Rabbit Advocacy Animal Matters

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 change.

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 the parameters.

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 compromise."

Sentient property is explained in greater detail in Matlack's forthcoming book, "We've got feelings too!"

Animal law is a growing area     

August 29, 2005 Michelle Lore - The Minnesota Lawyer (Minneapolis, MN)

With dogged determination, ferocious drive and a little horse sense, animal-law attorneys have dug out an attractive practice area.

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 ago.

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 years.

"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 years."

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 animals;
* the changing liability standards and insurance coverage in dog bite and other animal cases;
* 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 land use.

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."

Hot buttons

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 citizens."

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 animals involved.

Change needed

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 animals."

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 cool-looking dog?

The two 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.

Unfortunately, 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.

Kim Carlton, 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.

Tanya 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. Moriarty.

The German 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.