a farmer filed a federal lawsuit challenging its constitutionality (Williams 2019). The new legislation, dubbed the Lake Eerie Bill of Rights, would establish “irrevocable rights for the Lake Erie Ecosystem to exist, flourish and naturally evolve, a right to a healthy environment for the residents of Toledo, and which elevates the rights of the community and its natural environment over powers claimed by certain corporations.”
While animal cruelty laws differentiate animals from inanimate property in the legal system, it is interesting to note that property protection was one of the purposes of early versions of many animal cruelty statues, “which only criminalized conduct if it was directed at animals owned by others—it was not illegal to commit the same acts upon one’s own animals or wild animals.” Animal cruelty laws also have historically served as a type of “moral legislation,” enforcing a code of behavior that says certain behaviors are immoral or socially unacceptable (Waisman et al. 2014, p. 71), rather than being motivated by concern for the animal him or herself.
Organized efforts to protect children gained momentum during this time as well. Bergh also founded the first organization dedicated to child welfare, the New York Society for the Prevention of Cruelty to Children, eight years after he founded the ASPCA.
Not all animal advocates believe that enhanced criminal penalties and increased enforcement are positive trends. In Beyond Cages: Animal Law and Criminal Punishment (2019), law professor Justin Marceau argues that the animal protection movement’s focus on “carceral animal law” has placed it at odds with other social justice movements, and that this focus may be detrimental to both humans and animals.
Though this narrative has had an impact on policy, and there is a correlation between animal abuse and other violent crimes, the available data does not support a predictive causal relationship (Marceau 2019).
For a discussion of the inherent speciesism of the discipline of victimology and suggestions for ways its theory and practice could be extended to include nonhuman suffering, see Flynn and Hall (2017). In two recent cases, State v. Nix and State v. Fessenden, the Oregon Supreme Court found that animals can be victims of a crime (Animal Legal Defense Fund 2014). In the former, the court rejected the defense’s argument that property, which animals are under Oregon law, cannot be seen as crime victims (instead, the public or the owner would be the victim).
The Nonhuman Rights Project has in recent years mounted unique habeas corpus challenges on behalf of four chimpanzees and three elephants: “The world’s first habeas corpus hearing on behalf of an elephant and the second habeas corpus hearing on behalf of a nonhuman animal in the US … argued that Happy [an elephant], as an autonomous being, is a legal person with the fundamental right to bodily liberty protected by a common law writ of habeas corpus” (Choplin 2018). In 2018, the Animal Legal Defense Fund filed a unique lawsuit in Oregon on behalf of a severely neglected horse named Justice: “What makes this lawsuit unusual is that Justice [a horse] is named as the plaintiff … If successful, this would be the first case to establish that animals have a right to sue their abusers” (Pallotta 2018a). And in 2012, People for the Ethical Treatment of Animals filed a lawsuit (ultimately unsuccessful) on behalf of five orcas against Seaworld for enslaving the orcas in violation of the Thirteenth Amendment of the U.S. Constitution, arguing the amendment’s protections can extend to nonhuman animals (Kerr et al. 2013).
While spending may also have increased over time for inanimate objects such as houses and cars, and their associated maintenance, expenditures on companion animals tend to go toward enhancing their well-being rather than their utility (since the vast majority of companion animals are not working animals).
Included in this figure are live purchases of pets themselves, so the data does not indicate expenditures exclusively for an animals’ well-being. The categories used by the APPA include (listed from highest to lowest expenditures for dogs) in 2017: Food; Supplies/OTC Medicine; Vet Care; Live Animal Purchases; and Other Pet Services, which include grooming and boarding (https://www.americanpetproducts.org/press_industrytrends.asp).
See “How the Rich Pamper Their Pets” (Mann 2008) http://www.forbes.com/2008/01/14/pets-pampering-celebs-oped-cx_pma_0115pets.html; “For Owners, It’s More Than Puppy Love” (Warren 2010) https://www.chicagotribune.com/lifestyles/ct-xpm-2010-04-29-sc-fash-0429-ellen-pet-shopping-column-story.html; “Pet ‘Parents’ Pamper to the Extreme” (Benbow 2013): https://www.usatoday.com/story/news/nation/2013/07/21/pet-parents-pamper-to-the-extreme/2572021/.
While they are the most common companion animals, dogs and cats also are typically included in the legal definition of “pet” or “companion animal,” whereas other species included in that category vary by state and locality (as does which animals are included in the legal definition of “animal” itself). However, many other species are kept as companion animals. For a discussion of inherent challenges to the well-being of specific species kept as pets, see Run, Spot, Run: The Ethics of Keeping Pets (Pierce 2016.)
“These 4 Charts Explain Exactly How Americans Spend $52 Billion on Our Pets in a Year” (Thompson 2013): http://www.theatlantic.com/business/archive/2013/02/these-4-charts-explain-exactly-how-americans-spend-52-billion-on-our-pets-in-a-year/273446/.
“The Dog Maxed Out My Credit Card” (Bounds 2011), available online: http://www.wsj.com/articles/SB10001424052970204394804577011824160591082; “Who Suffers Most from the Rising Cost of Veterinary Care?” (Dale 2013): http://veterinarybusiness.dvm360.com/who-suffers-most-rising-cost-veterinary-care.
“The Problem of Pampered Pets” (Berger 2012): http://www.seattlemag.com/article/problem-pampered-pets; “When Nothing is Too Fancy for Fido” (Griggs 2013): http://www.cnn.com/2013/04/15/living/pampered-pets/.
“After Meals on Wheels volunteers noticed a growing number of clients giving their food away to their furry friends, they started working with shelters and other pet groups to add free pet food to their meal deliveries.” (Associated Press 2013, “Meals on Wheels helps feed pets of seniors, disabled.” CBS News, 25 December 2013.)
This is communicated through dismissive phrases like “it’s only an animal.”
While this has been the general trend, there are still areas in which the loss of a companion animal may be socially unrecognized. For example, workplace bereavement policies that include companion animals are uncommon, and support or acknowledgement from friends and family may be lacking. Public rituals such as funerals are also less normative, though some do hold ceremonies celebrating the life of a companion animal and mourning their death. For a general discussion of this subject, see Mourning Animals: Rituals and Practices Surrounding Animal Deaths (DeMello 2016). A cultural deficit with regard to mourning and death in the U.S. is not limited to companion animals, though it is starker here. Some have noted that upon the death of a close human family member, Americans are often allowed to take only a week or two off work (or in some cases, just a few days), with the fact that the person is still grieving often left unacknowledged by others outside a very short period of expected mourning (Noel and Blair 2000).
H.R.909—Pet and Women Safety Act of 2017—115th Congress (2017–2018).
See “Table of Veterinary Reporting Requirement and Immunity Laws” (Wisch 2017): https://www.animallaw.info/topic/table-veterinary-reporting-requirement-and-immunity-laws).
It is again worth noting, the vast majority of these cruelty laws apply only to animals defined as companions. The same acts that would be considered torture, abuse, or neglect in the case of a companion animal would usually not be prosecuted—or in most cases even deemed illegal—if done to a farmed animal.
Glamour Magazine recently ran a series about millennial divorce, which included the article, “Your Marriage Is Over—Who Gets Custody of the Pets?” (Warnke 2018).
For example, in the case In the Matter of Lillian Kline, no. A-1788-95T5 (N.J. Super. Ct. App. Div. 12 July 1996), a service dog’s owner was permitted recovery under New Jersey’s crime victim compensation law although it was her service dog and not herself who was attacked by teenagers throwing stones; Ms. Kline was not injured and in fact witnessed the attack from inside her home. In allowing recovery, the court concluded “in view of the function of the dog as a veritable extension of the appellant’s own body, an injury to the dog is tantamount to an injury to the appellant’s person.” The court went on to analogize a trained service dog to an artificial limb (Waisman et al. 2014, pp. 525–26).
“Years later, as part of sweeping tort reform prompted by the numerous property damage claims after a hurricane, the state legislature statutorily abolished emotional distress claims arising solely from damage to property” (Frasch et al. 2011, p. 111).
In addition, despite the unique and nontraditional characteristics of pet trusts, they have earned widespread acceptance and been adopted relatively quickly compared to other novel types of trusts (Vokolek 2008).
The National Animal Interest Alliance is an industry-funded lobbying organization for animal commerce and agribusiness based in Portland, Oregon. Board members “representing breeding, agribusiness, hunting, horse racing, rodeos, circuses and vivisection industries appear to be so concerned about ‘animal rights extremism’ that virtually any attempt at humane advocacy falls neatly into this category” (The Center for Media & Democracy 2011, https://www.sourcewatch.org/index.php/National_Animal_Interest_Alliance).
An obvious parallel with humans in the family comes to mind. It is certainly not the case that all human family members are treated well, so bestowing care and respect is not a necessary prerequisite for a sincere attribution of family status. Vulnerable members of the family such as children are particularly susceptible to maltreatment. But whether society recognizes certain behaviors as abuse when it comes to animals—e.g., less obvious forms of neglect and lack of consideration for animals’ needs versus overt acts of cruelty—is another question.
Approximately 1.5 million (or 23 percent) of the 6.5 million dogs and cat who enter shelters in the U.S. are killed (ASPCA n.d.).
I use “practical autonomy” to distinguish between the capacity for autonomy (which companion animals possess) and the ability to exercise it in a meaningful way (which they are generally denied).
This is not to suggest that animals cannot have agency. My point is that they lack practical autonomy, which is to say the barriers in human society to companion and captive animals exercising their agency to any significant degree are so many and so total as to render the concept essentially meaningless. However, although their efforts are almost always thwarted by those in power (i.e., any human in the situation), animals do resist. For more on this issue, see Fear of the Animal Planet: The Hidden History of Animal Resistance (Hribal 2010) and “Animals Without Borders: Farmed Animal Resistance in New York” (Colling 2014).
See “Animal Neglect Facts: State and Local Law” (Animal Legal Defense Fund n.d.d).
While the discussion here has been mostly limited to dogs and cats, other species of animals are bought and sold as pets, and they most likely suffer even more. According to Pierce: “When kept alone in a small cage, birds, small mammals like hamsters and gerbils, and even fish lack adequate physical, mental, and social stimulation. Solitary confinement of human prisoners is considered a violation of basic human rights, yet this is essentially what we do to some of our pet animals” (quoted in King 2016).
Precise data is difficult to obtain, but some sources say approximately 670,000 dogs and 860,000 cats are put to death in shelters annually (American Society for the Prevention of Cruelty to Animals n.d.). Other estimates place that number higher, and calculate that 2.7 million of the 7.6 million animals who enter shelters annually in the U.S. are killed (Fox 2014).
A growing number of jurisdictions, including two states as of 2019 (Maryland and California), have enacted laws banning the retail sale of dogs and cats, which mandate that any animals sold in pet stores come from rescue agencies. The impetus for these laws is to combat puppy and kitten mills, and they still allow people to purchase animals from individual breeders. Even without retail sales bans, cities like Portland, San Francisco, New York City, and many others have made tremendous strides in reducing the killing of healthy, adoptable animals in shelter facilities. See https://www.sfspca.org/who-we-are/successes (San Francisco—93% live release rate); http://www.oregonhumane.org/resources-publications/end-petlessness-more/ (Portland—98% adoption rate; one of the best in the nation); http://www.nytimes.com/2016/01/21/nyregion/animal-adoptions-rise-amid-reforms-at-new-yorks-shelters.html (New York City—euthanasia rate is not as low as the former two cities but has drastically improved).
Hurricane Katrina, which devastated the Gulf Coast and especially the city of New Orleans in 2005, was a tragic background against which the tension between animals as family and animals as property was highlighted. During the storm, companion animals were not allowed on most rescue vehicles or in shelters. When ordered to leave their companion animals behind, many residents refused to evacuate. One survey found that 44 percent of the storm’s human victims who chose not to evacuate did so because they were unwilling to abandon their animals (Fritz Institute 2006). Other residents were forcibly separated from their companion animals—some at gunpoint—by emergency responders.
This does not apply to designated service animals, who are allowed broad access to public spaces and other accommodations under the federal Americans with Disabilities Act, and are defined differently under the law than family pets.
Not all of these animals received new homes. The study’s authors defined “re-home” broadly and included relinquishment to shelters.
This applies mostly to medium- and large-sized dogs, since small dogs and cats are permitted if they are in a carrier that fits on the caregiver’s lap.
This applies specifically to dogs, since most cats have neither the need nor desire to accompany their caregivers around town. However, cats have separate and significant welfare issues associated with whether they are kept as “outdoor” or “indoor” cats.
This is by no means to suggest that affluent individuals take better care of their companion animals, but merely to acknowledge that socioeconomic barriers to responsible animal guardianship exist. Housing and transportation are two basic human necessities, and having to rely on public transit or rent a home with nonhuman family members significantly restricts available options due to existing social policies.
Animal protection laws could also be “amended to grant a private cause of action against those who violate them, so as to allow private claimants, either human beings or animals, to supplement currently weak agency enforcement efforts” (Sunstein 2000, p. 1336).
This is not to suggest that animals are cognitively impaired, but they obviously do not understand human social institutions like the legal system, and cannot speak in the language of the court. Therefore, surrogacy is required.
Connecticut’s so-called Desmond’s Law comes close, but allows court-appointed advocates to represent the interests of “justice” in animal cruelty cases, not the animals themselves (Pallotta 2017a).
Property status, rather than being construed as the underlying problem, can also be considered a symptom of the fact that most people and institutions are unwilling or unready to commit to taking the claims of animals seriously. This lack of readiness is manifest in the still-viable social construction of animals as expendable. While property status arose from dominant beliefs and practices, once it was codified into law, this understanding of animals became reified. The symptom and the problem are now essentially the same; property classification in the law has a circular ossifying effect on the culture, mutually reinforcing this understanding and making it harder to change.
In confronting the slippery slope, sentience, or the ability to feel or perceive, seems like a rational and reasonably low bar. For animals about whom we are not sure, we can give the benefit of the doubt in our daily interactions, but the law can use current scientific knowledge as its basis, with updates via legislation and the common law as needed—as happens in the case of new scientific findings about humans. For example, in 2005 the U.S. Supreme Court ruled that the death penalty for juveniles is unconstitutional in light of recent research on brain development. For a summary of this research, see the amicus brief submitted in this case by the American Psychological Association: https://www.apa.org/about/offices/ogc/amicus/roper.pdf.
The concept of owner is “technically accurate, but many find it morally offensive and believe that taking ownership over another living being is an act of violence” (Pierce 2016, p. 214).
As noted above, some animal law experts would disagree that because her dog is property, she cannot also be a person.
Sentience has been defined as the capacity of animals to experience pleasurable states such as joy and aversive states such as pain and fear (Broom 2007). For an overview of research regarding animal sentience and its importance to animal welfare science and the animal protection movement, see “Searching for Animal Sentience: A Systematic Review of the Scientific Literature” (Proctor et al. 2013) and “Animal Sentience: Where are We and Where are We Heading?” (Proctor 2012), both published in the journal Animals. As pointed out in these articles, knowledge of vertebrate sentience is much more developed than invertebrates. However, while limited, research on invertebrate sentience is increasing.
For an overview of constitutional animal protection provisions, see Jessica Eisen and Kristen Stilt’s entry, “Protection and Status of Animals,” in the Max Planck Encyclopedia of Comparative Constitutional Law (Eisen and Stilt 2016). Eisen (2017) cautions against overstating the extent to which the emergence of such provisions represents a sea change in constitutional priorities because human interests remain significant, if not dominant (p. 918). However, she views them as a positive step, noting that “despite the persistence of human-centric concerns in constitutional animal protection jurisprudence, the lived experiences of animals themselves are now recognized as constitutionally significant in a number of diverse jurisdictions” (p. 922).
Courts in a recent trio of important Oregon cases also relied on sentience to focus on the distinction between animals and all other kinds of legally defined property, “revealing a jurisprudence that approaches the legal status of animals critically, rejecting absolutist constructs that insist animals must either be situated analogous to any other property or analogous to humans” (Dunn and Rosengard 2017, p. 451).
Bolliger (2015) notes that, in the case of Switzerland, which added protection of animal dignity to its constitution in 1992 and enshrined this principle in its federal Animal Welfare Act in 2008, this constitutional provision is unique in the world and a milestone for animal welfare. However, “despite the far-reaching conceptual reorganization of Swiss animal law, no essential change in the human-animal relationship has been observed in practice. To the contrary, in many cases animals still are exploited in ways that are hardly consistent with respect for their dignity” (p. 314). France’s 2015 law, which updated its civil code to align with its penal and rural codes (which already recognized animals as sentient beings), shifted animals from “moveable property” to “beings gifted with sentience,” but did not specify additional legal protections, raising doubts about its practical impact (Garric 2014). However, DiConcetto (2016) writes, “the amendment to the Civil Code is more than just a symbolic victory: it is in fact an important step that opens the door to more change in the way animals are and will be approached under French law … It is now up to the courts to give a meaningful interpretation of section 515-14 of the Civil Code, and to confirm that animals are non-property. Under French law, which has only two categories [persons and things], the autonomous category of animals as non-things might be the corner stone of an animal personhood yet to be built through case law.” Likewise, Neumann (2015) notes, “the change is not a revolution for sure, but the change may allow further developments in the law and, therefore, can be considered as paving the way for an evolution of the status of animals in French law in the next coming decades. As such, it can be considered as a highly ‘symbolic move’ which should be warmly welcomed” (p. 13).
Interestingly, Donald Griffin’s influential The Question of Animal Awareness (1976) was published one year after Peter Singer’s Animal Liberation (1975), which is frequently credited for igniting the modern animal rights movement.
An excellent example of this style of research is Alexandra Horowitz’s 2009 bestseller Inside of a Dog: What Dogs, See Smell, and Know. And Marc Bekoff and Jessica Pierce’s 2019 book Unleashing Your Dog: A Field Guide to Giving Your Canine Companion the Best Life Possible synthesizes the available research about dogs into an advocacy guide to encourage guardians to better understand and enhance their dogs’ experiences in a human-centered world.
In addition to the emphasis on animals’ negative experiences such as pain and suffering, some have noted that animal rights theory has focused narrowly on the negative rights of animals (e.g., “the right not to be owned, killed, confined, tortured, or separated from one’s family”) but says little about the positive obligations we may owe them (Donaldson and Kymlicka 2011, pp. 5–6).
Additionally, while slippery slope arguments tend to be facile, the question regarding sentience as a baseline for enhanced legal protections is an interesting one when it comes to animals other than mammals, birds, and fishes and other aquatic animals, such as cephalopods, whom science has shown to be sentient. While research in this area continues apace, there is much that is still unknown about certain types of invertebrates, the broad category that includes insects (which comprise a significant percentage of known animal species worldwide).
Or would we? Some argue that human intervention to alleviate wild animal suffering is an ethical obligation, in contrast to the idealized view that anything associated with the “natural world” is inherently good (sometimes called the nature fallacy) and must therefore be left alone (Effective Altruism Foundation 2017; Tomasik 2009).
Though even in the case of wild animals, this idea is utopian on practical terms and not remotely on the political horizon for myriad reasons that are beyond the scope of this paper to discuss.
Redefining animals as “legal dependents” would also include redefining their owners as “legal guardians.” As mentioned above, there are some jurisdictions that have passed ordinances proclaiming support for the word “guardian” over “owner,” but these laws have thus far been merely symbolic.
Legal duties could include providing opportunities for physical exercise and social interaction/companionship, for example.
This study found that “many people wanted to keep their dogs and had clear ideas of what could have helped. Many ideas provided by the respondents, such as temporary pet-friendly housing or boarding, or financial help for dog costs, such as veterinary care or training, could be addressed with targeted programs or services” (Weiss et al. 2014, p. 424).
For a discussion of access and other policy issues that specifically affect companion animals with disabilities and their caregivers, see “Reframing Companion Animal Disability Using the Social Model: Removing Barriers and Facilitating Care” (Pallotta 2019).
For example, the website of veterinarian Sophia Yin has a host of educational resources, such as this poster that explains through colorful illustrations the right and wrong ways to approach a dog: https://drsophiayin.com/app//uploads/2017/08/How-to-Greet-a-Dog-Poster.pdf. Posters are also available on how children should and should not interact with dogs, the body language of feline anxiety, and the body language of fear in dogs. Information like this could be presented via radio or television PSAs, or through print advertisements or posters prominently displayed in key community locations.
Currently, a letter from a medical professional stating an animal is an ESA for a verifiable disability allows the owner to claim a “reasonable accommodation” under the Fair Housing Amendments Act (to obtain access to rental housing) and the Air Carrier Access Act (to be able to fly with their animal in an airplane cabin), but does not allow the broad access to public spaces afforded to designated service animals under the ADA. Unlike ESAs, where the mere presence of the animal is considered therapeutic and no special training is necessary, ADA service animals are required to have special training to perform a specific task.
Though this study also found that, “despite the media’s focus on abuses and false representation of these dogs, most participants reported feeling the majority of people are not taking advantage of the system” (p. 642).
ESAs are currently only covered under the federal Fair Housing Act and Air Carrier Access Act, meaning those who have a doctor’s note stating their companion animal’s presence provides a therapeutic benefit for an emotional disability are allowed to have them in rental housing that otherwise prohibits pets and to have their animal in the cabin on flights that otherwise prohibit animals over a certain size. Although ESAs are not granted the broad access to public accommodations that ADA service animals are, this is not well-known. Furthermore, websites selling doctor’s notes and fake service/support animal vests have proliferated, with the public and business owners often not knowing the difference.
The National Institute of Mental Health estimates that one in five adults live with mental illness. (https://www.nimh.nih.gov/health/statistics/mental-illness.shtml).
“Records show that across all airlines from 2015 through 2017, there were 151 animal-related incidents—85 deaths, 62 injuries, and four lost animals” (Rocheleau 2018). Even when animals arrive relatively unscathed, being transported as luggage in the cargo hold of an airplane is, as one can imagine, stressful: “Conditions in the cargo hold of commercial jets are not always friendly; temperatures can fluctuate wildly, noise can be tremendous and air pressure can drop significantly, and pets that are checked into this dark space beneath the passenger cabin sometimes die. In 2011, thirty-five pets died while (or shortly before or after) traveling on commercial flights with U.S. airline companies. Nine animals were injured and two lost entirely. And in 2012, 29 pets died, 26 were injured and one was lost” (Bland 2013). In 2015, in response to a rulemaking petition by the Animal Legal Defense Fund, the Department of Transportation expanded its reporting requirements for airlines regarding the loss, injury, or death of companion animals. See “U.S. Department of Transportation Expands Air Carrier Reporting Requirements for Incidents Involving Animals During Air Transport,” https://www.transportation.gov/briefing-room/us-department-transportation-expands-air-carrier-reporting-requirements-incidents; see the Animal Legal Defense Fund’s petition here: https://www.regulations.gov/document?D=DOT-OST-2010-0211-0001). For an overview of reasons why animals die in transport, see also “Dying in the Cargo Hold: Is There an Acceptable Level of Loss in Animal Air Transport?” http://doglawreporter.blogspot.com/2012/12/dying-in-cargo-hold-is-there-acceptable.html.
There are also ethical issues pertaining to service animals in general—in contrast to emotional support animals, who are in essence the same as family pets since they are not trained to perform specific tasks and thus are theoretically allowed greater agency—but that discussion is also beyond the scope of this article.
However, a parallel movement has emerged in recent years to teach children about consent and bodily autonomy (no more forced hugs!), so cultural awareness around this issue will likely only increase. See Theriault, Anne. “It’s never too early to teach children about consent and boundaries.” Washington Post. February 13, 2015. Accessed on 9 March 2019. https://www.washingtonpost.com/news/parenting/wp/2015/02/13/its-never-too-early-to-teach-children-about-consent-and-boundaries/?utm_term=.599ab9d92c32.
The Microsanctuary Resource Center articulates animal subjectivity and choice as one of its core principles: “A resident should never be presented as an object for human touching, and any resident who is shy or does not want to be touched/held/hugged/etc. should be treated appropriately” (https://microsanctuary.org/2018/08/20/core-principles/).
As Horowitz (2009) writes:
It is helpful to think of training in this context—i.e., as a practical necessity in a human-centric world rather than as a means of domination and control, akin to teaching children manners and social norms to ease their experience of being in society. Clarifying expectations and boundaries aids in safety and social adjustment, for both children and companion animals. In this sense, the training of companion animals can be conceptualized more as socialization and should focus on imparting behaviors they need to flourish in society.
Even when I cannot honor it, I stop and acknowledge her desire to go down that street, or to that place, but say “sorry, we can’t go there right now” and gently coax her (never yank!) along the alternate route.
I realize anyone who lives with a more headstrong dog (as I have in the past) will find this description of subtle cues laughable—but Teagan is a well-mannered and relatively reserved dog, and her communication style is generally low-key.
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Pallotta, N.R. Chattel or Child: The Liminal Status of Companion Animals in Society and Law. Soc. Sci. 2019, 8, 158. https://doi.org/10.3390/socsci8050158
Pallotta NR. Chattel or Child: The Liminal Status of Companion Animals in Society and Law. Social Sciences. 2019; 8(5):158. https://doi.org/10.3390/socsci8050158Chicago/Turabian Style
Pallotta, Nicole R. 2019. "Chattel or Child: The Liminal Status of Companion Animals in Society and Law" Social Sciences 8, no. 5: 158. https://doi.org/10.3390/socsci8050158