By Ralph DeMeo
Florida Bar Journal, Vol. 91, No. 7 July/August 2017 pg 42
“The time will come when men, such as I, will look upon the murder of animals as they now look upon the murder of men.” — Leonardo da Vinci (15th century, Italy)
How do we distinguish between animal rights and animal welfare within the scope of animal law? This is a question that has received much attention — and has been much misapprehended — in recent years. Traditionally, “animal rights” is the idea that some animals, particularly those of near-human intelligence, such as chimpanzees, have the right essentially equal to humans to live free from use in medical research, hunting, and other human use. Some would include in the definition of “animal rights” the freedom of all animals from being consumed as food. close contrast, but not identical in definition, “animal welfare” is the idea that most if not all animals must be protected against abuse and ensured humane treatment, without necessarily giving them equal rights guaranteed to humans. This article addresses these concepts in an attempt to aid the lawyer challenged by the need to understand the issues associated with this distinction in practice, and to aid all lawyers and interested others with understanding these concepts in the marketplace of legal, political, and social ideas.
Animal law is an expanding area of law that encompasses a number of more mainstream areas of law, such as criminal, tort, environmental, real estate, constitutional, and others.1 It defines the interaction between animals and humans in a variety of contexts. While the focus of this article is on laws affecting domestic and farm animals and some wildlife, the principles discussed herein apply to all animals. way of brief history, the 17th century French philosopher René Descartes (“I think, therefore I am”) believed that animals are machines that cannot experience the pain or suffering of abuse because they are unaware of that pain. Fortunately, for most (but sadly not all) civilized persons, that way of thinking has long been discredited, as animals are generally understood to be sentient beings, capable of sensations, emotions, and feeling pain.2 However, as relatively recently as over 100 years ago, and continuing in most venues to this day, animals have been considered personal property for humans to use as they see fit.3 For example, an owner of a dog could — and in most venues today still may — destroy his or her dog, cat, or other domestic animal at any time he or she wishes, because the dog is considered the owner’s personal property. Over time, animals have been granted more rights and protections under the law, although they are still deemed to be personal property. For example, many modern anti-cruelty laws exist that prohibit owners from abusing or neglecting their pets, even if the animal is legally the owner’s property.4
Animal rights and animal welfare advocates generally agree that all animals have certain basic rights, such as protections against cruelty and maltreatment, access to proper food and housing, and humane euthanasia when necessary.5 With this basic but somewhat limited understanding of animal “rights,” there is general, but not universal, agreement that animals are entitled to these protections, and state and local laws recognize these rights for some (but not all) animals.6 However, these protections are limited.7 Animal rights and animal welfare advocates are divided as to how animals should be categorized under the law, which if any rights should be given to animals, which animals should receive these rights, and whether humans should be able to use animals for human benefit.8
The following is a discussion of the differences between these two schools of thought.
• Animal Rights — Animal “rights” advocates generally believe that animals have rights similar or the same as humans, and that humans should not be able to use animals for their own personal gain or benefit, as it denies the animals their rights and dignity.9 Animal rights advocates fall predominately into two prominent schools of thought regarding how animals should be classified. The first school believes that animals should be granted the status of legal “persons.”10 Most commonly, animal rights advocates believe that certain animals deserve the rights of legal personhood because they exhibit extreme intelligence, self-awareness, social structures, wide emotional ranges, and advanced communication skills. Steven M. Wise, a prominent lawyer and founder of the Nonhuman Rights Project, has vigorously advocated that animals, such as great apes, whales, dolphins, and elephants living in captivity, are self-aware, autonomous beings that are inhumanely and even illegally deprived of “their freedom, the company of others of their kind, and natural habitats.”11 Because of the advanced mental and emotional status of animals who are “clients” of Wise, he maintains that these animals show sufficient traits to qualify for recognition of common law personhood and fundamental rights.12
Adversaries of this school of rights for animals often claim that by giving great apes or other animals the status of legal personhood, the law is equating animals to humans with all of the rights and privileges associated with that status. A common conception is that with these rights, a primate would be able to run for president of the United States. Of course, the rights being sought by Wise and his philosophical and legal followers are not nearly that extreme. For Wise and his followers, the status of legal personhood for an ape or whale is more akin to the status of corporations, children, or even the mentally disabled as legal persons.13 Under this concept, a plaintiff can protect the interests of the animal and even bring suit in the animal’s name, much like legal guardians protect the interest of children or the mentally ill by bringing suits on their behalf.14 While this is a controversial concept, it is not ridiculous or illogical, although it does stretch the limits of most current animal laws.
The second school of animal “rights” believes that animals should be given a “property-plus” status, indicating that animals are more than just property, and, therefore, should have more rights than mere personal property. This view has become prevalent particularly among pet owners, as humans consider their companion animals to be part of the family and not just property of their owners. Many pet owners have brought complaints in court on behalf of their pets, alleging typical torts, such as negligent injury to property, malicious destruction of property, or killing of a pet.15 Pet owners also have asserted claims on behalf of the pet’s interests, such as assault and battery of the pet, pain and suffering of the pet, and intentional or negligent infliction of emotional distress of the pet owner.16 Generally, courts dismiss these claims or bar them completely under the theory that the animal’s interest cannot be brought by the plaintiff unless the plaintiff is asserting a property right.17 For example, dissolution of marriage cases reiterate Florida law’s traditional view of animals as property.18 In Bennett v. Bennett, 655 So. 2d 109 (Fla. 1st DCA 1995), due to the animal’s status as property, though the pet was still considered a member of the family, the court declined to create a custody or visitation agreement between the parties and ordered the “award” of Roddy the dog according to equitable distribution.19
Increasingly, however, courts in Florida have taken small but important steps toward allowing owners to recover damages for the owners’ mental pain and suffering caused by the injury to the pet in cases such as LaPorte v. Associated Independents, Inc., 163 So. 2d 267 (Fla. 1964), and Knowles Animal Hospital, Inc. v. Wills, 360 So. 2d 37 (Fla. 3d DCA 1978). Also, the court in Paul v. Osceola County, 388 So. 2d 40 (Fla. 5th DCA 1980),agrees with the courts in Laporte and Knowles,by stating that malice or an intentional tort must be alleged for an owner to successfully claim damages for pain and suffering due to the loss of a pet. In other words, some courts have concluded that pleading and proving simple negligence is not enough.
Even though these cases still regard the pets as property, and damages are awarded because of great indifference or malicious intent toward the owner’s property, the courts are allowing the bond between the owner and the companion animal to be considered for damages. Some pet owners have even gone as far as to create trusts for their pets, clearly asserting rights on behalf of their companion that go beyond the status of property. A recent Florida statute allows a trust to be created to provide for pets should a pet outlive its owner.20 Companion animals have become integral members of the family and the “animal rights” argument goes that, at a minimum, the laws of the land should reflect this change in society.
• Animal Welfare — Animal “welfare,” according to the American Veterinary Medical Association, is defined as the human responsibility to ensure all aspects of an animal’s well-being, including proper housing, management, disease prevention and treatment, and responsible care and human handling.21 Animal welfare advocates, in direct disagreement with animal rights proponents, believe that animals may be used for human benefits, as long as the animals are treated humanely, and with dignity and respect.22 For example, animal welfare proponents support the use of animals in entertainment, sports, recreation, and agriculture, as long as there are anti-cruelty civil and criminal laws to protect the animals from abuse and maltreatment.23 Of course, animal rights advocates maintain that the very use of an animal for such activities is per se inhumane and violates their innate right to life. They argue that focusing on animal welfare does little to eliminate animal suffering and, instead, is mostly to make humans feel less uncomfortable about using animals in improper ways.
An example of an animal law that does not recognize the rights of animals as discussed above, but protects to a certain extent their welfare, is the Animal Welfare Act.24 The Animal Welfare Act is a federal law that sets minimum standards of treatment for animals in research, commercial use, and exhibition. The act specifically applies to “any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the [s]ecretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes.”25 The act explicitly excludes aquatic animals, birds, reptiles and amphibians, rats, and mice, as well as farm or agricultural animals. The federal government has an animal-fighting provision within the Animal Welfare Act; a 28-hour law for animal transportation, which requires animals be given food, water, and rest; and a Humane Methods of Slaughter Act for livestock, not including chickens, turkeys, rabbits, fish, bison, elk, antelope, or ostriches.26 Of course, the vast exclusions mentioned above for huge categories of animals, particularly farm or agricultural animals, is a limitation on the reach of this law that concerns in many cases even animal welfare advocates. The simple, and to most animal welfare advocates, sad fact is that farm animals suffer the most in the largest numbers because these laws do not protect them. This is certainly rooted in large part in the ingrained belief in most human societies that animals are sources of food, clothing, work, and satisfy other human needs that supersede the independent interests and needs of the animal. Sport fishing and hunting are also strongly rooted traditions in the U.S., as well as personal gun ownership, which while not necessarily regulated in the context of animal welfare, clearly impact animal welfare.
In addition to federal laws, many states have their own criminal animal anti-cruelty statutes. Florida in particular has a specific interest in protecting animals throughout its history, passing its first anti-cruelty statute in 1889.27 When challenged for vagueness, the Florida Supreme Court upheld the anti-cruelty statute, which broadly defines “animal” as “every living dumb creature,”28 and found the defendant to have been sufficiently given notice that torturing a raccoon would constitute animal cruelty.29 Florida has continued this path of animal protection, even amending its constitution to do so.30 The citizens of Florida voted to amend the Florida Constitution to provide specifically for the humane treatment of pregnant pigs. Pregnant sows may only be confined in areas large enough for them to turn around freely. A violation of this section constitutes a first-degree misdemeanor and is punishable by a maximum of a $5,000 fine, or fine and imprisonment “until the legislature enacts more stringent penalties for violations thereof.”31 While this amendment passed with the popular vote needed to amend the constitution in Florida, it was and remains controversial, largely because of the limited number of facilities affected by it that some argued did not justify a constitutional amendment. Nevertheless, this amendment reiterates the importance to Floridians of limiting the cruel treatment of animals, particularly evidenced by the reference to the possibility of the Florida Legislature enacting more stringent penalties in the future.32
In addition to the above, another Florida law demonstrates the commitment to animal welfare. Currently in Florida, cruelty is defined by statute as an act that “unnecessarily overloads, overdrives, torments, deprives of necessary sustenance or shelter, or unnecessarily mutilates, or kills any animal, or causes the same to be done, or carries in or upon any vehicle, or otherwise, any animal in a cruel or inhumane manner.” A violator is guilty of a first-degree misdemeanor.33 The Florida statute for animal cruelty also covers aggravated animal cruelty and failure to act by stating that any “person who intentionally commits an act to any animal, or a person who owns or has the custody or control of any animal and fails to act, which results in the cruel death, or excessive or repeated infliction of unnecessary pain or suffering, or causes the same to be done, commits…a felony of the third degree.”34 Because of the nature of their practices, veterinarians are shielded from cruelty investigations under this statute.35 Florida also has statutes criminalizing animal fighting between “roosters or other birds or between dogs, bears, or other animals,” and inhumane livestock slaughtering.36 The Animal Fighting Act also prohibits the use of live lures, such as jackrabbits for greyhound racing, including a one-time common training method known as “whirlygigging.”37 Notwithstanding the above, significant gaps remain in animal welfare protection laws in Florida and most states. For example, the recent Florida Fish and Wildlife Conservation Commission-sanctioned bear hunt in Florida, in which hundreds of bears, including 38 lactating mothers, were killed by sport hunters, shows that we have a very long way to go to protect all animals.38 Also demonstrating Florida’s mixed messages on animal welfare, the state has by far more greyhound racing tracks than any other state, despite well-documented abuses and neglect. Recent efforts in the Florida Legislature to “decouple” dog racing from gaming have failed, despite widespread bipartisan support. Although strides have been made as discussed above, until Florida comes to terms with these and other institutional forms of animal cruelty, it cannot be considered a truly humane state.
While the above and other states’ laws are helpful to protecting animals, animal welfare advocates assert that these laws fall short of the protections they are meant to provide.39 They argue that current protections are insufficient because punishment for action requires enforcement in the courtroom or by law enforcement, which is a heavy burden on the courts and prosecutors.40 Often, justice requires prosecutors to focus their limited government budget on other issues involving human-on-human crimes, making animal welfare and rights a low, if not nonexistent, priority.41 Also, as discussed above, animal welfare laws have gaping exceptions for animals of agricultural or food production, hunting, and research.42 While few would argue for the repeal of these animal welfare laws, most animal welfare advocates stress the limitations of such laws, as well as the need to expand their reach and the severity of penalties for the violation thereof.
As discussed above, animal rights refers generally to the right of animals to live free from human interference, including from use in medical research, hunting, and other human use. contrast, animal welfare refers to the idea that animals deserve protections, such as humane treatment, proper handling, food, water, and housing, and a humane end of life, throughout their lifetime interactions with and use by humans. One significant area of common philosophical and legal ground that most animal rights and animal welfare advocates have in common is the strongly held, and increasingly generally accepted belief, that animals are more significant to us than mere personal property, and have a special place in our lives beyond that of our cars, furniture, or other items of personal property. For this reason and others set forth in this article, general agreement exists that animal laws need to continue to develop and expand animal protections, as we understand more and more about the intrinsic value and sentient nature of all animals.
1 See Ralph A. DeMeo & Gregg R. Morton, Animal Law in Florida: Here and Now, 88 Fla. B. J. 8 (Nov. 2014).
2 Peter Harrison, Descartes on Animals, 42 The Philosophical Quarterly (1950-) at 219-227 (Apr. 1992), available at www.jstor.org/stable/2220217.
3 See Sentell v. New Orleans & C.R. Co., 166 U.S. 698 (1897).
4 See Fla. Stat. §828.12.
5 Cass R. Sunstein, The Rights of Animals, 70 U. Chi. L. Rev. 387, 389 (2003).
8 Id. at 400.
9 David Favre, Integrating Animal Interests Into Our Legal System, 10 Animal L. 87, 87 (2004).
10 While most animal rights advocates agree on certain central philosophical tenets, their thinking is not monolithic. For example, one noted rights advocate, Gary Francione, is critical of the animal rights advocates that focus exclusively on animals based on how closely they resemble humans. See Gary L. Francione, Taking Sentience Seriously, 1 J. Animal Law & Ethics 1, 8 (May 2006). Francione believes that this thinking still results in the majority of animals being excluded from moral significance.
11 Nonhuman Rights Project, Litigation Nonhuman Rights Project, https://www.nonhumanrights.org/litigation/.
13 See note 5.
15 See Michigan State University College of Law, Animal Legal & Historical Center, https://www.animallaw.info/cases/us/florida (contains Florida animal law cases).
17 See Kennedy v. Byas, 867 So. 2d 1195 (Fla. 1st DCA 2004).
18 Bennett v. Bennett, 655 So. 2d 109 (Fla. 1st DCA 1995).
19 Id. at 110. See also Fla. Stat. §61.075 (1993).
20 See Fla. Stat. §736.0408.
21 OIE (World Organization for Animal Health), Ch. 7.1, Introduction to the Recommendations for Animal Welfare, Terrestrial Animal Health Code 2010.
22 See Animal Welfare Council, Welfare vs. Rights, Animal Welfare Council, http://www.animalwelfarecouncil.org/?page_id=16.
24 See 7 U.S.C.A. §2131 (West), Animal Welfare Act. For a more detailed discussion of the Animal Welfare Act, see James F. Gesualdi, AWA Compliance: Understanding the Basic Framework, 90 Fla. B. J. 100 (June 2016).
25 See 9 C.F.R. §1.1 (definitions to the Animal Welfare Act for definition of “animal”).
26 See 7 U.S.C. §2156, Animal Fighting Provision of Animal Welfare Act; 49 U.S.C. §80502, 28-Hour Law; and 7 U.S.C. §§1901-1906, Humane Methods of Slaughter Act.
27 As the first predecessor to Fla. Stat. §828.13, the 1889 law made Florida the 43rd state to pass anti-cruelty measures. Emily S. Leavitt & Diane Halverson, The Evolution of Anti-Cruelty Laws in the United States, Animals and Their Legal Rights: A Survey of American Laws From 1641-1990 1, 4 (Animal Welfare Institute, 4th ed. 1990).
28 Fla. Stat. §828.02.
29 Wilkerson v. State, 401 So. 2d 1110 (Fla. 1981).
30 Fla. Const. art X, §21 (effective 2008).
32 Id. at subsection (d).
33 See Fla. Stat. §828.12.
36 See Fla. Stat. §828.122 (Animal Fighting Act); Fla. Stat. §828.22 (Humane Slaughter Act).
37 Fla. Stat. §828.122(2)(a).
38 David Fleshler, Final Tally: Florida Hunt Killed 38 Mother Bears, Sun Sentinel, Nov. 12, 2015, available at http://www.sun-sentinel.com/news/florida/fl-bear-hunt-update-20151112-story.html.
39 Robert Garner, Political Ideology and the Legal Status of Animals, 8 Animal L. 77, 82 (2002).
40 See Sunstein, The Rights of Animals, 70 U. Chi. L. Rev. 387 at 390-391.
41 Id. The mindset that “human crimes” should take precedence over “animal crimes” has been revisited in recent years. Studies increasingly have shown the strong link between violence against animals and violence against humans. See ALDF, Animal Cruelty Link to Other Forms of Community Violence.
42 See notes 26-29.
Ralph A. DeMeo is an environmental, land use, administrative, and animal law lawyer, and a shareholder with the Tallahassee law firm of Hopping Green & Sams. He received his B.A. and M.A. from Stetson University, and his J.D. from Florida State University. DeMeo is the 2016-2017 chair of the Animal Law Section. The author acknowledges the contribution to this article of Natalie Martinez, J.D., May 2017, Florida State University College of Law.
This column is submitted on behalf of the Animal Law Section, Gregg R. Morton, chair, and Debbie Brown, editor.