The Great Ape Legal Project
March 19, 2000
By Alex Tizon
Sometime in the next decade, a chimpanzee will have its day in court, and on that day it will be decided whether chimps are people, too. At least this is the goal of an ambitious group of lawyers fighting to dismantle the legal principle that animals are mere property with no fundamental rights.
The lawyers call it the Great Ape Legal project. Its supporters hail from some of the most prestigious universities and law schools in the land. The goal — what many see as the next logical step in the animal-rights movement — is to raise the status of great apes from property to legal persons with rights to life and liberty and perhaps even the pursuit of happiness.
Says Joyce Tischler, founder of a national network of animal-rights lawyers: “We’re pushing the envelope until we can press a case in which the animal is the plaintiff.”
Some of the more theatrical voices in the movement describe a scenario in which a great ape would testify on its own behalf in a lawsuit protesting its life behind bars. The ape would use sign language or a voice synthesizer. While the ape may not win, the presence of a chimpanzee in a courtroom could rattle some age-old presuppositions about the differences between humans and the rest of the animal kingdom.
A more realistic scenario, says Bellevue attorney Steve Ann Chambers, a leader of the ape project, would be a videotaped testimony of a chimpanzee in its own setting. The videotape would then be shown in court to demonstrate the chimp’s capacity to communicate complex thoughts and emotions.
The question at the core would be whether chimpanzees and other great apes possess the characteristics that qualify them as legal persons. The property status of animals is what allows humans to buy and sell them, breed and experiment on them, eat them and make their body parts into trinkets, trophies and briefcases. If animals gain legal standing, it would allow for dramatic changes in the way animals could be protected.
Not that animals would file lawsuits, but as legal persons, they could be represented in court by human guardians who could do the filing and fighting in the animals’ behalf.
The ape project is the leading point in a broader movement that ultimately hopes to bestow legal standing to many different kinds of animals. The movement, in concert with other campaigns to protect animals, and fueled by discoveries in genetics and neuroscience, has given rise to a burgeoning new legal specialty.
Animal law is where environmental law was 25 years ago, Chambers says. The area has been called the next legal frontier. Animal-law courses are now taught at Harvard, Yale, Georgetown and a dozen other law schools. And hundreds of lawyers in the United States — a dozen of them in the Seattle area — already practice some form of animal law.
This body of lawyers makes up what some call the legal arm of the animal-rights movement. While more radical activist groups have gotten more press, the lawyers have been working behind the scenes to strengthen legal protections for animals. These lawyers have been moving on many different fronts to establish precedents that ultimately could provide the foundation for a great-ape trial.
Why a great ape? Because the four kinds of great apes — chimpanzees, gorillas, bonobos (often called pygmy chimpanzees) and orangutans — are genetically so similar to humans that they stand the best chance to win such a case. The chimpanzee is genetically closest to humans, sharing more than 98 percent of our DNA code.
Predictably, there’s no shortage of critics who consider the project ludicrous and dismiss the notion of a great-ape trial as absurd. But a growing number of legal thinkers on both sides of the debate say such a case is not only possible but inevitable.
Steven Wise, a Boston lawyer teaching animal law at Harvard, believes the social and intellectual climate in the U.S. will be ready for a great-ape trial within 10 years. Wise was in Seattle recently promoting his new book, “Rattling the Cage,” which calls for “legal personhood” for chimpanzees.
Washington state Supreme Court Justice Faith Ireland says such a case could happen sooner — within two years. The circumstances already exist for a case to be brought to court, she says, but it may not be winnable this soon. The legal system may not be ready for that kind of leap.
The public, on the other hand, has shown an increasing openness to campaigns protecting animals. No longer are such wars waged only by fringe animal-rights groups. In Western Washington within the past five years, emotional battles involving a cross-section of citizens have occurred over Ivan the gorilla and a Makah tribal whale hunt. Most recently, a ban on circus animals was approved in Redmond. A similar ban was defeated by the Seattle City Council by one vote.
Ireland recently went through what she called a “paradigm-shifting experience” after watching a three-hour presentation on chimpanzees during a judicial conference. Among the featured animals was a local chimp named Washoe, believed to be the first ape to learn American Sign Language.
The 33-year-old Washoe lives with four other chimps in a research institute at Central Washington University (CWU) in Ellensburg, where scientists have done groundbreaking work in primate language studies, work considered central to the Great Ape Legal Project. Washoe has a working vocabulary of 240 signs and has taught other chimpanzees to sign.
Ireland says she’s undecided on the issue of legal personhood, but the presentation by Dr. Roger Fouts of CWU, a recognized pioneer in the field, made her realize the debate should be taken “very seriously.”
Says Ireland: “It boggles my mind to think of the ramifications.”
One consequence may be the end of society as we know it, according to University of Chicago law professor Richard Epstein, who calls legal personhood for animals a dangerous idea.
“Where would it stop?” he asks. “Would we then proffer rights to whales and dolphins? Rats and mice? Would even bacteria have rights? It’s one thing to raise social consciousness about the plight of animals and another to raise their status to an asserted parity with human beings. That move would pose a mortal threat to human beings. There would be nothing left of human society.”
Hunting and fishing groups oppose the idea for obvious reasons. Farming and livestock groups say the aim of the animal-law movement is to put them out of business. And pharmaceutical companies worry that medical experimentation on great apes and other animals may become limited or banned outright.
The whole enterprise of experimenting on animals presupposes that human life is more valuable than animal life. Banning animal experimentation, says Frankie Trull, president of the National Association for Biomedical Research, would dramatically slow down, and in some cases halt, progress in finding cures for diseases that cause great human suffering.
“The stakes are very high,” Trull says.
Popular culture has weighed in on the debate. The hit television show “The Practice” devoted an episode to a custody battle involving a signing chimpanzee named Tina who was about to be sold to a biomedical lab. The lawyer arguing on behalf of the laboratory told the judge:
“Look at every species and you’ll find something miraculous, something that says don’t sacrifice that life,” the lawyer says. “But in a court of law, we deal with the human race, your Honor. Like it or not, this arena is about human rights. And just as you said at the beginning of this trial, Tina is a monkey.”
Television lawyers aside, ape-project attorneys argue that the law must evolve with our constantly expanding body of knowledge. “We must follow the science,” says Wise, the Harvard law professor.
So far, the law lags far behind what scientists have discovered about primates, namely that they have much higher levels of cognition and social development than previously believed. It has become generally accepted in the scientific community that apes are capable of feeling and communicating complex emotions such as anger, fear, jealousy and pain. They work with handmade tools, wage war and live in societies bound by rules and expectations. Chimpanzees are genetically closer to humans than horses are to zebras, or dogs to foxes or African elephants to Asian elephants. Primatologists have come to categorize chimps as a “sibling species.”
Gary Francione, a law professor at Rutgers University, says that courts, when determining the legal personhood of fetuses or incompetent elderly, rely on a recognized list of attributes – attributes such as minimum intelligence, self-awareness, concern for others, and a dozen other characteristics. Francione says great apes possess all the characteristics on the list.
Animal-law attorneys say they are simply trying to move the cutoff line a little further down to include highly evolved species such as apes. Legal standing won’t mean that apes will vote or sit side by side with humans in movie theaters. The ape project hopes only to secure three fundamental rights: the right to life, the right not to be imprisoned and the right not to be tortured.
Eventually, whales and porpoises may be included in the movement, Wise says. But he is quick to point out that not all animals would qualify for legal standing: “Cockroaches and ants will never be eligible for any kind of rights.”
Animal-law attorneys draw parallels between the struggle to gain legal standing for animals and the struggle of slaves to become legal persons. Indeed, the arguments for and against, in both cases, sound remarkably similar. But some are appalled by the comparison.
Frans B.M. de Wal, a scientist at the Yerkes Primate Center at Emory University, wrote in a recent op-ed piece that the comparison “apart from being insulting, is morally flawed. Slaves can and should become full members of society; animals cannot and will not.”
Epstein, from the University of Chicago, puts it more succinctly: “Animals aren’t human beings.”
The Great Ape Legal Project, an alliance of lawyers, philosophers and activists around the country, was born in 1996 after a conversation between Steve Ann Chambers and Peter Singer. Chambers, the Bellevue attorney, is president of the Animal Legal Defense Fund (ALDF), a national network of lawyers working on behalf of animals. Singer, a philosopher whose 1975 book “Animal Liberation” set the stage for the modern animal-rights movement, heads an international group called the Great Ape Project (GAP). Singer now teaches at Princeton.
Chambers’ group offered legal muscle to Singer’s moral crusade to protect great apes worldwide. GAP now has branches in the U.S., Canada, Taiwan, Australia, New Zealand, Great Britain, Germany, Sweden and Finland. GAP was influential in Britain’s decision several years ago to ban experimentation on great apes. In October, New Zealand did the same.
In the U.S., ape-project lawyers are evaluating practical questions such as whether an ape could be sworn in as a witness. The law requires proof that a witness knows the difference between right and wrong, and trying to prove that primates understand what humans mean by these concepts might be a major — some say insurmountable — obstacle.
But Chambers believes the legal status of apes will change in increments, in a long series of low-profile cases rather than through a dramatic Hollywood-style ape trial. Those cases would build a legal foundation upon which an eventual breakthrough trial may be launched.
In a case last year, an appellate court in Washington, D.C., gave a zoo visitor legal standing to sue the government to provide companionship for a lone chimpanzee named Barney. The suit was filed under the federal Animal Welfare Act, which require that conditions of confinement assure “the psychological well-being of primates.” The zoo visitor lost the case, but the fact the court upheld his right to sue has been viewed as giving people new powers to challenge the living conditions of publicly displayed animals.
Chambers handled a case in 1994 in which a man’s dog was accidentally euthanized in a Pierce County animal shelter. Because animals are property, damages are generally limited to their market value. In this case, the dog was a Lab mix worth almost nothing as property. But more and more courts are awarding added damages for loss of companionship or the emotional distress of the owner. Chambers’ client was awarded $3,000 in damages. That the court recognized the dog as a companion was a subtle elevation of the animal’s legal status. And these subtle elevations, repeated hundreds of times, constitute a slow evolution.
“That’s the beauty of the law,” Chambers says. “It evolves and changes and transforms with what we come to know and experience as a society.”
Such cases constitute the main staple of a typical animal-law attorney’s practice. Other common cases involve pet-custody issues, “doggie death row” battles, veterinary malpractice and animal cruelty.
The Animal Legal Defense Fund, now in its third decade, has more than 600 attorney members willing to work on animal issues. Most do so on a volunteer basis while making a living practicing other kinds of law. Chambers practiced personal-injury law and commercial litigation before taking the full-time position as president of ALDF in 1994.
Animal-law attorneys provide prosecutors with legal assistance in animal-cruelty cases and campaign to toughen state anti-cruelty laws. As recently as six years ago, most states regarded such violations as misdemeanors. Now violations are considered felonies in 27 states with fines up to $100,000 and prison terms up to 10 years.
In Washington state, the law was upgraded to felony status in 1994, two years after a popular petting-zoo donkey named Pasado was beaten to death by three teenage boys. The light penalties meted out to the boys caused an outrage. Chambers helped draft the “Pasado law.”
Nationwide, as many as 50 attorneys practice animal law full time, and that number will only increase. Wise, who has taught animal law for 12 years, says that more frequently than ever, students in his classes at Harvard tell him the only reason they are studying law is to protect animals. Twenty-five years from now, the students in his classes will be practicing attorneys and judges, he says, and the paradigm that is shifting in society now will have shifted a great deal more by then.
Justice Ireland’s mind was not opened by legal arguments or philosophical treatises. Her view shifted after watching a videotape of a meeting between Dr. Fouts of Central Washington University and a 27-year-old chimpanzee named Booee.
Fouts had been Booee’s sign-language teacher. When that project ended, Booee was sold off to a biomedical lab, where she was kept in a windowless cage and deliberately infected with Hepatitis C and other viruses. Thirteen years passed without contact between teacher and pupil. Then Fouts decided to pay a surprise visit and brought a film crew.
The recognition was instant. Despite years of being subjected to experimentation, Booee remembered his teacher and immediately signed both their names: a finger drawn down the middle of the head for Booee and a finger-flick of an ear lobe for Fouts. The two signed back and forth and played games between the bars. When Fouts finally signed that he had to leave, Booee visibly slumped and shrunk to the back of the cage.
“It was so obvious that chimpanzee retained memories and had feelings and could communicate,” Ireland says. “For me it was, `Insert key; unlock mind.’ All of a sudden there was this `Aha. Now I understand.’ “