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The battle to make Tommy the chimp a person

By Jon Kelly
BBC News Magazine, Washington DC

image copyrightNonhuman Rights Project

Tommy is 26. He lives alone behind a trailer sales park in upstate New York. His hobbies include watching cartoons.

He is also a chimpanzee. And now Tommy is at the centre of one of America's more curious legal battles.

A lawsuit submitted by a group called the Nonhuman Rights Project (NhRP) seeks to have Tommy recognised as a person under law.

It's a case with potentially radical implications, challenging as it does human society's very understanding of rights.

For his part, Tommy is blissfully unaware of the legal kerfuffle surrounding him. He lives behind Circle L Trailer Sales, along Route 30 near Gloversville, New York. The site is also home to a business called Santa's Hitching Post that rents out reindeer at Christmas.

The quality of his accommodation is a matter of dispute. A 79-page legal brief submitted by the NhRP claims that the chimp is kept in a "small, dank, cement cage in a cavernous dark shed".

"Tommy is in a small cage in a small room that is part of a very large edifice - almost like a huge warehouse," said Steven Wise, the attorney who is bringing the case. He told ABC News he had visited the premises and caught a glimpse of the chimp. The building contained 10 other empty cages, he added.

Three years ago, according to the the NhRP, there were four chimpanzees on the site, and not long before that there were six. They "were primarily used in entertainment", Mr Wise has said. But now, say the NhRP, Tommy is "all by himself - his only company being a TV on a table on the opposite wall".

image copyrightGetty Images
image captionChimpanzees like this one in Sydney, Australia, are recognised as highly intelligent

But Patrick Lavery, Tommy's owner, has insisted that the chimp is comfortable in this environment.

"He's really got it good," Mr Lavery told the Albany Times Union. "He's got a lot of enrichment."

Mr Laverty, who said he and his wife Diane had kept chimps for decades, added that Tommy had access to TV, cable and a stereo, and that he enjoyed watching cartoons.

In another interview, Mr Lavery denied the cage was small, insisting it was a spacious $150,000 facility with a door to an outside area. During the winter Tommy stays indoors in a building heated to 21C (70F), with the walls painted to resemble a jungle, he added.

He also said the chimp's accommodation complied with state and federal regulations and was superior to Tommy's previous home. "He likes being by himself."

Whatever the facts of Tommy's living conditions, he is now the focal point for one of the more distinctive cases to be considered by a mid-level state appeals court in Albany.

A panel of five appellate judges heard Mr Wise's petition for a writ of habeas corpus - a request for a custodian to prove he or she has lawful authority to detain a prisoner. A decision is expected in the next four to six weeks.

The NhRP's petition argues that New York law does not limit legal personhood to human beings. The state has previously conferred legal personhood status on domestic animals who are the beneficiaries of trusts, the campaign says, as well as extending rights to non-human entities such as corporations.

The lawsuit does not argue that chimpanzees are human, but that they are entitled to the rights of "personhood". It cites research by great ape experts which has established they are "autonomous, self-determined, self-aware, highly intelligent, emotionally complex".

image copyrightGetty Images
image captionThe campaigners draw parallels between chimpanzees kept in captivity - like this one in Dakar - and slavery

The lawsuit refers to an English case from 1772 that dealt with an American slave named James Somerset, who escaped from his owner in London. After a plea of habeas corpus was filed, the court ruled that Mr Somerset was a person rather than a thing and set him free.

On this occasion, Mr Wise has asked the court to transfer Tommy to the North American Private Sanctuary Alliance, a 120-acre facility in Wauchula, Florida, housing 45 great apes, many of which are former research animals.

Mr Lavery has waived his right to make an argument in court.

In December, an appeals court in Rochester, New York, will hear another case from Mr Wise relating to a chimpanzee called Kiko.

More from the Magazine

image copyrightGetty Images

Apes and humans have common ancestors but should they have the same rights? An international movement to give them "personhood" is gathering pace.

What would Aristotle make of it? More than 2,000 years after the Greek philosopher declared Mother Nature had made all animals for the sake of man, there are moves to put the relationship on a more equal footing.

Judges in Austria are considering whether a British woman, Paula Stibbe, should become legal guardian of a chimpanzee called Hiasl which was abducted from its family tribe in West Africa 25 years ago.

If Mr Wise's legal bid is successful, it would not be the first time that the rights of primates have been enshrined in law. In 2008 the Spanish parliament approved a resolution supporting the Great Ape Project, which argues that the rights to life, liberty and freedom from physical and psychological torture should be guaranteed to the creatures.

But the attempt to secure legal rights for animals has been criticised by some legal experts, including US Circuit Judge Richard Posner, who has warned that courts could be inundated with cases that could result in a series of contradictory rulings.

"I doubt that it will have any headway," says Mary Cheh, professor of law at George Washington University. "It's a pretty vacant landscape in terms of courts that would rule this way."

But the Princeton University professor Pete Singer, who coined the phrase Animal Liberation in his 1975 book of the same name, says that by widening the debate the case has already achieved an important objective.

"It's already of some significance even if it doesn't succeed," he says.

Tommy's thoughts on his place at the cutting edge of contemporary jurisprudence remain unknown.

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