Animal Legal Reports
Philadelphia, PA American Veterinary Medical
Association Wednesday, July 28, 2004
Sentient property: a novel
proposal for animal law
More than property, less than persons
The nation's legal definition of
companion animals is antiquated and out of step with society's growing affection
for their four-legged friends. Attorney Carolyn B. Matlack says it's time for a
Matlack offers a sentient
property proposal as a balanced compromise about the legal status of pets. The
concept defines animals as living, feeling companions but without the rights and
liberties people enjoy.
It is a compassionate way in
which courts can recognize that animals have feelings and emotions, rather than
merely being property like a chair or table, Matlack said.
The Davidson, N.C., lawyer
introduced her idea during the American Veterinary Medical Law Association
meeting Sunday at the Doubletree Hotel Philadelphia. Matlack is president and
managing editor of Animal Legal Report Services, a bulletin on trends in animal
law for the veterinary profession.
In America 's common law
tradition, animals are a form of personal property. The classification was
designed to prevent people from stealing animals, Matlack explained, and added
that the first anticruelty statutes appeared around the time of the Civil War. Such was the extent of animal
law in the United States for more than 100 years. But that's all changed.
Today, animal rights and humane
groups proliferate. Animal welfare legislation abounds. Pet owners in many
cities consider themselves pet guardians. Law schools offer courses in animal
law. Extremists threaten biomedical researchers and vandalize laboratories of
those who use animals in experiments.
Many pet owners think of their
Boxer dog or tabby cat as a member of the family. Clearly, society no longer
values animals for their usefulness alone. And yet, the legal status of animals
remains unchanged. "We're living in an 'Animal
Planet' world but with horse-and-buggy laws," Matlack quipped.
As further proof, Matlack
presented raw data on the number of malpractice lawsuits filed against
veterinarians. From 1945 to now, the total number of reported legal decisions is
1,798, she said. After 1979 the numbers climbed
sharply. From 1999 until the present, 305 suits against veterinarians were
filed-almost a 17 percent increase.
Matlack doesn't expect
veterinarians will face the same number of malpractice suits as human physicians
currently do. But the willingness to sue veterinarians for a perceived harm to a
pet is additional evidence that animals have become an important part of
people's lives. And the courts are looking for
direction because their only guidelines are previous judgments based on outdated
case law, said Matlack, who believes a new sentient property status is a good
place to begin.
Sentient property, she said, is
defined as any warm blooded, domesticated nonhuman animal dependent on one or
more humans for food, shelter, veterinary care, or compassion and typically kept
in or near the household of its owner, guardian, or keeper. Farm animals and animals
regulated by the federal Animal Welfare Act cannot receive sentient property
status. Matlack explained that sentience
is responsive to, or conscious of, sense impressions, feelings, or sensation.
Ethicist Peter Singer applied
the concept of sentience to animals in "Animal Liberation" first published in
1975-a date many say is the advent of the animal rights movement in America .
Singer used sentience to argue
that particular nonhuman animal species clearly experience pain and pleasure in
the same way humans do. Therefore, society cannot morally justify practices that
subject those animals to pain and distress. Singer was most critical of the
factory farming industry.
Singer went on to say that great
apes, chimpanzees, and other animals close to humans on the evolutionary ladder
are entitled to certain legal rights.
Matlack is far more conservative
in her use of sentience and is not a proponent of animal rights. In fact, animal
rights activists dislike her sentient property proposal because animals are
still classified as property rather than persons, she said. Sentient property is based on
the legal doctrine of substituted judgment. This rule, Matlack said, allows an
individual to make a decision about medical treatment on behalf of a person
unable to make that choice, such as a child or an elderly person.
Before a pet is considered as
sentient property, it must meet three standards, or the Teddy Law, named for
Matlack's deceased collie dog.
First, the animal owner needs to
redress harm that caused pain and suffering or emotional distress for the
animal. Next, the animal owner needs to redress harm for personal pain and
suffering or emotional distress attributable to loss of or harm to the animal.
And finally, the interests of the animal are weighed in light of the greater
good of society.
Matlack said several
veterinarians and lawyers have endorsed her proposal. Notably, the Texas 3rd
Court of Appeals Texas cited sentient property to uphold a $47,000 ruling
against PETCO in April. Carol Schuster of Austin sued
the company when her 14-month-old miniature schnauzer, Licorice, was found dead
four days after a visit to the pet store for grooming. The dog ran away from a
store employee and was hit by a car. Matlack herself leveled the most
obvious criticism of the sentient property status: Which animals are sentient?
Do earthworms hurt? Can paramecium feel pleasure?
Determining which animals
qualify as sentient property will be a major point of contention in the courts,
she acknowledged. That is the reason veterinarians and lawyers must help define
Matlack readily acknowledges
that her proposal does not answer every legal question, nor will it ever. But
those questions must not be allowed to delay the process, she said. "This is a start. This is only
the introduction of a phrase," Matlack said.
She hopes her sentient property
concept will generate discussion that will ultimate lead to a legal compromise
between the property-personhood debate. "There's no way we can answer every
question," Matlack said. "But here is a phrase we can run with; it's a
Sentient property is explained
in greater detail in Matlack's forthcoming book, "We've got feelings too!"
and societal attitudes toward animals have shifted. People are questioning
our prolific use of animals for personal wants and preservation of the human
species. Yet, government, industry, and corporations use their
considerable powers to maintain the status quo. Despite the resistance, we
are seeing a different world. The Internet is of great benefit.
Animal law is a growing
Michelle Lore - The Minnesota Lawyer
(Minneapolis, MN) August 29, 2005
With dogged determination, ferocious drive and a
little horse sense, animal-law attorneys have dug out an attractive practice
The Minnesota State Bar Association (MSBA) two years
ago approved the creation of an Animal Law Committee, granting it section status
a year later. Last year, the American Bar Association (ABA) followed suit,
establishing an Animal Law Committee as part of its Tort Trial and Insurance
Practice (TIPS) Section. Four dozen law schools across the country are now
offering courses in animal law - and at least 41 states have passed
animal-related criminal felony bills, compared to less than a dozen a decade
Attorneys who regularly practice in animal law are
pleased to see the increasing attention paid to animal-related issues, and
remain convinced that the practice area will continue to expand over the coming
"It's a growing area," said Edina attorney Katherine
C. Bloomquist, who chairs the MSBA's Animal Law Section. "There has been much
more attention on animal law in the last few years than I've seen in the last 15
Fridley attorney Barbara J. Gislason, who chairs the
ABA's Animal Law Committee, agreed. "The status of animals in our legal system
is in flux and attorneys are discovering creative and interesting ways to use
legal arguments in the face of increasingly complex scenarios," she said.
A new committee
At the time the MSBA elevated the Animal Law
Committee to section status in June 2004, the bar group was only the sixth state
in the country to make animal law an integral part of its association.
Gislason was instrumental in getting the committee
off the ground and served as its first chair. She was also the impetus behind
the ABA's adoption of an Animal Law Committee last year. "I see myself as a pioneer," Gislason recently told
Minnesota Lawyer. "I am bringing attention to an emerging practice area."
Like the MSBA Animal Law Section, the ABA's Animal
Law Committee (ALC) examines the current state of the law and animal-related
issues. Its mission is to evolve the thinking on animal issues across the
country and the world, and to examine animal-related problems. (See sidebar.)
In an open letter to the ALC, Gislason notes that the
public interest in animals is steadily increasing. Proof of the interest in
animals and animal-related issues lies in the fact that there are 65 million
indoor pets in the United States, most states have passed animal related
criminal felony legislation and animal law courses are becoming common in law
schools across the country. "It's growing every month," Gislason observed.
A broad area
St. Paul attorney Corwin Kruse, who taught a course
on animal law at William Mitchell College of Law last semester and currently
serves as vice chair of the MSBA's Animal Law Section, pointed out that animal
law covers elements of torts, contracts, intellectual property and criminal law.
"Any area of law can have an animal law component to it," he said.
Bloomquist, who handles many equine law cases in
particular, added that animal law as a practice area includes topics like animal
rights, animal welfare and pet ownership issues.
According to Gislason, animal law, when broken down
into its component parts, has long been the subject of the rule of law all over
the world. "Orderly societies have wanted answers to questions like: who pays
when an animal damages property or bites, where is it allowed to be, when and
how can it be killed, how are risks managed, what constitutes a sale, what is
the difference between lying and puffing, and under what circumstances will the
treatment of an animal by a human be circumscribed," Gislason wrote in the
letter to the ALC.
In addition to the already recognized practice area
of equine law, specific issues falling into the area of animal law include:
* the legality of estate planning for companion
* the changing liability standards and insurance coverage in dog bite and other
* compensation beyond fair market value when an animal is killed;
* public and private conflicts about where an animal may be kept; and
* the competing interests of wild animals and urban, farming and recreational
Because animal law is so broad and encompasses so
many different areas, most people who practice in animal law today do it as part
of a more general practice. According to Corwin, however, that may change. "As the field grows, there will be more opportunities
for people who want to do just this sort of thing," he said.
Gislason refers to attorneys practicing in animal law
as "generalists" who are trying to build the field. "A lot of people who do animal law " will accept a
case even though it's outside their normal practice area," she said. "They take
on a broad variety of cases and stick their necks out because if they don't do
it, no one will."
Within the broad legal arena known as animal law,
there are several more specific issues that are gaining particular attention
these days."Pet custody is hot," said Gislason, noting that
people are living with more animals now than children.
Most states don't have laws on the books in this
area, but people think they do, Gislason observed. In reality, who gets a pet
during a divorce is something that is completely within the judge's discretion.
With the nation's high divorce rate, it makes sense to develop laws in the area
of pet custody, she said.
According to Bloomquist, pet trusts are another
emerging area. It used to seem novel, but we are seeing more and more issues
surrounding wills and trusts devoted to pet care after one's death, she said. While more than half the country currently allows pet
trusts, Minnesota is not one of them, despite recent efforts by attorneys to get
such a statute passed, Gislason observed. "That is extremely upsetting to senior
Ownership of exotic animals - like tigers - and the
legal issues it touches on, is another growing area, Bloomquist added.
Examination of these issues involves the public's and the county's perspective
on animal ownership, as well as consideration of the best interests of the
Practitioners also assert there are a variety of
areas in the animal law arena that need to evolve, like veterinary medicine. "Veterinary malpractice laws have to change,"
Gislason observed, noting that unlike medical malpractice premiums across the
country, veterinarian premiums are less now than they were 10 years ago.
Under current law in Minnesota, all a pet owner may
recover in a case of veterinary malpractice is economic loss or replacement
value of the pet. But many people would rather lose an expensive piece of art
than a beloved pet, Gislason opined.
Corwin explained that while animals have
traditionally been looked at merely as property, courts seem to be becoming more
sympathetic to punitive damage claims, especially in cases where someone
intentionally causes the death of another person's pet. "But it is still largely
a property value claim," he said. "The law hasn't caught up with how we view
Bloomquist added that questions are now being raised
over the rights of the animals, as well whether pet owners can recover emotional
damage for the loss of an animal. "We are seeing more requests for sentimental
value," she said. "New law is being developed there." Gislason said that much of the work of the ABA's
Animal Law Committee and the MSBA's Animal Law Section centers on bringing
attention to these issues and implementing much-needed change. "There need to be
laws on the books that make sense," she said.
Who are the real dumb animals?
May 17, 2007 Margaret Wente,
Globe and Mail
Which one would
you rather lynch? The guy whose fiancée bled to death after she was clawed by
his captive tiger? Or the guy who cut his puppy's ears off because he wanted a
offences are quite different. One was a tragic accident and one was outright
cruelty. But it's pretty clear that neither of these idiots is fit to own an
animal. Okay, so the death penalty might be a bit much. Maybe we could just cut
off their ears and keep them in a chain-link cage.
in many parts of Canada,
the laws governing animal cruelty and exotic species are so weak that we can't
do much about these sorry cases. In many provinces, including Ontario and
British Columbia, anyone can buy a tiger and open up a roadside zoo. No law
prevents people from breeding and selling jungle cats as pets.
It is not
necessarily illegal to bash stray cats to death, or keep caimans (they're
related to alligators) to guard your grow-op. "You can buy a hippo and put him
in your pool," says Hugh Coghill of the Ontario Society for the Prevention of
Cruelty to Animals. Maybe I shouldn't mention that because, as Mr. Coghill says,
"some idiot will do it."
Many of our
animal-welfare laws are antique. They date from the horse-and-buggy days, and
they reflect the thinking of the times. Although various reforms have been in
the works for years, they have a way of dying before they become law. It's not
that politicians are indifferent. They just have more important things to do.
proprietor of Siberian Magic, the tiger farm in B.C., used to take his tigers to
the mall, where, for 40 bucks, you could get your picture taken with them. The
rest of the time they lived in chain-link cages measuring 12 feet square. The
SPCA had been after him for years, and repeatedly warned the authorities that
the tigers were a danger to the public. They got no response. "It simply wasn't
a priority," says Marcie Moriarty of BC's SPCA.
Dumstrey-Soos, Mr. Carlton's fiancée, mistook his animals for overgrown kitty
cats. She was reaching through the cage to pat one of them good night when it
patted back and slashed a major artery in her leg. She bled to death as her
terrified six-year-old son looked on. "I kept telling her not to wear a dress,"
says the grieving Mr. Carlton, which sounds a bit like blaming the victim to me.
The tiger was put down and, now, he says, he's grieving the death of two loved
ones. "It's archaic
that we don't have regulations about who can keep exotic wildlife," says Ms.
shepherd-Rottweiler puppy was rescued from an apartment in Windsor, Ont., after
a neighbour called the SPCA. The ears of dogs like these are often clipped to
make them look more menacing and, evidently, the owner decided on a
do-it-yourself job. The dog's owner can't be charged until the SPCA can prove
animal abuse without a reasonable doubt. The stiffest penalty that can be
imposed is a six-month sentence and a two-year ban on pet ownership. Legally,
the owner can get the dog back while the SPCA is still investigating.
"Ontario is way
behind other provinces," says Mr. Coghill. He can't even inspect puppy mills or
pet shops or private zoos without a firm case and a search warrant. "They can
tell me to get stuffed," he says.
You don't have
to be an animal-rights wing nut to see that something's wrong here. Nor is it
all that hard to fix. In many cases, a few changes in provincial legislation
would do the trick. It would be nice to toughen up the laws before another naive
animal-lover gets mauled by a tiger, or the idiot who cut off the puppy's ears
decides to get another puppy. Reasonable animal-welfare laws are a political
no-brainer. They're also an important thing to do.
Of Interest: Lawyers
for Animal Welfare
(LAW) is a Canadian Registered Charity
(#80399 7212 RR0001) dedicated to advancing public knowledge of animal
practices and preventing the abuse and killing of animals through the
enforcement of existing laws.
January 2012 LAW is changing its
name to Animal Justice Canada.
February 21, 2012
Crime to run over dogs,
but not cats?
August 9, 2014
to amend Civil Code to better protect animals from abuse
The legal system needs to be reformed to put ALL animals on the map,
including those exploited as economic commodities! Animals are live
sentient beings. They are not inanimate objects nor are they property.
We all know this, yet we've failed to grant them status. Fighting for
their liberation everywhere. We are catalyzing change.
August 22, 2014
Animals can be 'victims'
just like people, Oregon Supreme Court says
Animal Rights FAQS; history of, Age
of Enlightenment, Turkey's animal rights, France updates laws
Animal rights moves forward in
Europe; AW Party wins; AU under pressure, Canada lags behind; time for an Animal
Charter of Rights & Freedoms; WTO hinders global progress
New Swiss law enshrines rights of
'social' animals; investing in animal welfare; WTO 'morals' decision
NABR: Animal law news listed by country