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Wednesday, Aug. 29, 2001

On February 11, 2000, Sara McBurnett went driving with her 10-year-old dog, Leo, near the San Jose International Airport in Northern California. It was raining, and traffic was heavy. A man driving a sports utility vehicle cut McBurnett off. Her car then bumped into his. According to witnesses who saw the minor collision, the man promptly stormed out of his vehicle and approached McBurnett's open window. He then reached into her car, grabbed her dog from her lap, and threw him into the path of oncoming traffic.

The dog was immediately run over by a car, and he died right in front of McBurnett. Of her loss, she said: "Words can never convey the depth of love I had for my dog, Leo." She added that "[f]or me, it was my child. He killed my baby right in front of me."

Punishing Animal Cruelty

The man who did this was Andrew Douglas Burnett. Though he evaded capture for many months, he was ultimately identified as the perpetrator while in jail on unrelated charges. On July 13, 2001, he received a sentence of three years imprisonment for felony animal cruelty.

Some reporters who covered this story described it in tones of frivolity and amusement. They apparently enjoyed the change of pace from their usually more serious crime reporting.

Other writers expressed the view that for a person to be sentenced to prison time for killing what is "only a dog" was a sign of animal rights activists run amok. A friend of mine, for example, was incredulous about the harshness of the sentence. He wondered aloud whether the punishment would have been so severe if the defendant had destroyed some "other form of property" such as a watch or a car ornament.

My friend's question itself points to a fundamental flaw in our legal system: the "property" status of animals. This status gives rise to what would otherwise be a bizarre and counterintuitive analogy between a sofa or a coffee table, and a dog.

Animals as Property

Animal cruelty laws, of course, are based upon the obvious distinction between a living, breathing, sentient animal and an inanimate and unfeeling piece of property. The law's classification of animals as property, however, leads many to disregard animals' interests and, accordingly, to view their use and abuse as acceptable. That anyone could be "shocked" or outraged that Burnett was sentenced to prison shows how effectively the "property" title blinds us to reality.

Classifying and describing something as "property" implies that it has no independent or self-derived interests or value. For example, if I throw out what my mom would call "a perfectly good lamp," rather than finding a new owner for it, I have not done any injustice to the lamp. Rather, if there is injustice in my actions, it is in depriving potential users of the benefits of the lamp.

I might therefore choose to donate my lamp to charity rather than throwing it into the trash. But that choice would come from a desire to avoid wasting a resource that could enhance the life of another person. The interests of the lamp simply do not (and should not) enter into it. To suggest otherwise would be to engage in "anthropomorphizing" the lamp.

Anthropomorphizing: An Often-Empty Term

I place quotations around the word "anthropomorphizing" because it is a highly overused word. It generally refers to the mistaken attribution of human characteristics to an entity that lacks such characteristics. Many use this term dismissively when they hear of anyone referring to animals as having thoughts or feelings or wishes. In fact, however, attributing human characteristics to animals is often descriptively accurate.

If a person walking a German Shepherd remarks, "He gets jealous when I pat another dog," someone nearby is likely to smile condescendingly and ask, "Don't you think you might be anthropomorphizing?" As anyone who is actually familiar with animals knows, though, jealousy is hardly unique to human beings. Indeed, very little that we treasure as uniquely human is. Yet our legal regime, which classifies a dog (or a chimpanzee) as "property" invites people to think of animals as objects — and to treat them accordingly.

I read last week of a woman who gave up her cat. The reason, by the woman's own account, was that after her house was painted, the cat's eyes no longer matched the décor of her home. This woman apparently thought of a cat as no different from a carpet.

In fact, animals seem to many to be property simply because we have always classified them that way. Under our laws, the destiny of animals belongs largely to their owners.

Animals As Inherently Valuable

It is no doubt true that those of us who are fortunate enough to have non-human animal companions at home derive joy and satisfaction from their existence. This joy may in fact have motivated us to "acquire" them in the first place. The desire to expand one's family rarely proceeds from purely altruistic impulses. A dog "owner's" pleasure, however, is not what gives value to a dog, any more than a baby's value depends on his having parents who appreciate and adore him.

Sentient creatures have value in their own right. As philosopher Jeremy Bentham said of animals: "The question is not, Can they reason? nor, Can they talk? But, Can they suffer?" A living creature that is capable of pain and pleasure is entitled to our respect and to protection from our abuses. This is true whether or not that creature is human.

These simple facts about animals may have what many would view as disturbing implications for human practices. If animals do not exist for human beings to own and exploit, then is it not wrong to harm or kill animals for food, clothing, and medical experiments? The position that it is indeed wrong may strike many as preposterous, because the use of animals is so routine and commonplace — even the Bible embraces it.

My colleague, Professor Gary Francione, has argued eloquently, however, that the use of animals for human benefit is unjustified in all of these contexts. His highly readable book, Introduction to Animal Rights: Your Child or the Dog?, is thought provoking and difficult to dismiss. It claims that using animals as resources to serve human needs is wrong for some of the same reasons that slavery is wrong. The argument is powerful and should make those of us who eat meat far less complacent about doing so.

Regardless of whether or not one adopts Francione's position, however, there should be no question that harming animals to let off steam, or otherwise hurting them gratuitously, is culpable and should not be tolerated. Thus, the woman who abandoned her cat for having the "wrong" eye color should be faulted for doing so. Her action, though not illegal, was immoral. And punishing Burnett severely, seen from this perspective, was entirely proper.

Animals Are Entitled to Legal Protection

Sara McBurnett suffered terribly when she lost her dog, Leo. Someone who had enthusiastically welcomed her love and who loved her back is gone forever. Burnett's crime therefore caused unnecessary and intense pain to a human being. But because a dog is not a couch or a bookcase, the evil of what Burnett did extends beyond his having harmed a human being.

It was rightly Burnett's crime against Leo — and not only Leo's "owner"— that earned the defendant a three-year sentence. As the sentencing judge stated, Burnett's crime involved "a high degree of cruelty, viciousness and callousness." Though some have questioned the reasonableness of imprisoning a person for cruelty to "property," it is the classification of animals as property, and not the legal system's rare decision to protect them from harm, that flies in the face of reason.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark. She and her husband share their home with two dogs.

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