Elephants are people too (or soon could be)

Life in the circus might often seem like a glamorous one for human performers. But for circus elephants — who campaigners say undergo brutal training and spend much of their life in chains — it can be anything but.

Nor, obviously, can elephants choose to leave their show business profession. Yet this may be about to change, as one mystery elephant prepares to make legal history by challenging its captivity in an American courtroom.

The elephant’s identity is currently secret until the court papers are filed, to avoid tipping off the animal’s owners. But lawyers at the Nonhuman Rights Project (NhRP) have already lined up a sanctuary to take the elephant if the ruling goes their way.

In order to prevail, however, the NhRP has to convince a judge that this elephant is not a thing lacking legal standing but a person with the capacity for at least some of the basic rights typically reserved for humans — namely bodily liberty. If successful, the case could radically alter the legal status of some animals. Even if unsuccessful, it is likely to trigger a debate over just exactly how “personhood” is legally defined and whether or not it should be reserved for human beings.

When human beings are being held against their will, they have the right to petition a court for a writ of habeas corpus to challenge the legality of their captivity. The NhRP’s goal is to extend the same habeas corpus protections to at least some captive animals by having the courts recognize their legal personhood.

According to the NhRP’s founder, Steven Wise, when he began this work 30 years ago, people would react with disbelief at suggestions that animals could be anything other than property. But today, as more and more species are being listed as endangered and awareness grows about the suffering captive animals are subjected to, Wise believes that gaining personhood rights for at least some highly intelligent species or closely related ones like chimpanzees is not just attainable but inevitable.

As things stand, circus elephants and other captive wild animals are afforded basic protections under the Animal Welfare Act (AWA), which requires owners to provide adequate nutrition, medical care and housing that is large enough for the animal to stand up and turn around. Campaigners say this offers scant comfort to elephants, who in the wild live in cohesive family groups, form deep social bonds and walk up to 40 miles a day. Activists also say violations are frequent and enforcement is weak.

“It can take years before a suspected abuse case is investigated,” said Nicole Paquette of the Humane Society. “Typically what happens is that the owners will be cited and fined, and then it’s business as usual.” In 2009, an undercover investigation by PETA showed Ringling Bros. trainers repeatedly striking their elephants across their faces, trunks and legs with bull hooks and whips. In 2011, Feld Entertainment, Inc., which produces Ringling Bros. circuses, was fined $270,000 for AWA violations dating back to 2007. Last month, the self-anointed “Greatest Show on Earth” announced that it would be phasing out elephant acts, citing a “mood shift” among fans. In its statement, the company noted that by 2018 all of its elephants will be relocated to the Ringling Bros. Center for Elephant Conservation in Florida, where efforts to save the species from extinction will continue.

But the move is not likely to stop those asking for elephant personhood.

“So much of what animals suffer relates to their being regarded as property,” says Ed Stewart, the co-founder of the Performing Animal Welfare Society (PAWS) sanctuary in California, which provides refuge for several retired and neglected elephants.

One of the elephants they took in at the age of 13 is Nicholas, a 14,000 lb bull who was taken from his mother as a baby and trained to stand on his head and ride a tricycle. His owners at the Hawthorn Corporation were cited so many times for neglect and abuse that eventually the United States Dept. of Agriculture (USDA) took the highly unusual move of confiscating their entire herd. But four of his fellow elephants died, and one almost starved, before Nicholas eventually made it to safety and the scars of his years in captivity remain.

Even today, after eight years of being free from chains and punishment, Stewart notes, Nicholas’ eyes still fill with fear if he feels he has done something wrong.

The NhRP has already laid the foundation for its elephant case with three separate personhood lawsuits that are making their way through the courts in New York on behalf of four captive chimps: Tommy and Kiko, who live in cages on private property, and Leo and Herkules, who are used in research at Stonybrook University.

The group chose chimps and soon elephants as their first animal plaintiffs because of their capacity for self-determination and autonomy. It has already been established in several places across the world that personhood rights are not the sole privilege of human beings. In New York certain domestic animals are already deemed “persons” for the purposes of the Pet Trust Statute, and American corporations are considered persons in some instances. So too are certain Hindu idols and a Maori river in New Zealand.

Wise believes the chimps’ and elephants’ cognitive complexity should be a determining factor in winning those rights too. So far, however, judges are reaching very different conclusions on this score, illustrating just how complex the question of animal personhood is.

In Tommy’s case, the judge declared last December that he is not a “person” entitled to habeas corpus rights because he is unable to bear duties or responsibilities. That is, Tommy is not quite autonomous enough. In Kiko’s case, a judge declined to release him through a common law writ of habeas corpus on the grounds that doing so would merely involve transferring the chimp from one sort of captivity (a cage) to another sort of captivity (a USDA-approved sanctuary), and that although the latter situation would be significantly better, it would still compromise Kiko’s ability to fully express his autonomy.

Despite the rulings to date, Wise says his team is far from discouraged. The NhRP has already filed appeals in all of the chimp cases and will soon be making the same arguments on behalf of the mystery elephant. “We always knew that groundbreaking cases like these will have to be decided in a higher court,” Wise said. “It’s going to take time but I have no doubt that the day is coming when we will look on the way we have been treating captive animals with the same disdain we hold for human slavery.”

But even as discomfort is growing over the use of animals for entertainment and other purposes, there remains plenty of opposition to granting personhood rights to animals.

Critics argue that granting even a few select species any of the basic rights enjoyed by humans could have far-reaching consequences for the agriculture industry, for land cultivation or development and for use of animals in scientific research or captive breeding.

In a 1999 paper titled “The Next Rights Revolution,” NYU Professor Richard Epstein argued that “there would be nothing left of human society if we treated animals not as property but as independent holders of rights.” Instead, Epstein and others have simply argued for improved animal protections.

But animal rights advocates continue to argue that relying on owners to do the right thing by their animals simply isn’t working.

Just last week, reports emerged that two circus elephants on their way to perform in the Shrine Circus in Dallas, Texas were being used to help prevent a stranded 18-wheeler truck from overturning.

Accompanying photographs showed one of the elephants’ handlers prodding them with a bull hook as their body weight was used to hold up the truck. So far no citations were issued against the owners, but for some animal rights advocates, the incident is just another example of the need to stop treating animals as property.

“It might seem like a radical step,” said Stewart, after completing his morning rounds caring for Nicholas and other elephants at PAWS. “But when you spend thirty years of your life observing what these magnificent creatures are forced to endure, you start to realize that something drastic needs to be done. Granting them personhood is definitely a step in the right direction.”