Sentient property: a novel proposal for animal law
More than property, less than persons

The nation's legal definition of companion animals is antiquated and out of step with society's growing affection for their four-legged friends. Attorney Carolyn B. Matlack says it's time for a change.

Matlack offers a sentient property proposal as a balanced compromise about the legal status of pets. The concept defines animals as living, feeling companions but without the rights and liberties people enjoy.

It is a compassionate way in which courts can recognize that animals have feelings and emotions, rather than merely being property like a chair or table, Matlack said.

The Davidson, N.C., lawyer introduced her idea during the American Veterinary Medical Law Association meeting Sunday at the Doubletree Hotel Philadelphia. Matlack is president and managing editor of Animal Legal Report Services, a bulletin on trends in animal law for the veterinary profession.

In America's common law tradition, animals are a form of personal property. The classification was designed to prevent people from stealing animals, Matlack explained, and added that the first anticruelty statutes appeared around the time of the Civil War.

Such was the extent of animal law in the United States for more than 100 years. But that's all changed.

Today, animal rights and humane groups proliferate. Animal welfare legislation abounds. Pet owners in many cities consider themselves pet guardians. Law schools offer courses in animal law. Extremists threaten biomedical researchers and vandalize laboratories of those who use animals in experiments.

Many pet owners think of their Boxer dog or tabby cat as a member of the family. Clearly, society no longer values animals for their usefulness alone. And yet, the legal status of animals remains unchanged.

"We're living in an 'Animal Planet' world but with horse-and-buggy laws," Matlack quipped.

As further proof, Matlack presented raw data on the number of malpractice lawsuits filed against veterinarians. From 1945 to now, the total number of reported legal decisions is 1,798, she said.

After 1979 the numbers climbed sharply. From 1999 until the present, 305 suits against veterinarians were filed—almost a 17 percent increase.

Matlack doesn't expect veterinarians will face the same number of malpractice suits as human physicians currently do. But the willingness to sue veterinarians for a perceived harm to a pet is additional evidence that animals have become an important part of people's lives.

And the courts are looking for direction because their only guidelines are previous judgments based on outdated case law, said Matlack, who believes a new sentient property status is a good place to begin.

Sentient property, she said, is defined as any warm blooded, domesticated nonhuman animal dependent on one or more humans for food, shelter, veterinary care, or compassion and typically kept in or near the household of its owner, guardian, or keeper.

Farm animals and animals regulated by the federal Animal Welfare Act cannot receive sentient property status.

Matlack explained that sentience is responsive to, or conscious of, sense impressions, feelings, or sensation.

Ethicist Peter Singer applied the concept of sentience to animals in "Animal Liberation" first published in 1975—a date many say is the advent of the animal rights movement in America.

Singer used sentience to argue that particular nonhuman animal species clearly experience pain and pleasure in the same way humans do. Therefore, society cannot morally justify practices that subject those animals to pain and distress. Singer was most critical of the factory farming industry.

Singer went on to say that great apes, chimpanzees, and other animals close to humans on the evolutionary ladder are entitled to certain legal rights.

Matlack is far more conservative in her use of sentience and is not a proponent of animal rights. In fact, animal rights activists hate her sentient property proposal because animals are still classified as property rather than persons, she said.

Sentient property is based on the legal doctrine of substituted judgment. This rule, Matlack said, allows an individual to make a decision about medical treatment on behalf of a person unable to make that choice, such as a child or an elderly person.

Before a pet is considered as sentient property, it must meet three standards, or the Teddy Law, named for Matlack's deceased collie dog.

First, the animal owner needs to redress harm that caused pain and suffering or emotional distress for the animal. Next, the animal owner needs to redress harm for personal pain and suffering or emotional distress attributable to loss of or harm to the animal. And finally, the interests of the animal are weighed in light of the greater good of society.

Matlack said several veterinarians and lawyers have endorsed her proposal. Notably, the Texas 3rd Court of Appeals Texas cited sentient property to uphold a $47,000 ruling against PETCO in April.

Carol Schuster of Austin sued the company when her 14-month-old miniature schnauzer, Licorice, was found dead four days after a visit to the pet store for grooming. The dog ran away from a store employee and was hit by a car.

Matlack herself leveled the most obvious criticism of the sentient property status: Which animals are sentient? Do earthworms hurt? Can paramecium feel pleasure?

Determining which animals qualify as sentient property will be a major point of contention in the courts, she acknowledged. That is the reason veterinarians and lawyers must help define the parameters.

Matlack readily acknowledges that her proposal does not answer every legal question, nor will it ever. But those questions must not be allowed to delay the process, she said.

"This is a start. This is only the introduction of a phrase," Matlack said.

She hopes her sentient property concept will generate discussion that will ultimate lead to a legal compromise between the property-personhood debate. "There's no way we can answer every question," Matlack said. "But here is a phrase we can run with; it's a compromise."

Sentient property is explained in greater detail in Matlack's forthcoming book, "We've got feelings too!"