More than a half-century ago, noted science fiction author Isaac Asimov
began his acclaimed series of Robot novels, examining increasingly complex
interactions between humans and robots in a future world. Asimov's
underlying premise for the books was that robots had advanced sufficiently
to become sentient beings. Questions raised by this development include
whether robots should be granted legal rights, and if so, what those rights
should be.

Less fanciful, but no less complicated, is the current national debate about
animal rights, the resolution of which could result in a comprehensive
restructuring of the legal relationship between humans and animals. The
controversy is centered on the question of whether humans should be allowed
to own animals as property, or whether humans should be legally defined as
guardians of the animals in their care.

There are no easy answers to the question, and the intuitive response might
lead to unintended consequences.

The Status Quo

With few exceptions, animals are, and always have been, treated as the
personal property of their owners by courts and lawmakers. The Uniform
Commercial Code (a code of laws governing commercial transactions that has
been adopted in nearly all states), for example, includes animals (and
unborn young) among the "goods" that can be the subject of business
contracts. Kentucky statutes, for example, specifically define a licensed
dog as the "property" of the owner, and other jurisdictions have similar
laws.

This well-established property status means that animals legally can be
raised for profit or pleasure; bought, sold, or leased; exchanged or given
away; put on exhibition or used in races, sports, and other competitions;
and disposed of when appropriate or necessary. Status as property does not
mean that an animal is nothing more than the legal equivalent of a
refrigerator, an automobile, or a computer, however.

While generally defining animals as personal property, the law also
recognizes that animals represent a particular class of property and imposes
attendant obligations on an animal's owner. In recognition of the fact that
animals are living creatures generally dependent on their owners for care, a
legal niche is carved out to provide them with additional legal protection.

Kentucky law in this regard is typical of the laws in most states. The owner
of an animal is guilty of cruelty in the first degree if he or she uses the
animal for fighting, a felony with a maximum punishment of five years in
prison. There also is a legal obligation to provide adequate food, water,
and shelter for animals, and a legal prohibition against torture,
mutilation, neglect, and other mistreatment. There are numerous exceptions,
including hunting and fishing, food processing, veterinary care, and bona
fide medical research, for example, and most cruelty offenses that do not
involve animal fights are charged as misdemeanors. (A recent change in
Kentucky state law elevates the punishment for second and subsequent
convictions of torturing a dog or cat to a felony.)

In a majority of states, as in Kentucky, at least some instances of cruelty
to animals are punished as felonies. It probably is fair to say, however,
that animal cruelty offenses generally are classified as misdemeanors, with
a penalty of no more than 12 months in jail or, more likely, only a fine.

Another consequence of animals' status as personal property is a general
limitation on an owner's potential monetary recovery when an animal is
killed. If the death of an animal results from an intentional act, or
through the negligence of another person, the owner generally must seek
compensation in a civil lawsuit for the destruction of property, rather than
for wrongful death, which is the usual legal remedy for the death of a
person. If the lawsuit alleging destruction of property succeeds in court,
recovery generally is limited to the fair market value, or the replacement
value, of the animal.

Non-Economic Damages

In a few states, however, statutes specifically allow recovery for so-called
non-economic damages following the death of an animal. A recently enacted
Tennessee law, for example, allows the owner of a pet to recover up to
$4,000 beyond the economic value of the animal if certain conditions are
met. To recover, the owner must establish that the animal's death was the
result of another person's actions that were both unlawful and intentional
or negligent, and that the death occurred while the animal was on the
owner's property or under his or her supervision.

Illinois also allows pet owners to recover for non-economic damages,
including emotional distress, for the death of an animal in certain limited
circumstances. Similar legislation has passed or is pending in a small
number of other jurisdictions.

Even without specific laws, however, juries occasionally go beyond an
animal's actual replacement value to compensate an owner.

Kentuckian Judy Taylor owned two registered Appaloosa horses named Poco and
P.J. for more than 10 years, and she regarded the animals as members of her
family. Following a divorce and serious illness, Taylor reluctantly decided
that she no longer could care for Poco and P.J. by herself. She entered into
a "free-lease agreement" with Jeff and Lisa Burgess, under which the
Burgesses would provide pasture and care for the horses in return for the
use of the animals. No money changed hands.

The Burgesses agreed that Taylor could visit Poco and P.J. whenever she
wished, and that if conditions changed and they could no longer care for the
horses, they would be returned to their owner. Taylor never transferred
ownership to the Burgesses, and she never gave any indication that she did
not want the horses returned at some unspecified time in the future.

Shortly after Poco and P.J. arrived at the Burgesses' farm, Lisa contacted a
horse dealer well known for buying animals for slaughter. He purchased Poco
and P.J. for $1,000, and the horses subsequently were shipped to Texas and
slaughtered. Lisa Burgess repeatedly lied about the sale of Poco and P.J. to
Taylor, who eventually discovered the grisly fate of the animals with help
from members of a humane association.

Taylor filed a lawsuit against the Burgesses for the loss of her horses, and
following a jury trial she was awarded $1,000, representing the fair market
value of Poco and P.J. The jury could have stopped there, and should have
done so under a strict application of the animal-as-property theory. It was
undisputed that Taylor could have replaced Poco and P.J. for that sum.

Instead, the jury also awarded Taylor $50,000 in compensatory damages and an
additional $75,000 in punitive damages, for a grand total of $126,000. The
compensatory award was due to the Burgesses' "outrageous conduct" and the
punitive award was intended to deter similar conduct in the future. The
verdict and award were affirmed by the Kentucky Court of Appeals in 2001.

The appellate court did not acknowledge that the large jury award was proper
simply because Poco and P.J. were animals and thus were entitled to some
special protection under the law. In fact, the Court of Appeals specifically
determined that one of the elements that must be proved for a claim of
intentional infliction of emotional distress is the "offender's conduct"
rather than the "subject of said conduct." This might suggest that the fact
that Poco and P.J. were animals was irrelevant to the damages.

Nevertheless, the Court of Appeals clearly recognized and took into account
both the strong emotional bond that existed between Taylor and her animals
and the severe emotional distress she suffered when she learned what
happened to Poco and P.J. It is highly unlikely that a similar analysis
would be utilized to resolve the loss of other items of personal property
such as an appliance or automobile, regardless of the circumstances. It is
reasonable to suggest that the defendants' conduct was outrageous because
Poco and P.J. were animals.

Against this legal framework, in which animals are considered personal
property and protected primarily through anti-cruelty laws, several
different approaches to animal protection have emerged.

Redefining the Status of Animals

There can be no genuine controversy surrounding the proposition that animals
deserve proper care and that they should be protected from mistreatment and
abuse. The dispute arises over how the interests and well-being of animals
can be best served. For the traditionalist, the road to protection of
animals is paved with better owner education, more well-equipped and
well-funded shelters, harsher penalties for animal cruelty convictions, and
vigorous enforcement of existing anti-cruelty laws.

At the other end of the spectrum, extreme animal rights activists launch
violent attacks on commercial animal operations and facilities where animals
are used in research, destroying property and releasing animals. The Animal
Liberation Front (ALF) and the Earth Liberation Front (ELF), for example,
are considered part of a "serious terrorist threat," according to James F.
Jarboe, Domestic Terrorism Section Chief of the FBI's Counterterrorism
Division. Testifying before Congress in February 2002, Jarboe reported that
ALF and ELF members committed some 600 criminal acts in this country during
the preceding six years, with damages in excess of $43 million.

A third approach, certainly more middle-of-the-road than the actions of ALF
and ELF, but still well outside the mainstream, is a legal restructuring of
the traditional owner-property relationship between humans and animals.
Advocates are urging state and municipal lawmakers to rewrite their rules,
substituting the word "guardian" for "owner" wherever possible in laws that
affect animals. The purpose of the wording change, according to its
advocates, is to instill a greater sense of respect and compassion for
animals. This, in turn, could lead to a reduction in animal abuse.

The guardian movement had its genesis in 1995 at the 11th annual Summit for
the Animals held in St. Louis, Mo. Representatives from 47 national
organizations approved several resolutions there, including one styled
"Adopting Language that Recognizes Animals as Individuals and Not as
Property or Things." This resolution put forward the proposition that
"animals are not property to be used for the benefit or whim of humans." In
Defense of Animals, a Mill Valley, California-based, non-profit animal
rights advocacy organization headed by veterinarian Elliot Katz, DVM, soon
took up the cause with its nationwide Guardian campaign: "They are not our
property...we are not their owners."

The first serious attempt to effect a regulatory change from "owner" to
"guardian" failed in San Francisco, but a similar measure was adopted
shortly thereafter, in July 2000, by the City Council in Boulder, Colo.
Since then, a half-dozen other cities have revamped their municipal codes to
include references to animal "guardians." Rhode Island followed suit in
2001, becoming the first state to amend its laws to recognize human
guardianship of animals.

Rhode Island General Law Section 4-1-1(4) now states that a "Guardian shall
mean a person(s) having the same rights and responsibilities of an owner,
and both terms shall be used interchangeably. A guardian shall also mean a
person who possesses, has title to or an interest in, harbors or has
control, custody or possession of an animal and who is responsible for an
animal's safety and well-being."

Adding the word "guardian" to a state or municipal law, especially when the
law allows "guardian" and "owner" to be used interchangeably, sounds
innocent enough. After all, many animal owners already treat their animals
more like members of the family than as property, and being called guardians
rather than owners is not likely to make them more responsive to the
animals' needs.

Some activists also argue that the change in language will reduce the
incidence of animal abuse, by making owners feel more responsible for their
animals. This might be wishful thinking, however, considering that child
abuse continues at an alarming rate despite the unquestioned responsibility
parents and guardians have for the welfare of their children.

Strong criticism of the policy shift has emerged from seemingly unlikely
sources. In May 2003, for example, the Executive Board of the American
Veterinary Medical Association (AVMA) approved a position statement opposing
guardianship language. The official AVMA position reads:

"Ownership vs. Guardianship:

"The American Veterinary Medical Association promotes the optimal health and
well-being of animals. Further, the AVMA recognizes the role of responsible
owners in providing for their animals' care. Any change in terminology
describing the relationship between animals and owners does not strengthen
this relationship and may, in fact, diminish it. Such changes in terminology
may decrease the ability of veterinarians to provide services and,
ultimately, result in animal suffering."

The Board of Directors of the American Kennel Club (AKC) adopted a similar
resolution in 2003, stating in part that, the "AKC believes that the term
guardian may in fact reduce the legal status and value of dogs and thereby
restrict the rights of owners, veterinarians, and government agencies to
protect and care for dogs. It may also subject them to frivolous and
expensive litigation. The term guardian does nothing to promote more
responsible treatment of dogs."

Similar opposition has been voiced by groups including the Cat Fancier's
Association, the Pet Industry Joint Advisory Council, the National Animal
Interest Alliance, the Responsible Pet Owners Alliance, and the American
Veterinary Medical Law Association. Equine organizations appear to have
remained silent to this point.

"What's the problem?" you might reasonably ask at this point. Anything that
makes people more conscious of the fact that animals are not a disposable
commodity and should not be abused must be a good thing. What could go
wrong? So far, nothing.

Laws in Rhode Island and in the cities that have adopted guardianship
language appear to allow "owner" and "guardian" to be used interchangeably,
with the same rights and obligations attached to each. None of the revised
laws have been in force long enough to know for certain whether the change
is cosmetic or substantive. There is no doubt, however, that such mixed
usage fails to recognize that owner and guardian have legally distinct, and
very different, meanings.

The owner of property, according to Black's Law Dictionary and an enormous
body of legal precedent, has the right to "enjoy" the property, and to "do
with it as he pleases, even to spoil or destroy it, as far as the law
permits." It is this bundle of rights, and the potential for harm, that make
necessary laws that recognize the unique status of animals and that protect
them from cruelty, abuse, and neglect.

A guardian, on the other hand, is a horse of an entirely different color.
Strictly speaking, again according to Black's Law Dictionary and the courts,
a guardian is a person who has both the legal right and legal responsibility
to take care of another person who is incapable of taking care of himself or
herself. Adults who are incompetent for some reason and minor children are
examples of individuals who require guardians. The subject of a guardian's
care is the guardian's "ward."

A guardian also might have a fiduciary duty to the ward, which simply means
a legal responsibility to act in the ward's best interest, even at the
expense of the guardian's interests. Guardians and owners, in other words,
are fundamentally different, mutually exclusive entities. Owners own
property, guardians protect the rights of incompetent individuals, and a law
that uses the terms interchangeably is a legal contradiction.

The potential ramifications of this clear legal distinction between "owner"
and "guardian" are enormous. Assume, for a moment, that "guardian" is not
merely another name for "owner," and that a person actually can become the
guardian of an animal in the strict legal sense. Implicit in this assumption
must be the fact that the object of the guardian's care and responsibility,
an animal, now becomes the guardian's ward, with associated legal rights
that must be protected.

Any meaningful change in status from an animal owner to an animal guardian
must, at some point, also encompass a change in the status of the animal
from property to ward. Under the current state of the law, which recognizes
only property and persons, the animal thus would assume the same legal
rights as a child or incompetent adult.

If an animal is someone's property, the animal can be bought and sold, a
simple legal transaction that results in a change of owner. If, on the other
hand, the animal has the legal status of a ward with rights that must be
protected, it is difficult to imagine a situation in which the animal
legally could be sold (or even given away) by its guardian. Animal adoptions
also would become far more complicated and expensive.

Under current law it is possible, in some situations, to justify the
euthanasia of an animal for economic reasons, such as an illness requiring
lengthy and expensive veterinary care. Euthanasia in this circumstance no
longer would be an option if the caretaker is a guardian and the animal
enjoys the legal status of a ward.

It also is easy to imagine an argument that it is not in the best interest
of a Thoroughbred to be raced as a 2-year-old, or at all, or that dogs
should not be exhibited at shows or used in field trial competitions, or
that zoos violate the rights of their inhabitants. Commercial animal
breeding in any form certainly would violate the legal rights of an animal
ward, as would human consumption of animals for food and the use of animals
in medical research.

These scenarios might sound quite far-fetched, and the possible outcomes
might not be obvious consequences of the seemingly innocuous substitution of
one word for another in a few laws. Nevertheless, a dramatic restructuring
of the human-animal relationship is the stated agenda of some animal rights
activists. Whatever your opinion on the status of animals, your support of,
or opposition to, the guardian movement should be an informed choice, based
on fact rather than supposition.

Courts frequently use the phrase "slippery slope" to describe a course of
action that, once it is started, cannot easily be halted. Depending on how
lawmakers and courts eventually interpret the true meaning of an animal
guardian, the movement toward animal guardianship might be such a slope.