April 28, 2022

An Elephant Goes to Court


Elephants are very special animals: intelligent, complicated, intense, tender, powerful and funny…. social, emotional, personable, imitative, respectful of ancestors, playful, self-aware, compassionate – these are qualities that would gain most of us membership to an exclusive club.

One day in 1971, an infant female elephant was abducted from a herd in Thailand, apparently after both her mother and other females who might have protected her were killed. The killer had other plans for this baby elephant. She would soon be crated up and shipped across the Pacific so that she could become a captive prize of a zoo for most of the rest of her life.

In writing these blogs about the human-inflicted suffering of animals, I have been trying to imagine how the animals affected might feel. In other words, to endeavor to see the world through their eyes. For my part, I can’t help wondering how frightening the experience must have been for this newly born elephant to see her mother and other females murdered, and then to be captured, boxed up in darkness for days, to eventually find herself in a strange land, alone, bereft, and scared.

For some reason, I find myself thinking of how when the Lindbergh baby, the young son of Charles and Anne Morrow Lindbergh, was kidnapped in 1932, and then eventually found to have been murdered, everyone in America, it seems, and elsewhere, had been aware of it and sorrowed with the Lindberghs for their devastating loss. But in the forests of Thailand, of course, there was no one but the killer to hear the cries of the baby elephant, and certainly no one left to mourn her disappearance. What a horrible way for a life to begin. 

You will not believe the irony when I tell you that this elephant, when she found herself in America, was given the name Happy. She and six other Asian baby elephants were all named after Walt Disney’s seven dwarfs. And some of them wound up becoming circus performers. Such was the ludicrous fate of these magnificent animals as it was for Happy, too – to become mere fodder for the amusement of children, Dumbo come to life. A trainer of that era described Happy as “a more physical elephant than anything I’ve seen,” explaining, “That’s why I put all the physical tricks on her—the hind-leg stand, the sit-up.”

Eventually, however, Happy was spared further such indignities. For many years now, she has been a denizen of the Bronx Zoo. She is old now, but if you live in New York, you can still see her in her pen. And if you did see her, what exactly would you see?

In a long article about Happy in a recent issue of The New Yorker by Lawrence Wright, we find this description:

Happy’s pen, at the Wild Asia exhibit in the Bronx Zoo, exemplifies the aesthetic of late-twentieth-century zoo design: creating the illusion of a natural habitat and disguising, as much as possible, the fact of captivity. There is a beaten path, which Happy has trodden alone for the past sixteen years, encircling a small pond with water lilies, where she can bathe and wallow. Leafy trees surround a one-acre enclosure, which is dominated by an artificial dead tree trunk, artfully fashioned with hollows and scaling bark. The enclosure has to be cleaned constantly, as a female Asian elephant can eat up to four hundred pounds of vegetation a day and excrete about sixty per cent of that. From November to May, when the New York weather can be cold, [she and another animal] are reportedly quartered in separate stalls scarcely twice the length of their bodies.

Joyce Poole is one of the world’s foremost students of elephants, who began studying them in 1975, at a camp near Mt. Kilimanjaro. According to Wright, Poole was given the opportunity to view videos of Happy in her pen, and had this to say about what she saw:

Poole observed only five activities or behaviors: standing and facing the fence; lifting one or two feet off the ground, perhaps to take the weight off painful, diseased feet; dusting herself; eating grass; and swinging her trunk in what appears to be “stereotypic” behavior—the kind of repetitive action sometimes displayed by animals who are bored or mentally unbalanced. “Only two, dusting and eating grass, are natural,” Poole testified. “Alone, in a small space, there is little else for her to do.”

Such has been Happy’s lot for the past sixteen years, though she has been at the zoo since 1977. Try to imagine what she has felt like all these years, day after monotonous day. It goes without saying, but I will say it anyway: This is not the kind of life that an elephant was meant lead. So the question we must confront in due course is what gives us the right to confine an animal like Happy like this for years on end, and does she herself have any rights? Maybe this is a matter for the courts to decide.

But first, in order to fully grasp the chronic predicament that a captive elephant like Happy is faced with, we must learn or remind ourselves what a normal life of a young female elephant is like.

To begin with – and this is fundamental – elephants, like ourselves, are social creatures, and, like ourselves, they live in families that are deeply and intimately connected with a larger social network. These families are headed by a matriarch, and females tend to stay with her and their sisters for the rest of their lives. It is inconceivable for a female elephant to live outside the ambit of her family and the greater social community in which her family is embedded.

Second, elephants, in order to find enough to eat and drink, must roam over vast distances, following the lead of the older, wise matriarch who knows where to find the means of sustenance all elephants need. The family also provides protection for the young females against any threat to their survival from other animals, including ourselves. In fact, the greatest danger they face is from poachers who kill elephants for their tusks.

Joyce Poole has compared elephants to whales and lions who need vast amounts of space in which to roam:

Their social lives demand it. Elephants are complex enough to weigh the challenges they face. They discuss among themselves and make collective decisions. You take that away and you take away what it means to be an elephant ... All we can do is give them more space.

Poole went on to indicate that she rejects the idea that elephants are safer in zoos than in nature.  

They have a better chance of living to old age in the wild. They don’t suffer the diseases of captivity – obesity, arthritis, foot ailments, behavioral abnormalities, and infanticide. Is it better for them to face poachers. I think it is.

Furthermore, elephants, who are the largest terrestrial animals left on earth, have a correspondingly huge brain, capable of complex thinking, including imitation, memory (their memories are legendary) and cooperative problem solving. And they experience the same range of emotions as do we humans – joy, altruism, compassion, empathy, and grief. They are also aware of and are able to mentally represent the knowledge, beliefs and emotional states of other elephants. And, as we shall see, there is no doubt that they are self-aware and conscious beings like ourselves.

Moreover, human beings and elephants have nearly identical nervous and hormonal systems, senses, milk for babies, and respond as we do with fear or aggression to threats of danger.

Of course, elephants cannot speak, but they definitely can communicate over vast distances and have a variety of calls –- roars, cries, rumbles, snorts and various trumpet-like sounds -- that convey meaning to other elephants. They can even pick up these signals with their feet.

If you read about the lives and especially the social nature of elephants – Carl Safina, for example, who has spent time with Cynthia Moss and Joyce Poole, writes beautifully about elephants in his book, Beyond Words: What Animals Think and Feel – you cannot help but marvel at what nature has created in these magnificent animals who share so many features with us humans.

And once you take this in, you can see how obscene it is to rip a young elephant away from her family and community, from the social world which gives meaning to her life, and then pen her up in a small enclosure by herself for the rest of her life so that we can come by and ogle her at our pleasure.  Would we ever do this to a child? Then why ever would we do this to another conscious, self-aware creature like ourselves in so many ways who has no means to defend herself? Who speaks for the elephant who cannot speak and who has no weapons with which to protect herself?

It seems we must leave her defense to the lawyers, and that’s exactly what is happening now to Happy. She is still in her pen, but her future is now being adjudicated in the courts of our land. 

Indeed, the case of Happy actually began several years ago, in September, 2019, in a crowded courtroom of the Supreme Court of New York. Representing the interests of Happy were attorneys for an organization called the Nonhuman Rights Project (or NhRP), which had been founded in 1998 by an animal rights activist named Steven Wise. Kenneth Manning spoke on behalf of the Wildlife Conservation Society, which operates the Bronx Zoo. In Manning’s opening statement, he pointed out that a half dozen previous cases brought by NhRP in support of the rights of chimpanzees had already failed in New York courts. Quoting from the ruling of one of those decisions, Manning read the court’s verdict: “The asserted cognitive and linguistic capabilities of a chimpanzee do not translate to a chimpanzee’s capacity or ability, like humans, to bear legal duties, or to be held legally accountable for their actions,” and therefore the animal could not be entitled to habeas corpus.  In short, chimps are not entitled legally to the rights pertaining to persons. So why should those rights be granted to elephants?

The NhRP’s attorney attempted to counter that judgment by arguing that “probably ten percent of the human population of New York State has rights, but cannot bear responsibilities, either because they are infants or they are children or they are insane or they are in comas or whatever.”
 
Manning urged the presiding justice, Alison Tuitt, to follow precedent: “The law remains well settled that an animal in New York simply does not have access to the habeas-corpus relief, and that’s reserved for humans. So, there is nothing in this case dealing with any claim of mistreatment or malnourishment or anything with respect to Happy the Elephant.” Manning summarized, “In short, your Honor, Happy is happy where she is.”

Various experts on both sides then weighed in. Director of the Bronx Zoo, James Breheny, stated that the Wildlife Conservation Society had “led the charge to help stop the ruthless slaughter of 35,000 African elephants each year for the ivory trade.” Furthermore, Breheny fumed, “We are forced to defend ourselves against a group that doesn’t know us or the animal in question, who has absolutely no legal standing, and is demanding to take control over the life and future of an elephant that we have known and cared for over 40 years.” He went on, “They continue to waste court resources to promote their radical philosophical view of ‘personhood.’”

According to the NhRP, however, it has repeatedly offered to drop the case if the zoo consents to send Happy to one of two sanctuaries, in Tennessee and in California, that have indicated a readiness to accept her. The zoo has steadfastly refused this offer. It regards Happy as its property and responsibility. End of story.

Except it isn’t.

As the case continued, it sparked a lively and sometimes acrimonious debate between the advocates of traditional animal welfare policies and those who favored the animal rights approach of Steven Wise and his NhPR colleagues. Peter Singer, the celebrated proponent of animal liberation whose 1975 book with that title was the catalyst for Wise, signed on, arguing that the real issue was not the cognitive abilities of animals, but whether they were capable of suffering. The venerable and much venerated Jane Goodall, who became world-famous for her field research on chimpanzees, also came on board, as did the distinguished legal scholar Harvard Law School Professor Laurence H. Tribe, who filed an amicus brief in support of a habeas corpus petition (NhRP) on behalf of Happy and NhRP. 

In this brief, Tribe wrote: 

Happy is an autonomous and sentient Asian elephant who evolved to lead a physically, intellectually, emotionally, and socially complex life. Every day for forty years, her imprisonment by the Bronx Zoo has deprived her of this life.

On the other side, an equally prominent Harvard professor, Steven Pinker, who is best known for his work on linguistics (and who writes beautifully on language usage and style – see his wonderfully engaging book, Sense of Style) takes strong issue with the approach of Wise and NhRP.

Asked whether he thought current animal welfare laws were sufficient to protect animals, he admitted, “Probably not,” but went on to say:

There are countless ways of strengthening them without, say, granting personhood to chickens. It seems more rhetorical than morally sound to take a concept that was designed for us in the first place and try to shoehorn very different species in ... If our concern is reducing the avoidable suffering of other species, let’s just minimize the suffering.

Many other people and organizations are opposed to granting personhood to animals, including Sloan Kettering in New York, which also filed an amicus brief against NhRP, citing the work of several 2020 Nobel laureates which led to a cure for Hepatitis C:

Critical to the laureates’ discovery was the use of chimpanzees—the same species that the Nonhuman Rights Project has sought to endow with habeas corpus rights ... Without the use of animals—and in this case, comparatively intelligent animals—the world might have been deprived of a discovery that promises to save innumerable lives.

A brief filed by veterinary groups contended that providing a writ of habeas corpus to Happy would “completely redefine the human-animal legal relationship” by undermining the status of ownership: “If animals do not receive the timely care they need, including during legal battles over their fate, they are the ones who will suffer. Ownership is the true pro-animal position.” 

And so the wrangling continued, but in the end, Steven Wise lost his case. In the New Yorker article by Lawrence Wright that I have been drawing on for this blog, the author quotes Justice Tuitt’s summary of her decision:

“This Court agrees that Happy is more than just a legal thing, or property. “She is an intelligent, autonomous being who should be treated with respect and dignity, and who may be entitled to liberty. Nonetheless, we are constrained by the caselaw to find that Happy is not a ‘person’ and is not being illegally imprisoned.” Tuitt stated that, in her view, the legislative process was better equipped to decide whether zoos should be allowed to keep elephants, but she noted that she found the arguments “extremely persuasive for transferring Happy from her solitary, lonely one-acre exhibit at the Bronx Zoo, to an elephant sanctuary on a 2300 acre lot.”

Wise is appealing the decision.

That, for now, is the end of this case, but it is not the end of this blog, for I have a personal coda to add, which represents a third position.  

In my (non-lawyer’s) view, it is beside the point to argue over whether Happy should be regarded as “a person.” The real question at issue, it seems to me, is whether Happy is a self-aware creature, just as we humans are. If she is, then she should be accorded the same rights as ourselves.  

And there is data to indicate that Happy is indeed a self-aware animal. It comes from “the mirror test.” The way it works is this: You paint a spot on an animal’s head and then put her in front of a mirror. Does she recognize the spot? If so, then she is aware of herself as a distinct being, just as we are when we look into the mirror, however bleary-eyed, in the morning.  

We know that children after they reach a certain age pass this test, and so do chimps and orangutans. But what about Happy? Here’s what they found when they tested her this way.

She moved in and out of view of the mirror a couple of times, until she moved away again. In the following 90 seconds, out of view of the mirror, she repeatedly touched the visible mark. She then returned to the mirror, and while standing directly in front of it, repeatedly touched and further investigated the visible mark with her trunk. Happy touched the white “X” twelve times, becoming the first elephant to pass the mirror self-recognition test.

Happy was definitely aware of herself. Given that, what right do we have to pen her up as if she were merely “a dumb beast?” Isn’t it obvious by now that Happy deserves to be granted the same rights as ourselves? Who cares if she is or is not legally “a person?” She knows that she exists as a distinct being and because she is capable of suffering, and has, for so many years, who could possibly object to her being freed at last to live safely in a sanctuary for a few years before she dies?

One last story, which will shock you, having to do with the cruelty that has been visited on other elephants.  

Did you know that elephants can be lynched? I came across one gruesome such case that Wright cites in his article. Here it is:

In 1916, following a circus performance in Tennessee, an elephant named Big Mary stepped out of line after spotting a watermelon rind. Her inexperienced handler, who was riding atop the animal, stabbed her with a bull hook. According to one account, the elephant hurled him to the ground, plunged her tusks into his body, trampled him, and then kicked his bloody corpse into the horrified crowd. A local magistrate ordered that Big Mary be hanged. A chain was placed around her neck, and she was slowly hoisted off the ground, as her feet pawed the air. The chain broke, and when Big Mary landed she shattered her pelvis. She lay there, moaning, until another chain was found and she was hanged successfully. The circus’s other elephants were made to observe the execution.

Well, yes, that was over a century ago, and it wouldn’t happen today. But there are still many instances of animal cruelty, as we know, because of our failure to grant animal rights. But, as you will learn in the next blog in this series, there is now a growing movement for what has been called “animal justice.” Despite the outcome in Happy’s case, that movement has already begun to attract powerful and influential voices, one of the most prominent of which you will be meeting next and learning about her forthcoming book, which is entitled Justice for Animals: Our Collective Responsibility. Animal rights activists may have lost the case of Happy, but the battle for animal rights promises to be vigorous and holds out hope that at least some animals will not only have their day in court, but this time will emerge victorious.

3 comments:

  1. Brian Anthony KraemerApril 28, 2022 at 9:26 AM

    I hope that you are correct, Ken, that love and respect for animals of the non-human varieties will receive their due love, empathy, respect, and understanding. What will we do when we discover the sentience of plants as well? What astounds me more than anything is the variety of opinions of the animal who prides himself above all animals and even hesitates to admit to being one. I grew up on a farm where a neighbor of mine, well respected by the community, branded his cattle with no anesthetic. He also castrated his bulls without anesthetic. I remember hearing the poor creatures crying, screaming really, in pain. The old farmer was a good Catholic, had eight to ten children, went to mass every Sunday, and yet when I confronted him in his eighties with his earlier cruelty, he laughed. When I questioned how he would feel being castrated without sedative, he laughed again.

    Another neighbor of mine, a dairyman and father of four, would pick up a kitten, pet it for a few seconds and then toss it over his shoulder, as least six feet to the ground. I don't get it. I just do not get it how some human animals can be so compassionate to non-human animals and others can be so cruel and indifferent, lacking compassion and empathy.

    No one could have written this article without tremendous compassion and empathy. I wish I knew how to increase such qualities. The only way I can think of as a possibility is human suffering. Perhaps this apparently bleak future of global climate change, continued pandemics, pollution of the air, water, and earth, and raising inferior human beings to positions of power because we admire bullies, will provide the environmental "soil of suffering" in which compassion, empathy, and understanding might grow.

    It's also possible to do just the opposite, reducing the human animal to barbarism like we're seeing in the Russian destruction of the Ukrainian people, their homes, their businesses, their very lives. I've never seen a non-human animal wreak such havoc on its fellow creatures, never. I suspect that non-human animals may be much closer to the Great Spirit than the human animal. Plants may be still closer and those things we consider non-sentient like stars and moons and rocks (so dependable and predictable that we explain their behavior with laws of physics) might be the closest of all. May all manifestations of the Great One remember who we are and bow before the Whole with love, compassion, empathy, and respect.

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    1. Ken, you write movingly and persuasively of the need for animal justice. You give us hope by bringing in what others are doing to address this need. May your words, and the words of others like you, be heeded far and wide. I also appreciate your comments, Brian Anthony Kraemer. Would that compassion, empathy, and respect reigned supreme in the human domain.

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