Of persons and the criminal law: (Second tier) personhood as a prerequisite for victimhood

This article examines the implications of the Michael Vick case for the criminal law in general and for the law of victimhood in particular. It takes as its point of departure the NFL star's agreement to pay close to one million dollars to the various entities that assumed custody of the pit bulls in order to "make restitution for the full amount of the costs associated with the disposition of all dogs" that were involved in his illegal operation. According to the agreement, the authority to order such payments stems from 18 U.S.C. ý 3663, which allows for the issuance of orders of restitution to victims or other persons harmed by the commission of the offense. The trial of Michael Vick illustrates how our current criminal laws increasingly treat non-human creatures as "victims," with all of the consequences that this entails, including the possibility to order that restitution be paid to the animals. Some criminal law scholars would argue that this approach is profoundly misguided, given that the criminal law should only aim to safeguard the rights of humans. In this article it will be contended that this position is flawed because it is grounded on an artificial definition of personhood that mistakenly makes humanhood the constitutive feature of personhood. Although there may be good reasons for considering that an entity's humanhood should entitle her to more protection from the legal system than non-human beings, it does not follow that the lack of such a status should preclude access to the protection of the criminal law. The argument will proceed in four parts. Part I attempts to define the contours of personhood. This is a particularly difficult task, for the meaning of this concept is notoriously ambiguous. Because of the polysemic nature of the term, its discussion frequently invites confusion, particularly in legal circles. It is not always clear whether it is meant to be used as an alternative to "humanhood," as a concept that treats humanhood as a necessary but insufficient condition for personhood, or as a legal term that may encompass beings or entities that are not members of the human race. Ultimately, I will argue that an entity should be considered a person if there are good normative reasons for recognizing that he should be a bearer of rights and obligations, regardless of whether the being is human or not. Part II takes issue with what will be called the "all or nothing" theory of personhood. According to this theory, a being is either a full fledged person or not a person at all. This conception of personhood is normatively unappealing, for it is plausible, and sometimes desirable, to talk about "partial personhood" alongside with "full-blown personhood." This is what I call the "tiered" theory of personhood, which holds that "personhood" is a concept that admits of degrees and shades of gray. According to this theory, beings should be considered "full-fledged" persons if they should be the bearers of all of the rights and obligations that our legal system has to offer. Contrarily, they should be considered "partial" persons if they should only have the privilege to enjoy some of the rights that our constitutional and statutory provisions confer to persons. The tiered theory of personhood is normatively appealing, for we sometimes have good reasons to legally discriminate between beings on the basis of their different constitutive features. Part III proposes four different "tiers" or "levels" of personhood. The first tier of personhood is reserved for born humans and animals that are capable of rationality and self-consciousness, such as chimpanzees, orangutans and gorillas. The second tier is comprised of sentient fetuses and non-human animals not falling within the scope of the first tier. The third tier encompasses living non-sentient beings, such as fetuses that do not have the capacity to feel, embryos and trees and plants. Finally, the fourth tier of personhood includes all non-living entities that should be afforded rights in order to further human interests. The chief example of a fourth tier person is a corporation. Part IV, argues that the fact that certain beings are not born humans should not be an impediment to treating them as victims and as (partial) persons. Since sentient animals and fetuses have the capacity to feel pain, they should have a right to be kept free from the unjustifiable infliction of suffering. If so, it would be sensible to attempt to safeguard such rights by making use of the criminal sanction. Therefore, I will conclude that victimhood depends on second tier personhood rather than humanhood.
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