Rattling the Cageexplains how the failure to recognize the basic legal rights of chimpanzees and bonobos in light of modern scientific findings creates a glaring contradiction in our law. In this witty, moving, persuasive, and impeccably researched argument, Wise demonstrates that the cognitive, emotional, and social capacities of these apes entitle them to freedom from imprisonment and abuse.

Steven M. Wise, J.D., has practiced animal law for over twenty years and has taught at the Harvard, Vermont, and John Marshall law schools. He is President of the Center for the Expansion of Fundamental Rights, which he founded in 1995. The author of Rattling the Cage, praised by Cass Sunstein as "an impassioned, fascinating, and in many ways startling book" (New York Times Book Review), and Drawing the Line, which Nature called "provocative and disturbing," he has been profiled nationally by such publications as the New York Times, the Washington Post, and Time magazine.

Foreword

ix

Jane Goodall

Acknowledgments

xv

The Problem with Being a Thing

1

(8)

Trapped in a Universe That No Longer Exists

9

(14)

The Legal Thinghood of Nonhuman Animals

23

(12)

Border Crossings

35

(14)

What Are Legal Rights?

49

(14)

Liberty and Equality

63

(26)

The Common Law

89

(30)

Consciousness, Taxonomy, and Minds

119

(44)

Seasons of the Mind

163

(16)

Chimpanzee and Bonobo Minds

179

(60)

Bending Toward Justice

239

(28)

Epilogue: Other Cages, Other Peaks

267

(4)

Notes

271

(68)

About the Author

339

(2)

Index

341

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Chapter One

The Problem with

Being a Thing

It is difficult, to handle simply as property, a creature possessing human passions and human feelings ... while on the other hand, the absolute necessity of dealing with property as a thing, greatly embarrasses a man in any attempt to treat it as a person.

--Frederick Law Olmsted, traveling in the American South before the Civil War

Jerom's Story

Jerom died on February 13, 1996, ten days shy of his fourteenth birthday. The teenager was dull, bloated, depressed, sapped, anemic, and plagued by diarrhea. He had not played in fresh air for eleven years. As a thirty-month-old infant, he had been intentionally infected with HIV virus SF2. At the age of four, he had been infected with another HIV strain, LAV-1. A month short of five, he was infected with yet a third strain, NDK. Throughout the Iran-Contra hearings, almost to the brink of the Gulf War, he sat in the small, windowless, cinder-block Infectious Disease Building. Then he was moved a short distance to a large, windowless, gray concrete box, one of eleven bleak steel-and-concrete cells 9 feet by 11 feet by 8.5 feet. Throughout the war and into Bill Clinton's campaign for a second term as president, he languished in his cell. This was the Chimpanzee Infectious Disease Building. It stood in the Yerkes Regional Primate Research Center near grassy tree-lined Emory University, minutes from the bustle of downtown Atlanta, Georgia.

Entrance to the chimpanzee cell room was through a tiny, cramped, and dirty anteroom bursting with supplies from ceiling to floor. Inside, five cells lined the left wall of the cell room, six lined the right. The front and ceiling of each cell were a checkerboard of steel bars, criss-crossed in three-inch squares. The rear wall was the same gray concrete. A sliding door was set into the eight-inch-thick concrete side walls. Each door was punctured by a one-half-inch hole, through which a chimpanzee could catch glimpses of his neighbors. Each cell was flushed by a red rubber fire hose twice a day and was regularly scrubbed with deck brushes and disinfected with chemicals. Incandescent bulbs hanging from the dropped ceiling provided the only light. Sometimes the cold overstrained the box's inadequate heating units, and the temperature would sink below 50°F.

Although Jerom lived alone in his cell for the last four months of his life, others were nearby. Twelve other chimpanzees--Buster, Manuel, Arctica, Betsie, Joye, Sara, Nathan, Marc, Jonah, Roberta, Hallie, and Tika--filled the bleak cells, living in twos and threes, each with access to two of the cells. But none of them had any regular sense of changes in weather or the turn of the seasons. None of them knew whether it was day or night. Each slowly rotted in that humid and sunless gray concrete box. Nearly all had been intentionally infected with HIV. Just five months before Jerom died of AIDS born of an amalgam of two of the three HIV strains injected into his blood, Nathan was injected with 40 ml of Jerom's HIV-infested blood. Nathan's level of CD4 cells, the white blood cells that HIV destroys, has plummeted. He will probably sicken and die.

Sales Tax for Loulis

The biologist Vincent Sarich has pointed out that from the standpoint of immunology, humans and chimpanzees are as similar as "two subspecies of gophers living on opposite sides of the Colorado River." Rachel Weiss, a young Yerkes "care-tech" who watched Nathan being injected with Jerom's dirty blood and saw Jerom himself waste away and die, wrote about what she had seen. During the time she cared for the chimpanzees of the Yerkes Chimpanzee Infectious Disease Building, Rachel learned firsthand that chimpanzees possess "passions" and "feelings" that, if not human, are certainly humanlike. It made them no less "difficult to handle simply as property." She stopped thinking of them as "property" and resigned from Yerkes shortly after Jerom's death.

Seventeen years before Jerom's death, the primatologist Roger Fouts encountered Loulis staring at him through the bars of another Yerkes cage. Loulis's mother was huddled in a corner. Four metal bolts jutted from her head. Fouts doubted that the brain research she had endured allowed her even to know that Loulis was her son. He plucked up the ten-month-old, signed the necessary loan papers, then drove Loulis halfway across the United States to his adopted mother.

Washoe was a signing chimpanzee who lived on an island in a pond at the Institute for Primate Studies in Norman, Oklahoma. Loulis did not want to sleep in Washoe's arms that first night and curled up instead on a metal bench. At four o'clock in the morning, Washoe suddenly awakened and loudly signed " Come, baby ." The sound jerked Loulis awake, and he jumped into Washoe's arms. Within eight days, he had learned his first sign. Eight weeks later, he was signing to humans and to the other chimpanzees in Washoe's family. In five months, Loulis, by now an accepted family member, was using combinations of signs. At the end of five years, he was regularly using fifty-one signs; he had initiated thousands of chimpanzee conversations and had participated in thousands more. He had learned everything he knew from the other chimpanzees, for no human ever signed to him.

As years passed, Fouts realized that Yerkes could call in its loan and put Loulis to the knife, as his mother had been. When Loulis was seventeen years old, Fouts sought to buy him outright. Yerkes agreed to sell for $10,000, which Fouts didn't have. After strenuous efforts, he raised that amount. But at the last second, a hitch developed. Ten thousand dollars was Loulis's purchase price. As if Yerkes were selling Fouts a desk or chair, Fouts was charged another 7.5 percent in Georgia sales tax.

The scientists who injected Jerom and Nathan kept the baker's dozen chimps imprisoned in a dungeon, and invaded the brain of Loulis's mother and the administrators who collected sales tax for Loulis believed that chimpanzees are things. But they didn't know why. Rachel Weiss and Roger Fouts show that we can come to believe--as they do--that chimpanzees are persons and not just things.

Demolishing a Wall

For four thousand years, a thick and impenetrable legal wall has separated all human from all nonhuman animals. On one side, even the most trivial interests of a single species--ours--are jealously guarded. We have assigned ourselves, alone among the million animal species, the status of "legal persons." On the other side of that wall lies the legal refuse of an entire kingdom, not just chimpanzees and bonobos but also gorillas, orangutans, and monkeys, dogs, elephants, and dolphins. They are "legal things." Their most basic and fundamental interests--their pains, their lives, their freedoms--are intentionally ignored, often maliciously trampled, and routinely abused. Ancient philosophers claimed that all nonhuman animals had been designed and placed on this earth just for human beings. Ancient jurists declared that law had been created just for human beings. Although philosophy and science have long since recanted, the law has not.

This book demands legal personhood for chimpanzees and bonobos. Legal personhood establishes one's legal right to be "recognized as a potential bearer of legal rights." That is why the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights nearly identically state that "[e]veryone has the right to recognition everywhere as a person before the law." Intended to prevent a recurrence of one of the worst excesses of Nazi law, this guarantee is "often deemed to be rather trivial and self-evident" because no state today denies legal personhood to human beings. But its importance cannot be overemphasized. Without legal personhood, one is invisible to civil law. One has no civil rights. One might as well be dead.

Throngs of Romans scoot past the gaping Coliseum every day without giving it a glance. Athenians rarely squint up at their Parthenon perched high on its Acropolis. In the same way, when we encounter this legal wall, it is so tall, its stones are so thick, and it has been standing for so long that we do not see it. Even after litigating for many years on behalf of nonhuman animals, I did not see it. I saved a handful from death or misery, but for most, there was nothing I could do. I was powerless to represent them directly. They were things, not persons, ignored by judges. But I was butting into something. Finally I saw that wall.

In Chapters 2 through 4, we will see how it was built by the Babylonians four thousand years ago, then strengthened by the Israelites, Greeks, and Romans, and buttressed again by early Christians and medieval Europeans. As one might expect, its mortar is now cracked and stones are missing. It may appear firm and sturdy, but its intellectual foundations are so unprincipled and arbitrary, so unfair and unjust, that it is crumbling. It has some years left, but it is so weak that one good book could topple it. This is meant to be that book.

In Chapters 5, 6, and 7, I hope to convince you that equality and liberty, the two most powerful legal principles and values of which Western law can boast, demand the destruction of that wall. But there are about 1 million species of animals. Many of them, say, beetles and ants, should never have these rights. So the wall must be rebuilt. But how? In Chapter 8, I will show you that the hallmark of the common law, which is the judge-made law of English-speaking peoples, is flexibility. It abhors thick high legal walls, except when they bulwark such fundamental interests as bodily integrity and bodily liberty, and prefers sturdy dividers that can be dismantled and re-erected as new discoveries, morality, and public policy dictate.

Why Chimpanzees and Bonobos?

Chimpanzees and bonobos (sometimes referred to as "pygmy chimpanzees") are kidnapped for use as biomedical research subjects or as pets or in entertainment. They are massacred for their meat to feed "the growing fad for `bush meat' on the tables of the elite in Cameroon, Gabon, the Congo, the Central African Republic, and other countries," so that their hands, feet, and skulls can be displayed as trophies, and for their babies. Thousands are jailed around the world in biomedical research institutions like Yerkes or are imprisoned in decrepit roadside zoos or chained alone and lonely in private dwellings. When the last century turned, there were 5 million wild chimpanzees in Africa. We don't know the number of bonobos because they weren't then considered a species separate from chimpanzees. But it was probably about half a million. By 1998, only 200,000 chimpanzees remained, perhaps as few as 120,000, and maybe 20,000 bonobos. One of the world's most prominent bonobo experts, Takayoshi Kano, believes that less than 10,000 bonobos may have survived. Thousands of chimpanzees and bonobos are slaughtered every year. They are nearing annihilation.

In Chapters 9 and 10, you will get a close look at the kinds of creatures these apes are and how similar their genes and brain structures are to ours. You will learn about the scientific revolt that has broken out as an increasing number of scientists demand they be tucked into the genus Homo with us. We will peel back the layers of their minds and try to understand what is known about how they feel and what they think; why they are conscious and self-conscious; how they understand cause and effect, relationships among objects, and even relationships among relationships; how they use and make tools; how they can live in societies so complex and fluid that they have been dubbed "Machiavellian"; how they deceive and empathize, count simple numbers and add fractions, treat their illnesses with medicinal plants, communicate with symbols, understand English and use sign or lexigram languages, and how they might know what others think. We will compare what we think we know about their minds with what we think we know about ours.

I didn't choose to describe the plights of Jerom and Nathan and the rest of the Yerkes chimpanzees because they are not the worst known examples of legal chimpanzee abuse. That dubious prize probably goes to the notorious SEMA, Inc., renamed Diagnon, located in Rockville, Maryland. Sometime in 1986, a nauseated employee tipped off the True Friends, a band of animal-rights activists, who broke into the lab and videotaped what was happening inside. AIDS-infected baby chimpanzees were housed alone in what SEMA called "isolettes," metal cubes 40 inches high, 31 inches deep, and 26 inches wide, each of which contained a small window. Inside, the babies rocked and rocked as would the emotionally starved or the mentally ill.

I hope you will conclude, as I do in Chapter 11, that justice entitles chimpanzees and bonobos to legal personhood and to the fundamental legal rights of bodily integrity and bodily liberty--now. Kidnapping them, selling them, imprisoning them, and vivisecting them must stop--now. Their abuse and their murder must be forbidden for what they are: genocide.