For the first time in US history, a judge has granted two chimpanzees a petition – through human attorneys – to defend their rights against unlawful imprisonment, allowing a hearing on the status of “legal persons” for the primates.



On Monday, Manhattan supreme court justice Barbara Jaffe granted a writ of habeas corpus on behalf of two non-human plaintiffs, Hercules and Leo – chimpanzees used for medical experiments at Stony Brook University on Long Island. On Tuesday afternoon she struck the words “writ of habeas corpus” from the order, in order to clarify that she had not meant to imply the chimpanzees have legal person status.

In her original order, Jaffe ordered Samuel Stanley Jr, the president of Stony Brook, to argue before the court why the chimpanzees were being “unlawfully detained” at his university and should not be transferred to a primate sanctuary in Florida.

The attorneys who brought the petition forward, part of the Nonhuman Rights Project (NhRP), argued – before the judge struck the words – that under New York law, “only a ‘legal person’ may have an order to show cause and writ of habeas corpus issued in his or her behalf. The court has therefore implicitly determined that Hercules and Leo are ‘persons’.”

After the amendment to the order, NhRP adjusted its stance, noting “these cases are novel and this is the first time that an order to show cause has issued. We are grateful for an opportunity to litigate the issue of the freedom of the chimpanzees.”

“This is one step in a long, long struggle,” said Steven Wise, the lawyer leading the effort, before Jaffe amended her order. “She never says explicitly that our non-human plaintiffs were persons but by issuing the order … she’s either saying implicitly that they are or that they certainly can be. So that’s the first time that has happened.

“It feels great. We knew it was going to happen sometime,” he added. “Even though we’re scattered all around the country we all gave each other a high five over the phone.”

A spokesperson for the judge denied that she had implied personhood to the chimpanzees. “She did not say that a chimpanzee is a person,” David Bookstaver told the New York Daily News.

“She just gave them the opportunity to argue their case.”

Habeas corpus petitions are used, in theory, to fight unlawful imprisonment by forcing a custodian to prove they have legal cause to detain someone.

Wise’s argument in this case and others is that chimpanzees are intelligent, emotionally complex and self-aware enough to merit some basic human rights, such as the rights against illegal detainment and cruel treatment. They are “autonomous and self-determining”, in Wise’s words.

He said he suspects that Eric Schneiderman, who will represent Stony Brook as attorney general of New York, will argue that “Hercules and Leo are things and that they’re not persons, and that’s where the battle lines are drawn. Are they persons or are they not persons?”

Schneiderman may also draw from past rejections of Wise’s petitions. In one failed bid to remove another chimpanzee, Tommy, from captivity in a trailer in Gloversville, New York, an appeals court argued that chimpanzees do not participate in society and cannot be held accountable for their actions.

“In our view,” the judges wrote, “it is this incapability to bear any legal responsibilities and societal duties that renders it inappropriate to confer upon chimpanzees the legal rights … that have been afforded to human beings.”

In another decision, a separate appeals court argued that taking a different chimpanzee, Kiko, to a sanctuary amounted to another form of imprisonment, and that habeas corpus amounted to an inappropriate remedy.

NhRP hopes to move the chimpanzees to the Save the Chimps sanctuary in Fort Pierce, Florida, where more than 250 chimps live on a series of islands along the Atlantic coast.

Kathy Hessler, a professor of animal law at Lewis & Clark law school, told the Guardian that Wise’s burden is to prove chimps are “enough like a human that the legal system should take notice”.

Opponents of Wise’s fight for limited rights for chimpanzees warn that the judge’s granting of the petition does not mean she endorses “personhood” for chimpanzees. Richard Cupp, a law professor at California’s Pepperdine University said “we should avoid reading too much into this document ordering a hearing.”

“It seems quite unlikely that a judge would intend to make such an exceptionally controversial decision that a chimpanzee is a person without even hearing arguments from the other side,” Cupp said. The suggestion that nonhuman animals are persons is “new terrain for judges”, he added.

Cupp and others argue that chimpanzees may deserve greater protections, but not rights. “No one should ever regard animals as if they were stones,” Richard Epstein, a New York University law professor told the Guardian last year, but he said that Wise and his cohorts go too far into a labyrinth of questions about what separates humans from nonhuman animals.

NhRP has appealed against the decisions in Kiko and Tommy’s cases, and its next hearing on behalf of Hercules and Leo is scheduled for 27 May.

This article was appended to reflect Justice Jaffe’s amendment and the changed statement of NhRP on 21-22 April.