Digging into the legal rights of dogs and other companion animals.
By Roger Hagy
Photographs by Patrick Murphy-Racey
Originally published in Tennessee Law, Fall 2016
Her entire butt wiggles. She can’t help it.
When she wags her tail, she can’t help but wag her entire backside in feverish, uncontrollable excitement. And it’s cute as a button.
The derriere in question belongs to Molly, a beautiful Staffordshire bull terrier with a shiny coat of black fur peppered with strands of white-gray. She’s never met a stranger and immediately loves each person she meets, anxiously trying to lick their face and squirming with unmitigated joy.
[pullquote-right]”Despite her happy, fun-loving demeanor, Molly and many dogs like her fill up animal shelters throughout the country due to their breed or appearance.”[/pullquote-right]
And yet, it took months before Molly was adopted from Young-Williams Animal Center in Knoxville, where she had been surrendered—at the age of two, with no medical issues—due to the health problems of her previous owner. In fact, so much time had passed that Young Williams began posting regularly on Facebook about Molly, sharing photos and videos, campaigning for someone to welcome her home. She even made an appearance on a local news broadcast.
Luckily in May, Knoxville citizen Richard Vogt came to Molly’s rescue and adopted her. At her new home, she has a large backyard with plenty of shady trees for cooling off after bouts of intense play. She doesn’t want for anything and is living a life of canine luxury.
Despite her happy, fun-loving demeanor, Molly and many dogs like her fill up animal shelters throughout the country due to their breed or appearance. Molly is a member of the group of so-called “bully” breeds that also includes pit bull terriers, boxers, Boston terriers, and bulldogs, among others. These breeds are often perceived to be violent, aggressive, and unsafe due to their unfortunate history as unwitting participants in dog fighting operations.
[pullquote-left]”Laws that ban particular breeds of dogs…create the illusion, but not the reality, of enhanced public safety.”[/pullquote-left]
The reality is that no dog breed can definitively be considered violent or aggressive in all cases. “It is important to evaluate and treat each dog, no matter its breed, as an individual,” states the American Society for the Prevention of Cruelty to Animals (ASPCA) on its website. “Behavior develops through a complex interaction between environment and genetics…Early positive experiences, most notably socialization, are considered key in preventing aggressive tendencies in dogs.”
However, despite research calling breed-specific regulation into question, laws exist throughout the country to outlaw dogs of specific breeds. “Laws that ban particular breeds of dogs…create the illusion, but not the reality, of enhanced public safety,” the ASPCA states. Singling out all dogs of a certain breed punishes the entire group, punishes responsible dog owners, and burdens local animal shelters.
Actual cases of dog attacks on humans cannot be ignored, however. Instead of enacting breed-specific dog control laws, some governments have passed breed-neutral dog control laws, such as leash laws and anti-chaining laws, that focus more on the responsibilities of a dog owner. In fact, more than a third of all states have passed statewide bans on breed-specific legislation.
“I analogize it to humans,” says Joan Heminway in discussing breed-specific legislation. Heminway, the Rick Rose Distinguished Professor at UT Law, advises the college’s chapter of the Student Animal Legal Defense Fund, UT Pro Bono Animal Law Project, and National Animal Law Competitions team. “If we were to look at different racial, ethnic, or gender populations and determine one of them is bound to be more violent because of something in the population’s background, are we just going to say we can’t keep those people in our community?”
The challenge to reversing the long-held bias against certain dog breeds, Heminway says, is that under law, nonhuman animals are almost universally treated as property. “As a society, we’re in a quandary because we’re not sure under what circumstances a dog or a cat or other companion animal is like a couch or a table someone owns and under what circumstances an animal is more like a person’s child,” she says. “The law doesn’t adequately deal with animals in these individual circumstances. Are they companions? Livestock? Wildlife?”
Such a conundrum is illustrated in the case of a domestic abuse victim who leaves an abusive home to seek shelter but cannot take her pet with her. In many cases, the pet already faces violence at the hands of the same abuser, and when its caretaker leaves, it is left unprotected and endangered in the abusive household. In fact, it is this problem that led Heminway and her former student, Patricia Graves Lenaghan (’10), to notice the gap between the societal view of animals and the legal view, and they address it in their draft paper, “Safe Haven Conundrum: The Use of Special Bailments to Keep Pets out of Violent Households.” Lenaghan and Heminway examine the use and legal implications of animal safe haven programs, which take in a domestic abuse victim’s pet on a temporary basis while that victim seeks shelter in a facility that cannot accommodate the pet.
In some cases, however, an abuse victim can’t see leaving the home as a viable option. “Victims of domestic violence will often delay leaving their abusers to protect animals in the home,” says Elizabeth Strand, associate clinical professor and director of Veterinary Social Work at UT. Strand has researched the link between domestic violence and animal abuse and how animal abuse can be an indicator of hidden human abuse in the same household. “When animals are victims of violence, we know human beings are not in healthy environments either. Other research continues to support this, with the elderly, with children…Paying attention to animal abuse is paramount to keeping people safe, not to mention the animals.”
[pullquote-left]”We put animals in categories, but relationships between humans and animals are not necessarily contained within those strict boundaries.”[/pullquote-left]
The problem of animal abuse has seen some improvements in recent years. Tennessee is the first state to have an animal abuse registry, similar to the sex offender registry. Also, the FBI includes animal abuse in its national crime reporting.
Despite these improvements—and despite the loving connection between some humans and animals—at the end of the day, the law often still sees animals as property and doesn’t take into account the variety of ways humans interact with animals, especially in the case of pets.
“We can agree that a lot of people own cats and dogs as companion animals,” Heminway says, “but there are also people who keep snakes, ferrets, and rabbits as pets. Imagine taking one of those in. That animal is not treated like a cat or dog under Tennessee law, and you don’t have the same rights with that pet if you’re aggrieved. Similarly, horses are treated as livestock, not pets, even if that horse is your best friend. The law still categorizes animals based on what their deemed social and economic use once was. We put animals in categories, but relationships between humans and animals are not necessarily contained within those strict boundaries. Humans today interact with animals differently; there is much more of an emotional attachment and relationship.”
So it comes down to rights. What rights does a “nonhuman” animal like Molly have under the law? Asking such a question is a growing issue in law and requires applying “personhood” to nonhuman animals, at least to some degree.
[pullquote-right]”Animals interact with us every day. We can’t ignore them, so we have to consider how we treat them. And animal law is connected to business law, estate law…it really does touch every area of law in some way.”[/pullquote-right]
“There’s a spectrum of belief,” Heminway says, holding her hands apart to indicate range. “Animals have no rights,” she says, emphasizing with her left hand before switching to her right hand. “Or animals have the same rights as humans. In the middle is animal welfare. We don’t have to protect animals the same way we protect children or give them the right to testify in court. But if you harm an animal, that animal has the advantage of certain legal protections.”
Heminway and Alicia Teubert (’10) propose using analogy in making laws to better reflect modern societal norms regarding animals in their forthcoming article, “A Nonhuman Animal More Like a Human Baby or a Gun? The Role of Analogy in Societal and Legal Conceptions of Nonhuman Animals in the United States.”
“On the one hand, humans, at a societal level, generally are speciesists: They see themselves as different from and superior to other animals. This means that humans may have a tendency to treat nonhuman animals as socially inferior,” Heminway and Teubert write. “On the other hand, humans and certain types of nonhuman animals often work together or bond with each other in routine social situations. As a result, humans may, for example, import or attribute human characteristics to nonhuman animals in their relationships.”
But who cares? Why should the legal status of animals matter at all?
“It’s uncomfortable, legally and socially. Why are we working on nonhuman animal rights instead of helping humans? For me, it’s part of a broader, more holistic vision of society, to make sure we all live together on this planet,” Heminway says. “Also, animals interact with us every day. We can’t ignore them, so we have to consider how we treat them. And animal law is connected to business law, estate law…it really does touch every area of law in some way.” She smiles. “Plus, people love ‘em.”
How could you not? Just look at Molly, happy to have a safe home and a family who adores her…wiggly butt and all.