September 15, 2004

 
CONVENTION COVERAGE

 Sentient property: a novel animal law proposal - September 15, 2004

posted September 1, 2004
 

More than property, less than persons

The legal status of companion animals as personal property is antiquated and out of step with society's growing affection for four-legged friends, according to attorney Carolyn B. Matlack, who says it's time for a change.

Matlack has proposed a novel legal classification for pets: sentient property.

The designation would allow courts to recognize that pets are a unique type of property; they are thinking, feeling creatures valued highly by their owners, she said. And though they are not the same as tables or chairs, pets classified as sentient property are not entitled to the same rights people enjoy.

The Davidson, N.C., lawyer introduced her idea during the American Veterinary Medical Law Association meeting, July 25, in Philadelphia. Matlack is president and managing editor of "Animal Legal Report Services," which publishes 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 necessary to prevent people from stealing animals, Matlack explained, adding 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 a hundred 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 research.

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 only 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.

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 starting point.

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 said.

Matlack explained that sentience is responsiveness to, or consciousness 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 attributed to the advent of the animal rights movement in America.

In his book, 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 argue that chimpanzees, gorillas, and other great apes 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 oppose 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 can be considered as sentient property, three legal tests, or the Teddy Test, named for Matlack's deceased Collie, must be passed first.

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.

Several veterinarians and lawyers have endorsed her proposal, Matlack said.

Matlack herself leveled the most obvious criticism of the sentient property status: Which animals are sentient? Do earthworms hurt? Can a paramecium feel pleasure?

Determining which animals qualify as sentient property will be a major point of contention in the courts. That is why veterinarians and lawyers must help define the parameters, she said.

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!"