The Journal of The DuPage County Bar Association

Back Issues > Vol. 28 (2015-16)

Recognizing Animal Sentience Within the Law
By Colin William Anderson

In May of 2015, the New Zealand Parliament unanimously passed the Animal Welfare Amendment Act.1 The new law is notable because of its express intent to reform the country’s laws regulating the treatment of animals in order to recognize animal sentience. In this way, the new law reflects a growing consensus that animals, like humans, are sentient beings and therefore entitled to greater legal protections.

Generally speaking, the term “sentient” is simply the ability to feel, see, hear, smell or taste.2 Few would doubt that animals are sentient beings in this sense of the word. But the New Zealand Parliament intended the term to carry a far more broad definition, one often utilized in animal rights philosophy. Dr. Virginia Williams, chair of New Zealand’s National Animal Ethics Advisory Committee, paraphrased the Parliament’s intent when she said that to acknowledge “animals are sentient is to state explicitly that they can experience both positive and negative emotions, including pain and distress.”3 By acknowledging that animals, like humans, are capable of complex emotional experience and mental consciousness, animal rights philosophers have made convincing arguments that animals therefore have inherent moral value independent of their use and value to human beings.4 It would therefore appear that by passing the Animal Welfare Amendment Act, the New Zealand Parliament is attempting to reflect the belief that as sentient beings with inherent moral value, animals are entitled to certain individual and arguably inalienable rights.

Given the stated intent of the Animal Welfare Amendment Act, it is possible for the new law to have far reaching implications. As Colin Allen and Michael Trestman noted in their article, Animal Consciousness:

“ There is a lot at stake morally in the question of whether animals are conscious beings or ‘mindless automata.’ Many billions of animals are slaughtered every year for food, use in research, and other human purposes. Moreover, before their deaths, many – perhaps most – of these animals are subject to conditions of life that, if they are in fact experienced by the animals in anything like the way a human would experience them, amount to cruelty.”5

A law that recognizes animal sentience could therefore have a substantial impact on the ways and extent to which farming, science, and other commercial industries may use and exploit animals in furtherance of their objectives. In fact, some would argue that recognizing animal sentience imposes a moral obligation to not just restrict certain uses of animals for humans’ benefit, but to completely abolish any and all use of animals, including the total abolition of the use of animals in science, the total dissolution of commercial animal agriculture, and the total elimination of commercial and sport hunting and trapping.6

To the extent New Zealand’s Animal Welfare Amendment Act is an attempt to impose this moral theory into the country’s laws, or a comparable moral theory, it is undoubtedly ambitious and likely unrealistic. It seems clear that any attempt to completely abolish humans’ use of animals would be unattainable in a modern western society like New Zealand, and if such a law was passed it would certainly have produced more headlines than New Zealand’s law did. Nevertheless, even without going to the full philosophical extent of what it means to be a sentient being, by recognizing animal sentience within the law there is still great potential for reducing much of the cruelty towards animals that is regularly bemoaned by animal rights proponents. The pertinent question then is the extent to which the substantive provisions of the Animal Welfare Amendment Act actually give animals independent legal rights and protections. It is possible that the Act’s acknowledgment that animals are sentient beings is mere window dressing with no real weighty legal impact.

The stated purpose of New Zealand’s Animal Welfare Amendment Act is to reform the Animal Welfare Act of 1999 to further prevent the ill-treatment of animals. The Act defines ill-treatment to mean, “causing [any] animal to suffer, by any act or omission, pain or distress that in its kind or degree . . . [and] in the circumstances in which it is inflicted, is unreasonable or unnecessary.”7 The Act defines “animals” to include any mammal, bird, reptile, amphibian, fish, octopus, squid, crab, lobster or crayfish, and “any other member of the animal kingdom” which is subsequently declared by New Zealand’s Governor-General.8 With these core concepts in mind, the new law seeks to: (1) require owners of animals, and persons in charge of animals, to attend properly to the welfare of those animals; (2) specify conduct that is or is not permissible in relation to any animal or class of animals; (3) provide a process for approving the use of animals in research, testing, and teaching; (4) establish a National Animal Welfare Advisory Committee and a National Animal Ethics Advisory Committee; and (5) provide for the development and issues of codes of welfare and the approval of codes of ethical conduct in relation to animals.

One of the more broad reaching sections in the Act is the general duty imposed on all owners of animals, and every person in charge of an animal, to ensure that the physical, health and behavioral needs of the animals are met, and to do so in accordance with “good practice and scientific knowledge.” 9 To the extent an animal is ill or injured, the Act requires the person in charge of the animal to take steps to ensure the animal receives treatment that alleviates any unreasonable or unnecessary pain or distress.10 The Act does not prevent euthanizing an animal when the animal is in such a condition that it is unreasonably or unnecessarily suffering, and in fact makes it illegal for a person to keep an animal alive when it is unreasonably or unnecessarily suffering and there are no steps available to treat or alleviate the suffering.11

The Act also makes it illegal for an owner or person in charge of an animal to abandon the animal, without reasonable excuse, in circumstances where the person has not taken steps to ensure the animal’s physical, health and behavioral needs are met.12

Significantly, the Act makes it a criminal offense for not just individuals to willfully or recklessly mistreat animals, but corporations as well.13 A violation for an individual is a maximum of 5 years in prison or a $100,000 fine, and for a corporation a $500,000 fine. Violations are governed by “strict liability” standards, meaning an individual can be prosecuted regardless of whether the individual intended to violate the Act.14

By comparison, Illinois law similarly makes it illegal to willfully mistreat an animal and also to abandon an animal. Under the Illinois Humane Treatment for Animals Act, it is a criminal offense to beat, cruelly treat, torment, starve, overwork or otherwise abuse any animal, and no owner may abandon an animal where it may become a public charge or may suffer injury, hunger, or exposure.15 The Illinois Act also requires owners to provide animals in their charge with a sufficient quantity of good quality, wholesome food and water; adequate shelter and protection from the weather; veterinary care when needed to prevent suffering; and humane care and treatment.16 In this way, the New Zealand Act is not that much different from Illinois law other than the ability to charge corporate entities with the crime.

In addition to the broad and all-encompassing measures, the New Zealand Act also addresses specific issues with more narrowly tailored rules. For example, the Act prohibits veterinarians from performing certain types of surgeries, such as debarking a dog or declawing a cat, unless the veterinarian determines the procedure is in the interests of the animal.17 Illinois law does not prohibit declawing or debarking procedures, although it does prohibit the tail docking of a horse unless it is proven to be a benefit to the horse.18 Not surprisingly, the New Zealand Act does not ban recreational hunting. However, it does require anyone who sets a trap for an animal to check the trap at least once every day within 12 hours of sunrise, and once an animal is discovered in the trap to attend properly to the care of the animal as described above or humanely kill the animal immediately.19

On a commercial level, the Act goes to great lengths to “protect New Zealand’s reputation as a responsible exporter of animals and products made from animals.”20 As such, in addition to requiring every person in charge of transporting animals to ensure each animal is provided with reasonably comfortable and secure accommodation and is supplied with proper and sufficient food and water, the Act also requires each exporter to obtain an animal welfare export certificate. 21 A  certificate is granted only after the issuing authority considers a number of factors, including the experience of the exporter, the species of the animals to be exported, the number of animals to be exported, and the ages and physiological state of the animals to be exported.22 While the Illinois Animal Control Act requires a Certificate of Veterinary Inspection when transporting agricultural animals into Illinois, the Illinois certificate is primarily concerned with the health of the transported animals for human safety reasons, not out of concern for the animals’ wellbeing.23

One of the more lauded provisions within the New Zealand Act is the restrictions placed on animal research and testing, including a total ban on the use of animals in cosmetic related research and testing. This section limits the use of animals in research, testing, and teaching to those cases where there is good reason to believe the research or testing will enhance the understanding of human beings, animals or ecosystems, and where “the benefits derived from the use of animals . . . re
not outweighed by the likely harm to the animals . . . ”24 The Act also requires that before any research or testing may be performed, the Animal Ethics Committee must approve the testing and/or research.25 In determining whether to approve the testing or research, the Ethics Committee is empowered to consider not just the scientific or educational objectives, but also the harm or distress felt by the animals.26

Conversely, Illinois law places few restrictions on animal testing and research other than to cooperate with the U.S. Secretary of Agriculture in carrying out the Federal Animal Welfare Act.27 In fact, Illinois makes it a criminal offense for anyone to interfere with a scientific research or agricultural production facility, including gaining access to such a facility by using “false pretenses” for the purpose of “performing acts not authorized by that facility.”28 For example, gaining access to research and testing facilities for the purposes of whistle blowing or to sabotage the facility is illegal.

When New Zealand’s Animal Welfare Act is measured against comparable Illinois law, it is clear that New Zealand has taken substantial steps towards establishing both broad and narrow measures to ensure animal welfare, and which arguably endow animals with independent legal rights. Still, the New Zealand law does not significantly diminish, or even admonish, the fundamental ways in which New Zealand society uses and exploits animals for human benefit, which as stated at the outset many argue is a logical necessity once animal sentience is recognized.29 Instead, the New Zealand Act takes a utilitarian approach. The Act does not simply accept as true the premise that animals may be used and exploited by humans as humans see fit and at their discretion. Instead, the Act insists that any time humans use and exploit animals, such as with scientific testing, the benefit derived from the use of the animals must outweigh the harm suffered by the animals. While this may fall short of the hopes of many animal rights proponents, it is still undeniable progress in the fight for animals’ rights.

In The Radical Egalitarian Case for Animals Rights, Tom Reagan argued that because of the inherent moral value that comes with being sentient, animals have equal moral value to humans and therefore humans have a moral obligation not to use or exploit animals in any way. In making this argument, Reagan did not fool himself into believing the societal shift away from the deeply embedded use and exploitation of animals would be easy. Rather, he believed that people “must change their beliefs before they change their habits.”30 So in this sense, maybe it means something that while the substantive provisions of New Zealand’s Animal Welfare Act still allow the use and exploitation of animals in ways that many, like Reagan, believe are fundamentally immoral, the fact the law recognizes animal sentience nevertheless serves as a viable mechanism for changing peoples’ beliefs first, with the hopes that eventually peoples’ habits will be changed as well.

The New Zealand Act’s establishment of a National Animal Ethics Committee is therefore arguably the most significant provision within Act. In addition to being charged with specific tasks such as approving testing and research, the Committee is also charged with establishing codes of welfare that establish minimum standards with regards to the way in which persons and companies must care for animals.31 Furthermore, the Committee is also charged with advising New Zealand’s Minister of the Crown and Prime Minister regarding the adoption of additional standards and policies relating to animal welfare in the future. The National Animal Ethics Committee therefore serves as a powerful authority for both enforcing the Animal Welfare Act as currently written, and also for ensuring the Act serves as a fluid and progressive legal doctrine, which can be added to and improved upon in the near and distant future as peoples’ beliefs towards animals change. For this reason and others, the New Zealand Animal Welfare Amendment Act can be viewed as a great success for the animal rights movement.

1. Animal Welfare Amendment Act (No 2) 2015 at http://www.legislation.govt.nz/act/public/2015/0049/latest/DLM5174807.html.
2. http://www.merriam-webster.com/dictionary/sentient.
3. http: //www.stuff.co.nz/nelson-mail/68363264/New-Zealand-legally-recognises-animals-assentient-beings.
4. Tom Regan, The Radical Egalitarian Case for Animal Rights, In Defense of Animals (1985) at 13-26.
5. Colin Allen and Michael Trestman, Animal Consciousness, Stanford Encyclopedia of Philosophy (1995).
6. Tom Regan, The Radical Egalitarian Case for Animal Rights, In Defense of Animals (1985) at 13-26.
7. Animal Welfare Act 1999, p. 13 at http://www.legislation.govt.nz/act/public/1999/0142/latest/DLM49664.html.
8. Animal Welfare Act 1999, p. 11.
9. Animal Welfare Act 1999, p. 24.
10. Animal Welfare Act 1999, p. 24.
11. Animal Welfare Act 1999, p. 25.
12. Animal Welfare Act 1999, p. 26.
13. Animal Welfare Act 1999, pp. 32-33.
14. Animal Welfare Act 1999, p. 24.
15. 510 ILCS 70/3.01.
16. 510 ILCS 70/3.
17. Animal Welfare Act 1999, p. 27.
18. 720 ILCS 5/48-5.
19. Animal Welfare Act 1999, p. 40.
20. Animal Welfare Act 1999, p. 41.
21. Animal Welfare Act 1999, p. 30.
22. Animal Welfare Act 1999, p. 43.
23. 510 ILCS 5/1.
24. Animal Welfare Act 1999, p. 59.
25. Animal Welfare Act 1999, p. 61.
26. Animal Welfare Act 1999, p. 70.
27. 225 ILCS 605/2.1.
28. 720 ILCS 5/48-2.
29. Tom Regan, The Radical Egalitarian Case for Animal Rights, In Defense of Animals (1985) at 13-26.
30. Tom Regan, The Radical Egalitarian Case for Animal Rights, In Defense of Animals (1985) at 24.
31. Animal Welfare Act 1999, p. 53.

Colin W. Anderson is a principal attorney at the law firm of Anderson & Uddin, P.C. Colin’s practice includes attorney and professional malpractice defense, foreclosure law and debt collection, and commercial and contractual litigation. Colin is a graduate of the John Marshall Law School (J.D. 2009) and Northeastern Illinois University (B.A., cum laude, 2006). Colin is also the founder of the Animal Law Project, an organization that provides pro bono legal services to animal welfare groups throughout Illinois.

 
 
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