Family or property: Pets and their changing protections under the law

Laws regarding animal rights continue to change as humans have begun to rethink what it means to own a “pet.”

Image: Holistic Hound, (Courtesy of Google Images)

Perhaps there was some insight in the famous words of Anatole France: “Until one has loved an animal, a part of one’s soul remains unawakened.”  After all, it is people’s love for their pets and their views towards these furry companions that has led to the changing status of animals under the law.  With an increasing number of people in America welcoming pets into their home and into their hearts, it should come as no surprise that attitudes towards pets—and towards animals, in general—have also changed.  In fact, a recent poll indicated that 95% of American pet owners view their pets as members of their families.

Despite the fact that animals, such as cats and dogs, are viewed by many as family members, the law in numerous states still treats them as personal property.  “Anti–cruelty statutes,” which have been enacted in all 50 states, seem to elevate the status of domestic animals, making them slightly more valuable than an inanimate object, such as a table or a chair.  With scientific studies confirming what nearly all pet owners know to be true—that animals are capable of feeling pain and expressing love—legal attitudes towards animals are also slowly changing.

“[A]ll  50 states now have felony provisions for violation of animal cruelty statutes.”

Prior to the 1860s, animals in America were largely seen as legally worthless beings.  Animals were considered to be a form of personal property, with only useful animals, such as cows or horses, being regarded as having any intrinsic value.  Cats and dogs, animals highly valued in today’s society, were not seen to have any value at all under the common law.  It was not believed that owners of these animals received any special benefit from ownership, as owners do under the three traditional categories of property—real, intellectual, and personal; however, the founding of the American Society for the Prevention of Cruelty to Animals (ASPCA) by Henry Bergh in 1866, reflected a growing trend in people’s concern towards animals’ welfare and well–being.  This concern was shortly thereafter reflected in the law in New York’s 1867 anti–cruelty statute, which afforded legal protections to “any creature,” recognizing that they have the right to be free from unnecessary pain and suffering.  Although several other states enacted similar laws, as late as 1914 animals remained divided into two categories, with “useful” animals, such as cows or pigs, receiving the most legal protection.  The secondary category, “base nature” animals, included animals kept for pleasure, such as cats or dogs; these animals were not afforded the same protections as their “useful” counterparts, even under the new anti–cruelty laws.

Although the status of animals in property law was initially slow to change, growing social concern for the wellbeing of animals has resulted in the modification of existing anti–cruelty laws, as well as in the creation in some states of new legal protections for certain animals.  For example, all 50 states now have felony provisions for violation of animal cruelty statutes; in 1993, only seven states had similar provisions.  With pets and other animals increasingly becoming the subjects of legal battles and legislation, modern courts grapple with how these living creatures should be treated under existing law.  An example of this struggle can be found in custody battles, in which many judges now consider the best interests of the animal, and not simply ownership rights, when determining in which home the pet would receive the most love and care.  There seems to be a dissonance with how the law sees pets—as things—and how the vast majority of Americans see their pets, as beloved members of the family.  Recent legal changes have blurred the lines between property and animal, and between animal and person.

Some courts even recognize the right of owners to recover for emotional damages when their pet is wrongfully killed or injured. Traditionally, these types of damages could only be recovered for harm to a family member, such as a spouse or a child.  New York was one of the first states to depart from the traditional view of pets as property, as seen in the 1979 case, Corso v. Crawford Dog & Cat Hospital. In Corso, Ms. Corso sued for mental suffering damages after holding an elaborate funeral and discovering the body of a cat in a casket meant for her beloved poodle.  Overruling prior precedent, the court held, “[A] pet is not just a thing, but occupies a special place somewhere in between a person and a piece of personal property.”  Ms. Corso was awarded $700 to compensate her for the mental anguish she suffered and for being deprived of the right to memorialize her pet dog.

More recently, certain tragedies, such as Hurricane Katrina, also served as turning points in animal law, leading to changes in federal and state policies regarding pets and emergency evacuations.  At the time of Katrina, there were no provisions in the law providing specific evaluation plans for pets. A 2006 poll found that 44% of the people who chose to remain behind did so because they did not want to leave their pets alone and afraid, as homes and entire neighborhoods were flooded and destroyed.  An estimated 70,000 pets were killed in that disaster.

In one emotional scene, a small dog was ripped from the arms of a little boy as he was being evacuated, and was forbidden by rescue workers from taking his dog with him. It was a telling moment in which even Congress was forced to admit that pets are more than just animals; they are family, too.  As a result, in 2006, Congress enacted the Pets Evacuation and Transportation Standards (PETS) Act, which passed with bipartisan backing.  Thirty states have followed suit by enacting similar laws, compelling rescue agencies to rescue both people and their pets.  In a sense, this fundamental shift in legislative views towards pets allow them to become members of society, at least during natural disasters.

Two recent Oregon court cases illustrate the changing view of the law towards animals.

In State v. Fessenden (2014), the court held that a police officer, by entering the defendant’s curtilage and seizing a starving horse, did not violate the Fourth Amendment’s protection against unreasonable search and seizure.  The court extended the “emergency aid exception,”—typically reserved for human protection from imminent danger or harm—to nonhuman animals, so long as law enforcement officers have an “objectively reasonable belief” that immediate action is necessary to save the animal from suffering, serious injury, or a cruel death.  In Fessenden, Judge Walters opined that “horses also hold a special place in human affection,” and society has an interest in protecting them.

In State v. Nix (2014), the Supreme Court of Oregon held that animals can be classified as “victims,” after finding the defendant guilty of 20 individual counts of animal cruelty, rather than one count of animal cruelty towards 20 animals. The court reasoned that the legislative intent behind Oregon’s anti–cruelty statute was to “protect individual animals as sentient beings,” as this best represented the public’s interest. The court noted that under Oregon law, harm to an animal’s owner or harm to the public in general is not an element of the crime of animal cruelty, and therefore the only “victim” in the context of the statute could be the animal receiving the cruelty or neglect.  Although this case was later vacated for lack of jurisdiction, the court’s reasoning has been persuasive and influential in subsequent cases within the state of Oregon.

Last year, Connecticut enacted a law, commonly referred to as “Desmond’s Law,” which enables judges to appoint lawyers to serve as advocates representing the interests of cats and dogs in cases of neglect, abuse, and mistreatment.  The law, inspired by the horrific death of a pit bull at the hands of an abusive owner, has been described as groundbreaking by many animal rights advocates.  Under this law, court-appointed advocates may argue for the animals in court; however, their main role is to assist prosecutors in conducting investigations in animal abuse cases.  Supporters of this new legislation believe that this law will enable the state to prosecute more crimes against animals, meting out harsher punishments for the abusers.  They liken the new law to cases in which guardians are appointed to represent the interests of children or those pre–judged as legally incompetent; in both cases, advocates attempt to give voices to those who have none.

Around the world, other countries are embracing similar protections for animals.  In 2014, France passed a law classifying animals as “living beings capable of sensitivity.”  This law effectively upgraded the status of all pets, as well as wild animals living in captivity. The status of wild animals outside of captivity, however, remains the same; they have no recognizable rights.

In 2015, New Zealand enacted an even further reaching law, acknowledging animals as “sentient beings” and banning all cosmetic testing on animals.  Quebec also passed a law in 2015, commonly referred to as the “Animals are Not Things Manifesto,” which elevates the status of domesticated and farm animals, and even extends protection to certain wild animals.  This law addresses the need for the psychological care of pets, affirming that animals need to be “treated with as much dignity as possible.”  This is similar to existing laws in Manitoba, Ontario, and British Columbia.

There are three main schools of thought regarding animals and the law, each side supported by brilliant scholars and legal professionals.

With increasing pressure to grant more legal rights to animals, and the current state of the law being somewhat muddled and inconsistently applied, many people are worried about what the future might hold for both animals and humans.  There are three main schools of thought regarding animals and the law, each side supported by brilliant scholars and legal professionals.  On one end lies the traditional view—that animals should remain as a form of personal property, subject to human ownership.  On the other end lies the “abolitionist” view, supporting the idea that animals should be granted “legal personhood” status, holding many of the same rights and privileges as humans.  Somewhere in the middle are proponents of the “living property” view.

Following the traditional property view are some very surprising groups, including the American Kennel Club (AKC) and the American Veterinary Medical Association (AVMA).  They believe that, by maintaining the traditional legal relationship between pets and people, owners will be provided with more autonomy in deciding the best ways to care for their pets.  By changing the legal status of pets, they worry that all animals could be placed in jeopardy.  By increasing the legal rights of pets and other animals, the rights of human owners would necessarily be decreased.

Richard L. Cupp, Jr., a professor at Pepperdine University School of Law has argued that, rather than granting more rights to pets, it is better to focus on the moral responsibility all humans have towards animals.  Making animals “legal persons” could be harmful to human society, as human rights may be unintentionally lowered over time.  Professor Cupp has advocated for harsher and more meaningful punishments being enforced against violators of animal abuse statutes, as he believes that the best way to protect animals is by deterring the “sadistic human misconduct” that endangers animals in the first place.

On the other end of the spectrum lies the “legal personhood for animals” camp.  Perhaps the biggest advocate for this side is Gary L. Francione, who refers to himself and others who share his opinion as “abolitionists”.  They hold a rather revolutionary view, believing that animals should be declared legal persons, not subject to ownership or use by humans.  Several proponents of this view believe that animals should not even be subjected to emotional use by humans, in the form of being pets.  Under this theory of animal law, animals are sentient beings with intrinsic value, and should be treated the same as humans under the law.

Somewhere in the middle of these two extremes lie advocates of the “living property” view.  This view treats animals as a very unique form of property, as living creatures having interests independent of the humans who own them.  This group supports the creation of a new category of property, which would encompass all living beings owned by humans.  Naming property (i.e., naming a pet), suggests a level of concern for the well–being of the property (or pet), which is not seen with other types of personal property, such as tables or chairs.  Although proponents of this view do agree that wild animals or invertebrates would not typically be included in this new classification, they acknowledge the fact that existing anti–cruelty statutes would remain in place, giving protection to these animals.  Even though animals have demonstrably independent interests that deserve protection, advocates of the “living property” view do recognize that these interests cannot—and should not—be absolute.

Public policy may demand that animals’ interests be interfered with, in an effort to better protect them, such as seen in mandatory spay and neuter laws that are designed to prevent pet overpopulation and unnecessary death.  To accommodate the creation of “living property,” owners will lose some of their rights, as their “property” would be able to assert rights against them.  Additionally, even humans who do not own animals would have new duties towards animals that fall into the “living property” group.  “Living property” would possess additional rights, such as the right to be properly owned and cared for, the right to own property of its own, and the right to file tort claims through a legal guardian.  New laws, such as the one in Connecticut, and recent court rulings seem to reflect an acceptance of this view, as the rights of animals in these states have arguably been elevated much higher than that of inanimate personal property.

[A]s millions of Americans have welcomed pets into their homes and into their hearts, the law too has been forced to acknowledge that pets are sentient beings, capable of feeling and suffering.

As human sentiments toward animals change and evolve over time, so too does the law regarding these creatures.  As many people see pets as being more like a child than like an animal, legislatures and courts around the nation will have to grapple with the tough question of just how much protection animals should receive under the law.  Although animals already do hold some rights under American law, many people believe that they should hold more.  This has led to a growing movement of legal scholars and professionals advocating for “legal personhood” or “living property” status for animals, such as pets.

As Anatole France predicted, loving an animal, does indeed awaken a part of one’s soul, and as millions of Americans have welcomed pets into their homes and into their hearts, the law too has been forced to acknowledge that pets are sentient beings, capable of feeling and suffering.  As more and more people legitimately view pets as special, irreplaceable family members, an increasing number of people advocate for the law to reflect this sentiment.  In today’s society, animals have more legal rights than ever; only time will tell just how much more these four–legged companions can gain.

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About Miranda Tarlton (6 Articles)
Miranda is a third year law student and serves as an Associate Editor for the Campbell Law Observer. Originally from Charlotte, NC, Miranda attended Campbell University where she obtained a degree in history, with a minor in criminal justice. Before beginning law school, she worked for a number of years as an ESL teacher in Seoul, Korea. After her 1L year, Miranda worked in the legal department at Workplace Options. This past summer, she worked as a legal intern at the Law Offices of C. Melody Edwardo, PLLC. Miranda is currently a Co-coordinator for the Domestic Violence Advocacy Project, as well as the Vice President of the Student Animal Legal Defense Fund. Miranda is interested in international affairs and advocating for international human rights, and she is pursuing an LL.M degree through Campbell's partnership with Nottingham-Trent University.