Will Tillikum, The ‘Killer Whale,’ Get Standing & His Day In Court?

Remember Tillikum? Back in 2010 I likened this proud mammal, at 6 tons and 22 feet long, the largest orca whale in captivity, to Spartacus. Tillikum was kidnapped by whale-slavers off Iceland at the age of two in 1983. Deliber­ately starved as part of his “training” in a Sealand tank in Victoria, Canada, Tillikum has spent the past 19 years in Seaworld, Orlando Florida. The whale has been involved in three lethal onslaughts on his captors, the most recent being an attack on Dawn Brancheau, a trainer he dragged into his tank and drowned in February of 2010.

Why was Tillikum spared? Big whale, big money. There’s a lot riding on the slave orcas toiling away, giving as many as eight performances per a day, 365 days a year, as the star attractions in each of the Shamu stadiums. Tilli­kum’s asset value is enhanced by his duties as a sperm donor. He’s a breeding “stud” often kept in solitary, away from the other orcas, and has fathered 13 orcas.

The Occupy Wall Street movement should raise plac­ards in support of Tillikum and his fellow orca slaves: Sea­World got its start in the mid-1960s, and after various ups and downs, in the late 1980s the three SeaWorlds, in San Diego and Orlando, passed into the hands of the vast brew­ing conglomerate Annheuser-Busch which pumped mil­lions into upgrades, finally selling the theme parks for $2.7 billion in 2009 to the Blackstone Group, a merger and acqui­sitions group cofounded by the odious Pete Peterson and Stephen Schwarzman, formerly of Lehman and Kuhn-Loeb. Blackstone, one of the world’s largest private equity investment firms is at the crossroads of crony capitalism, where the political and financial elites engorge and devour. It has been one of the largest investors in leveraged buyout transactions over the last decade, with huge operations in commercial real estate.

Last week People for the Ethical Treatment of Animals (PETA) filed a lawsuit against SeaWorld for “enslaving” five orcas. Tillikum is one of the plaintiffs. PETA’s suit invokes the 13th Amendment, abolishing and prohibiting slavery, and demands the orcas’ release under the Amend­ment’s terms. “All five of these orcas were violently seized from the ocean and taken from their families as babies,” says PETA’s president Ingrid Newkirk, echoed by PETA’s lawyer, Jeff Kerr who told AP, “By any definition, these orcas are slaves — kidnapped from their homes, kept con­fined, denied everything that’s natural to them and forced to perform tricks for SeaWorld’s profit.” Kerr added that the 13th amendment does not refer to a specific species.

SeaWorld, denies the charges.

For those who think the references to slavery and use of the 13th Amendment are excessive, remember the words of Frederick Douglass, the great abolitionist and former slave. Douglass often made direct comparisons between the treat­ment and use of other animals and that of himself. “When purchased, my old master probably thought as little of my advent, as he would have thought of the addition of a single pig to his stock! Like a wild young working animal, I am to be broken to the yoke of a bitter and life-long bondage. Indeed, I now saw, in my situation, several points of similar­ity with that of the oxen. They were property, so was I; they were to be broken, so was I; Covey was to break me, I was to break them; break and be broken — such is life.”

Will the orcas get legal standing?

Animals currently have no rights recognized in US law, but many groups of lawyers are working to strengthen laws that protect animals and many individuals have successfully brought suit to protect the welfare of animals. Three years ago the DC Law Journal ran a very useful survey by Kathryn Alfisi. Alfisi points out that it was the Michael Vick case “that allowed for just the right atmosphere to push for state and federal legislation that would strengthen dogfighting and animal cruelty laws.” The Philadelphia Eagles quarterback pulled a 23-month sentence after pleading guilty to conspiracy for running a dogfighting ring on his property in Surry County, Virginia.

Some animal lawyers flee the term “animal rights” as too extreme, while others question the whole concept of legal boundaries between animals and humans. Several state bars and the District of Columbia Bar have animal law sections or committees. In 2005 the American Bar Association’s (ABA) Tort Trial and Insurance Practice Section created its Animal Law Committee. Over 100 animal law courses are being taught at law schools across the country.

The legal system, Alfisi reckons, is beginning “to reflect the increasingly complex relationship between people and their pets in our society.”

The phrase “increasingly complex” does the Middle Ages a grave injustice. Just read my CounterPunch co-editor Jeffrey St. Clair’s marvelous introduction to Jason Hribal’s Fear of the Animal Planet: The Hidden Story of Animal Resistance , published last year by CounterPunch Books.

As St. Clair writes, “In medieval Europe (and even colonial America) thousands of animals were summoned to court and put on trial for a variety of offenses, ranging from trespassing, thievery and vandalism to rape, assault and murder. The defendants included cats, dogs, cows, sheep, goats, slugs, swallows, oxen, horses, mules, donkeys, pigs, wolves, bears, bees, weevils, and termites. These tribunals were not show trials or strange festivals like Fools Day. The tribunals were taken seriously by both the courts and the community.”

Humans and animals often ended up in the same courtroom as co-conspirators, especially in cases of bestiality. The animals were given their own lawyers at public expense. “Sometimes, particularly in cases involving pigs,” St. Clair writes, “the animal defendants were dressed in human clothes during court proceedings and at executions.”

“In the province of Savoy, France, in 1575, the weevils of Saint Julien, a tiny hamlet in the Rhone Alps, were indicted for the crime of destroying the famous vineyards on the flanks of Mount Cenis. A lawyer, Pierre Rembaud, was appointed as defense counsel for the accused. Rembaud wasted no time in filing a motion for summary judgment, arguing that the weevils had every right to consume the grape leaves. Indeed, Rembaud asserted, the weevils enjoyed a prior claim to the vegetation on Mount Cenis, since, as detailed in the Book of Genesis, the Supreme Deity had created animals before he fashioned humans and God had promised animals all of the grasses, leaves and green herbs for their sustenance. Rembaud’s argument stumped the court.

“As the judges deliberated, the villagers of Saint Julien seemed swayed by the lawyer’s legal reasoning. Perhaps the bugs had legitimate grievances. The townsfolk scrambled to set aside a patch of open land away from the vineyards as a foraging ground for the weevils. The land was surveyed. Deeds were drawn up and the property was shown to counselor Rembaud for his inspection and approval. They called the weevil reserve La Grand Feisse. Rembaud walked the site, investigating the plant communities with the eyes of a seasoned botanist. Finally, he shook his head. No deal. The land was rocky and had obviously been overgrazed for decades. La Grand Feisse was wholly unsuitable for the discriminating palates of his clients.

“The Perry Mason of animal defense lawyers was an acclaimed French jurist named Bartholomew Chassene, who later became a chief justice in the French provincial courts and a preeminent legal theorist. He argued that local animals, both wild and domesticated, should be considered lay members of the parish community. In other words, the rights of animals were similar in kind to the rights of the people at large.

“In 1642 a teenage boy named Thomas Graunger stood accused of committing, in the unforgettable phrase of Cotton Mather, “infandous Buggeries” with farm animals in Plymouth, Massachusetts. Young master Graunger was hauled before an austere tribunal of Puritans headed by Gov. William Bradford. There he stood trial beside his co-defendants, a mare, a cow, two goats, four sheep, two calves and a turkey. All were found guilty. They were publicly tortured and executed. Their bodies were burned on a pyre, their ashes buried in a mass grave. Graunger was the first juvenile to be executed in colonial America…

“In 1750, a French farmer named Jacques Ferron was espied sodomizing a female donkey in a field. Ferron was convicted and sentenced to be burned at the stake. But the donkey’s lawyers argued that their client was innocent. The donkey, the defense pleaded, was a victim of rape and not a willing participant in carnal congress with Ferron. Character witnesses were called to testify on the donkey’s behalf. The donkey was acquitted and duly released back to its pasture.”

The people of the Middle Ages, dismissed as primitives in many modernist quarters, were actually open to a truly radical idea: animal consciousness.

The animal trials peaked in the late-sixteenth and early-seventeenth centuries, then faded away, done in by the Enlightenment and by Rene Descartes who argued that animals were mere physical automatons. They were biological machines whose actions were driven solely by bio-physical instincts. Animals lacked the power of cognition, the ability to think and reason. At Port-Royal the Cartesians cut up living creatures with fervor, and in the words of one of Descartes’ biographers, “kicked about their dogs and dissected their cats without mercy, laughing at any compassion for them and calling their screams the noise of breaking machinery.” Across the Channel Francis Bacon declared in the “Novum Organum” that the proper aim of science was to restore the divinely ordained dominance of man over nature, “to extend more widely the limits of the power and greatness of man and so to endow him with “infinite commodities.” Bacon’s doctor, William Harvey, was a diligent vivisector of living animals.

Thus in the dawn of capitalism, the materialistic view of history, and the fearsome economic and technological pistons driving it, left no room for either the souls or consciousness of animals. They were no longer our fellow beings. They had been rendered philosophically and literally in resources for guiltless exploitation, turned into objects of commerce, labor, entertainment and food.