The story of Justice v. Gwendolyn Vercher began with a woman named Vercher neglecting her horse, named Shadow at the time. In Vercher’s care, Shadow starved and froze, was colonized by lice and harmful bacteria, experienced prolapsed genitals, and shrunk to 300 pounds underweight. Vercher subsequently pleaded guilty to criminal animal neglect under Oregon law. After the criminal plea, the Animal Legal Defense Fund (ALDF) took an unusual step. It brought a civil suit on behalf of the quarter horse, now named Justice, against his convicted former owner, seeking damages for negligence per se, seeking money that would enable someone who adopted Justice to pay the ongoing and enormous veterinary bills that resulted from Vercher’s conduct. This column will consider the question whether there is value in naming an animal like Justice a plaintiff in a civil suit.
Opponents
Opponents of Justice’s capacity as a plaintiff make several arguments. First, some say, Justice is not a person, and only persons can bring lawsuits. Being a person means being able to bear not only rights but responsibilities as well. Justice, however, bears no responsibilities under the law. Second, opponents ask rhetorically, if an animal can bring a lawsuit, then what is to stop all of the animals on farms, in aquariums, in zoos, and in laboratories from bringing suits against their owners as well? To paraphrase one opponent, if animals are persons, then we can’t eat them. Third, some point to the fact that animals do not need to be plaintiffs in lawsuits to receive protection from cruelty or to be able to collect for their veterinary care. To pursue plaintiff status for animals is thus to press a radical and unnecessary animal-rights agenda.
Responses to Opponents
The foregoing contentions can usefully frame the case for Justice as a plaintiff.
First there is the personhood claim. Animals are not the sorts of creatures that can bring lawsuits. This argument contains at least two separate ideas. One is the notion that laws do not contemplate that someone like a horse could bring a complaint. Second is the idea that only those who can respect others’ rights are entitled to rights of their own.
In response to the first personhood objection, it is not clear that animals are the wrong sorts of creatures to bring lawsuits. In the anti-cruelty statute under which ALDF is suing on Justice’s behalf, animals can be victims of abuse and are the intended beneficiaries of the law prohibiting abuse. One could imagine an animal-cruelty law that existed to further only human interests and helped animals as a mere side effect. Such an approach would well characterize an animal cruelty law resting on Kantian principles. Immanuel Kant said there is nothing wrong with hurting nonhuman animals aside from the impact of such behavior on humans, such as by coarsening our character toward other humans. For that sort of law, an animal would be the wrong plaintiff, just as it would make little sense for my house to sue the city for breaking down my door. The point of laws that protect my house is to guard my right to property, so I, not the physical structure of my house, must bring suit in the event of a violation.
The animal cruelty law in Oregon, however, regards animals as relevant victims of cruelty crimes. The purpose of the law, in other words, is not just to protect people’s property interest in their animals (evident in the fact that abusers, as in Justice’s case, can be the animals’ owner). To say Justice is the victim is logically to suggest that he is the one to whom the perpetrator owes damages for the abuse. And allowing him to sue is simply another way of stating that the law recognizes him as a living being to whose protection the law extends.
And the second “personhood” contention, that rights imply responsibilities, is simply untrue. Babies and children can be victims in our society, qualifying for legislative protection and even constitutional rights. Yet babies are even more incapable than horses of fulfilling responsibilities to anyone. And the same is true for the intellectually disabled and incompetent among us. For each of these individuals, as for Justice, adult humans must represent them if someone is to argue for the protection of their rights. Yet no one would suggest that because an infant cannot make responsible choices, it follows that he has no right to sue for brutality and cruelty. We therefore do not ordinarily demand responsibility as a condition for recognizing a right to sue, and there is no reason to demand as much here, when the rights of a horse are at stake. Horses possess whatever capacities entitle infants to rights. Indeed, as Jeremy Bentham observed, “a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal than an infant of a day, or a week, or even a month old.”
Next we have the slippery slope argument. If Justice can sue, what is to stop the cows and other animals undergoing cruelty and slaughter on farms across the nation from suing? Opponents of a right of Justice to sue appear to be arguing that if we do the right thing today, we might be expected to do the right thing tomorrow and the next day as well, so we must not do the right thing today. The argument bespeaks what the late Justice William Brennan, in a different context, termed “a fear of too much justice.”
If granting Justice the right to bring a lawsuit to enforce his rights is consistent with the law and with justice, the law ought to do it. If it turns out that other animals, those whose status may be more precarious than Justice’s, are also entitled to sue, then we ought to recognize that entitlement when the time comes. If their cases are distinguishable, on the other hand, then that too can emerge when we give a thorough airing to those cases.
A different version of the slippery slope argument expresses a reductio ad absurdum: allowing the horse to sue would entail allowing the cow to sue; the cow obviously should not be able to sue or there would be billions of lawsuits by animals; and therefore no one could have meant to permit the horse to sue. The worry, then, is not only that ruling in favor of a horse’s suit would eventually lead us down the primrose path. It is that because the logic of granting a horse legal standing inexorably leads us to an “absurd” result (regarding cows), it follows that the initial step along that path would be wrong as well.
The answer to this objection may well be the same as the answer to the other version of the slippery slope: if what happens on farms violates the law, then those who run animal farms will have to stop doing what they are doing. It is not, in other words, obviously absurd to suggest that the cow should be able to sue. I understand that giving farmed animals standing to sue is a “big ask” and will not likely come to pass anytime soon. Nonetheless, the argument in the case is not about whether the things we do to cows are cruel under any sane definition of cruelty, though they plainly are. The argument is that whatever we think the law means, it gives rise to a right of action by the victims of its violation.
In other words, there can be no slippery slope from the horse’s plaintiff status to the cow’s unless one determines independently that the cow is in fact the victim of cruelty under the law. It would be that determination, and not the animal’s standing to sue, that would give rise to the outcome that worries some critics, namely that plaintiffs cannot be eaten. What does the work is the legal meaning of cruelty, abuse, or neglect, and not the identity of who gets to sue.
The last counterargument is about necessity. It is unnecessary to give Justice the ability to sue his former owner. The law could instead provide that those who perpetrate abuse or neglect must pay for veterinary care the need for which results from that abuse or neglect. The law could, without endowing anyone outside the human species with the right to sue, simply say that perpetrators must cover injury-related expenses for their victims.
This grievance seems to largely miss the point of those arguing for animals’ ability to sue under the statute. The purpose is to give voice to the understanding that sentient beings such as Justice are the actual victims of animal cruelty. The idea is that animal cruelty laws do not serve mere aesthetic ends, like signs telling people not to walk on the grass around a public building. In Oregon animal cruelty is like any other abuse, something that implicitly recognizes the entitlement of a sentient living creature to freedom from torture. Granting standing to bring a lawsuit cogently highlights that entitlement.
Justice lost his case in the district court and is currently awaiting appeal. It is difficult to be optimistic when those in charge of deciding cases remain as invested in cruelty toward and exploitation of animals as most people are in our society. Yet efforts to do what is right and what the law reasonably supports, notwithstanding the resistance they encounter, is what genuine advocacy with integrity looks like. It is the pursuit of justice that Justice deserves.