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Killer Whales in Captivity: Not a 13th Amendment Problem

The views expressed are those of the author and are not necessarily those of Scientific American.


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An animal rights group has sued SeaWorld. Their claim is that SeaWorld should not be holding killer whales in captivity. So far, this is a fairly unsurprising story, and one that may have merit enough to debate. But here’s where the story seems to go off the rails: the argument is that the thirteenth amendment of the US Constitution, which abolished slavery, applies to killer whales. And that SeaWorld’s keeping of captive killer whales violates the whales’ thirteenth amendment rights. According to The Guardian, the suit, which was “filed late on Tuesday in a US district court in San Diego, lists five performing orcas at SeaWorld’s parks in California and Florida – Tilikum, Katina, Corky, Kasatka and Ulises – as the plaintiffs in the complaint.” You might recall that Tilikum was the whale involved in an unfortunate incident in 2010 in which a trainer was killed.

I am not a legal scholar, so I can not comment on whether or not such a lawsuit could be effective. But let me be perfectly clear: the question of whether whales and other cetaceans should be kept in captivity is a discussion worth having. Using the thirteenth amendment as a tool, however, is not only unreasonable, but inappropriate.

It seems like this is a good time to revise and repost an old piece of mine that I originally published in May, 2010, on whether human rights ought to be extended to whales and dolphins:

A recent commentary in Science argues that dolphins should be considered people. Sort of people. Non-human people.

The argument begins with the extreme intelligence of dolphins. They have larger brains than humans, and the ratio of brain to body size for dolphins is greater than that for the great apes. Indeed, dolphins are the second most encephalized animals on the planet, after humans. Encephalization refers to the extent that the brain is folded up onto itself – it is evolution’s trick for increasing the overall size of the brain by increasing its surface area quite a bit without increasing its volume by much. This allows for increases in brain size relative to body size. In the broadest of terms, it could be said that encephalization correlates with intelligence – but that, of course, hinges on what you mean by “intelligence.” The second part of the argument is that the brains of dolphins and similar cetaceans (like killer whales) have spindle neurons which – in humans, at least – are involved in things like emotion, social cognition, and mentalizing, or the capability to discern what others are thinking.

Thomas White, a philosophy professor from Loyola Marymount University, argued that this is what makes a dolphin a person. A non-human person, though. Daniel Bassett explained: “They are alive, aware of their environment, have emotions, have distinct personalities, exhibit self control, and treat others with respect or ethical consideration.”

I’ve got some problems with these arguments. First, I don’t think that we can make ethical or moral judgments about the behavior of dolphins, because it means applying our standards of morality to other animals. For example, it is typical for male dolphins to rape female dolphins. Infanticide is also common in some dolphin populations. How does this bear on dolphin ethics? Does it make them unethical? By human standards, it sure does. But we probably shouldn’t be applying our morals and ethics to other species.

In 2010, the Telegraph further explained White’s argument: “He said that sperm whales have sonars to find fish that are so powerful that they could permanently deafen others nearby if used at full blast. Yet the whales do not use sonars as weapons, showing what Whitehead called a human-like sense of morality.”

Do we know that sperm whales are aware of the potential destructive capacity of their sonar? For example, do they ever actually use their sonar as a weapon, if threatened? And even if it was true that sperm whales could use their sonar as a weapon and still refrain from doing so, what if that is simply the result of an automatic and non-conscious process? In other words, what if their non-use of sonar as a weapon isn’t intentional, but “hard-wired”? Does it still count as morally right? Does morality hinge on explicit decision-making? I do not think we have the answers to these questions, yet.

And then there’s the issue of spindle neurons. Cetaceans and humans diverged in evolution approximately 95.2 million years ago. Dolphins spent millions of years evolving in the oceans, while humans have spent some millions of years evolving on dry land. The function of spindle neurons in our brains and in dolphin brains may be similar, and while researchers are starting to gather evidence that there are structural similarities, this does not necessarily say anything about brain function. Dr. Jacopo Annese of UCSD told Science, “It’s a pretty story, but its very speculative…We don’t know, even in humans, the relationship between brain structure and function, let alone intelligence.” And of course, far less is known about dolphins.

As we figure out better methods for testing animals, more and more species are going to fall into cognitive categories that we used to think were unique to humans. This is not to say that humans are exactly the same as non-human animals (though we are more similar than different), nor is this to say that animals shouldn’t be afforded various protections. But to give them “human” rights or to call them “non-human people” is absurd. “Legal protection for cetaceans?” Sure, I’ve got no problem with that.

Humans have long had a particular fascination with dolphins and whales. As Lori Marino wrote in 2004, “throughout the ages, an enduring mystique has developed around dolphins. Even today some people continue to impute dolphins with mystical abilities such as extra-sensory perception and, in alternative medicine circles, special healing powers.” Are these arguments simply the latest version of this phenomenon?

The argument that whales should not be kept in captivity for the sake of entertainment may be reasonable. The intentions of those who would prevent the use of captive whales in entertainment may be noble. But to use the thirteenth amendment, which abolished the slavery of human beings, as a tool in achieving those ends, is inappropriate at best.

Grimm, D. (2010). Is a Dolphin a Person? Science, 327 (5969), 1070-1071 DOI: 10.1126/science.327.5969.1070-c

Marino, L. (2004). Dolphin cognition. Current Biology, 14 (21) DOI: 10.1016/j.cub.2004.10.010

Image via Flickr/Fremlin

Again, this post is NOT about whether whales should be kept in captivity for entertainment purposes. It is about using the thirteenth amendment as a means to a particular end.

Jason G. Goldman About the Author: Dr. Jason G. Goldman received his Ph.D. in Developmental Psychology at the University of Southern California, where he studied the evolutionary and developmental origins of the mind in humans and non-human animals. Jason is also an editor at ScienceSeeker and Editor of Open Lab 2010. He lives in Los Angeles, CA. Follow on . Follow on Twitter @jgold85.

The views expressed are those of the author and are not necessarily those of Scientific American.





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  1. 1. neuromusic 8:47 pm 10/27/2011

    quote: “Encephalization refers to the extent that the brain is folded up onto itself – it is evolution’s trick for increasing the overall size of the brain by increasing its surface area quite a bit without increasing its volume by much. This allows for increases in brain size relative to body size.”

    Note that this is only relevant to mammals, which have a laminar microstructure to neuronal organization.

    With non-mammals (such as the oh-so-smart African Grey Parrot and corvids), encephalization is not necessary. Because avian brains are organized into nuclei instead of lamina, surface area doesn’t matter and brain size can increase without any folding.

    Also, we have no idea what spindle cells do. Even if they do “do something special”, there could very well be other analogous (or even homologous) cells in non-mammals which perform the same function.

    My basic point being:

    Encephalization and spindle cells are not true predictors of intelligence across the animal kingdom.

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  2. 2. Jason G. Goldman in reply to Jason G. Goldman 9:17 pm 10/27/2011

    @neuromusic: you’re quite right about my mammal-centric description, i should have been more specific. thanks for the clarification.

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  3. 3. Corina 10:07 pm 10/27/2011

    This story is very close to my heart. I don’t believe that PETA truly believes it will win in this lawsuit. It’s more about bringing greater attention to the problem. The fact is, we as humans are the greediest, cruelest and most selfish animal on the planet. But we also have the ability to choose better, to protect, to be kind, to help others. So if some people are offended by the use of a constitutional amendment fine, let’s make a constitution for all life other than the human species. We are only one life form on this planet that harbors millions of different, incredible forms of life. You point out that male dolphins rape female dolphins regularly. If you were a woman you would better understand that this is a “regular” occurrence in the human species as well. Yes, it’s animalistic, yes it’s horrible and yes rape is unfortunately not something that the “intelligent human species” is above. Infanticide is also something that some humans, some cultures do. Sex-selective infanticide is the most common. So if we want to use these two things as a base to lift ourselves up above an “animal”, it makes for an un-sturdy one at best. For too long we have used and abused each other and every single form of life that we come in contact with. We are the only species to do this. So why then does it offend you when some of us would like animals to have anti-slavery rights even if it is with the 13th amendment? We have not proven that we are more special than any other species. At least, not the majority of us. When we realize this and change the direction of our species to one of true stewardship and love towards life in general, then maybe we can earn the right to say that “we” are in fact, intelligent.

    “I’ve got some problems with these arguments. First, I don’t think that we can make ethical or moral judgments about the behavior of dolphins, because it means applying our standards of morality to other animals. For example, it is typical for male dolphins to rape female dolphins. Infanticide is also common in some dolphin populations. How does this bear on dolphin ethics? Does it make them unethical? By human standards, it sure does. But we probably shouldn’t be applying our morals and ethics to other species.”

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  4. 4. KirstenMassebeau 10:38 pm 10/27/2011

    I wish the author could explain to the reader how it is shameful to consider a dolphin a non-human person?

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  5. 5. BrendyL 11:06 pm 10/27/2011

    YOUR COMMENT ~ “I am not a legal scholar, so I can not comment on whether or not such a lawsuit could be effective. But let me be perfectly clear: the question of whether whales and other cetaceans should be kept in captivity is a discussion worth having. Using the thirteenth amendment as a tool, however, is not only unreasonable, but offensive.”

    I am not a legal scholar either…..but if a CORPORATION can be a person why can’t a whale be a slave!!!!!!!!!!!!

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  6. 6. lillyv19 12:40 am 10/28/2011

    “I’ve got some problems with these arguments. First, I don’t think that we can make ethical or moral judgments about the behavior of dolphins, because it means applying our standards of morality to other animals.”

    Don’t we apply our standards of morality to other animals every day? Most humans think it is morally O.K. to capture and hold animals, not to mention torturing them for human gain. Your line of reasoning should lead to the end result that humans should allow dolphins and other intelligent animals to live their lives freely without the imposition of human morals. The truth is, humans make decisions on the behalf of animals all the time.

    I don’t understand why using the Thirteenth Amendment in the absence of other useful legislation is “offensive” and “shameful”. It is obvious that dolphins are intelligent beings and more research needs to be done to characterize this intelligence, however I would have liked to read more about your reasoning as to why it is so offensive to apply human laws to animals we have been profiting from for decades.

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  7. 7. jasongoldman 12:56 am 10/28/2011

    @lillyv19: “Don’t we apply our standards of morality to other animals every day?”

    I think you’re confusing the positions of “moral patient” and “moral agent.” In other words, the sentence that you excerpted from my piece did not concern whether or not we should treat cetaceans in any particular way (the “moral patient”). In fact, nowhere in my piece did I make any claims about how we should treat cetaceans or any other animals, and I did this intentionally. Instead, I focused on whether this is a reasonable means of achieving the goal of disallowing the captivity of cetaceans.

    That sentence of mine that you quoted is in response to White’s argument that cetaceans behave ethically (that they are “moral agents”) – whether they are capable of moral behavior, themselves. What I am arguing is that we can’t judge the behavior of a non-human animal based on what we consider right or wrong for human behavior. I do not think this is particularly controversial.

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  8. 8. texdig 1:02 am 10/28/2011

    Definition: A person (plural: persons or people; from Latin: persona, meaning “mask”)[1] is a human being, or an entity that has certain capacities or attributes strongly associated with being human.

    I would think the very eloquent argument presented by Jason should start with challenging that definition. THEN, perhaps, suggest that it is ‘silly’ to assume the constitution is for anybody other than ‘humans’ …not for humanoids …then let it go. Enough!
    To call it ‘absurd’ pushes the idea that the rights of whales are not worthy of considering from the perspective of living we ascribe in the constitution. Well, all right then. Go ahead and call it absurd. We are vastly superior to all animals regardless of their intelligence, so they can’t possibly be protected by the same laws that protect us. EXPANDING on that attitude, let’s go ahead and describe this application of the constitution as ‘shameful’ while we’re at it.
    Utterly S-H-A-M-E-F-U-L !!!

    WAIT! Can it actually be a SHAMEFUL DISGRACE to interpret ‘person’ as non-humans? To attack the notion with such eloquence and fervor that others concede and never mention the shameful and hideous incident again? What exactly is the reward that is strived for here in labeling this act as SHAMEFUL? Will we be able to hold our heads higher in smug satisfaction if we can heroically dismiss the whole thing? Well, ok … I like being smart and smug as much as the next guy. So ONLY WE can be people! You SHAMEFUL constitution benders find some other way to help whales suffering in their bathtubs. After all, who would want to be associated with thinking the whale deserved treatment equal to us? What a SHAME that would be!!!

    ON THE OTHER HAND…
    Interpreting ‘person’ to be nothing but those with a certain set of exacting genetics would not only overlook part of the ‘person’ definition, but it would put an extra-intelligent, extra-friendly, extra-terrestial that looked and behaved more human than Bin Laden … at full risk of immediate enslavement.
    Would it really be absurd to consider an extra terrestial who looked just like us as a ‘person’? How about a highly intelligent whale being referred to as a non-terrestial ‘person’. Oh, it’s about looks isn’t it? Whales don’t ‘look’ like people so calling them people would again be … SHAMEFUL! You must look like us to be treated equal to us.

    Point is: Please consider describing the use of our good constitution towards the pursuit of righteousness as something other than…SHAMEFUL! I just can’t visualize Lincoln patting the author on the back while saying “thank god you don’t allow interpretation of the 13th to include those big whales that look so different from us! It would be so SHAMEFUL to help them with our own law because, in no time, we’ll be speaking with these super-intelligent whales and they will undoubtedly ask for their freedom. Now we just can’t be guaranteeing them THAT with our constitution … because that would be … ahem … S-H-A-M-E-F-U-L !!!”

    Just how would Lincoln feel? THAT would be a reasonable take on this matter.

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  9. 9. jasongoldman 1:15 am 10/28/2011

    Some commenters seem to find my use of the words “shameful” and “offensive” inappropriate here. They are certainly loaded terms. To that end, I’ve replaced it with a more precise word: inappropriate.

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  10. 10. texdig 1:22 am 10/28/2011

    nope …put it back! I just spent a shameful amount of time addressing it!!!

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  11. 11. Jerzy New 8:46 am 10/28/2011

    Just for the record: the concept of animal rights is self-contradictory. Predators live by killing other animals, so helping killer whale implies inflicting cruelty to its prey animals.

    BTW, I saw a documentary about killer whales, which remarked an observation which for me was truly mind-blowing from the concept of animal mind. Wild killer whales captured in succession several young sealions on the beach, carried each to the deep water, eaten first ones, the last one was not killed but played with and
    – astonishingly – carried back to the shore and released. Not simply abandoned, but actively helped back. This suggests that killer whales understand needs and emotions of their prey, and when not hungry, show a degree of caring or compassion to it.

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  12. 12. Laird Wilcox 3:22 am 10/29/2011

    I can’t believe this discussion. The next thing we know the killer whales will all have lawyers and a new civil rights movement will be born.

    What about the baby seals they eat? Don’t they have rights, too? Now that I think of it, because they’re from a different species there could be some kind of discrimination issue, and because they’re baby seals it could be a children’s rights thing, too.

    Once this thing get’s started there’s no end to it. The baby seals eat baby fish, who eat baby krill, who probably eat baby bacteria, and so on.

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  13. 13. soulus 3:07 pm 10/30/2011

    i do not find this blogger, at least in this article, to have been a “thoughtful animal”. this was a sorely disappointing read.

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  14. 14. soulus 5:51 pm 10/30/2011

    why should freedom from enslavement only apply to humans? that is the point the lawsuit is trying to make by using the 13th amendment. it is being used symbolically, not literally, to make a point, which is sadly being missed by many…

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  15. 15. Quinn the Eskimo 12:35 am 10/31/2011

    A larger question; if I may.

    If this effort is successful, and whales are emancipated, where does that end?

    Are my four cats (not allowed to go out, thoroughly house cats) sentient beings? What about your dogs?

    I smell an ACLU full-employment effort here.

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  16. 16. soulus 3:56 pm 10/31/2011

    the lifestyles of orcas and domestic cats differ greatly. some lifestyles of animals we can accommodate fairly and happily [i have two cats and freshwater fish].

    it is easy to see how an orca’s life is greatly hindered by captivity. however, “captivity” has a different note to it when applied to rescue operations… [i realise too that you can't just release captive animals back into the wild, but that's not the point of this discussion.] it is a huge and delicate issue that needs addressing…but i think the main point is that no wild creature should be captured for humanity’s purposes, whatever they may be.

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  17. 17. tiwhite22 4:50 pm 10/31/2011

    I always find it disappointing when references to my work are made by people who obviously have not read my book (IN DEFENSE OF DOLPHINS: THE NEW MORAL FRONTIER), in which I lay out the full argument. All I want to say here is that, from a philosophical perspective, “ethical” judgments about actions relate to whether or not those actions promote or prevent the satisfaction of a series of basic needs required for the full development of the beings involved. This is not a matter of applying “human” standards. It’s a question of looking at the appropriate, species-specific standards.

    Ethical dilemmas invariably consist of the clash of one group’s needs versus another’s. The practical problem is how to handle that clash.

    The scientific research on the cognitive and affective abilities of whales and dolphins makes a strong case for regarding them as “nonhuman persons” who have what philosophers refer to as “moral standing” as individuals. Self-awareness is a critical ability in this matter. At the very least, such beings should not be regarded as “property.”

    Rigorous ethical analysis is as technical a matter as rigorous scientific analysis. It is not a matter of how one “feels.” In the same way that I encourage my philosophical colleagues to spend time in the field with scientists and to steep themselves in the relevant scientific literature, I also encourage scientists to acquire greater technical sophistication regarding the discussion of ethical issues.

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  18. 18. BrainWorld 11:25 am 11/1/2011

    At some point in the continuum of increasing intelligence there must come a demarcation where that intelligence is treated “as if” it were human.

    The trouble is we have difficulty determining intelligence in other creatures because we have not yet learned how to do a good job of it. Seems to me that should be our problem, and not the problem for other sentient life.

    If we are ever going to call ourselves civilized we will first have to recognize that all sentient life is deserving of as much respect and right to live freely and unmolested as any human.

    I think we have a long way to go, as evidenced by billions of meat-eating barbarians.

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  19. 19. publicitypunk 2:52 pm 12/5/2011

    GREG MAY of Orlando, FL says: “In September 2011 the Miami Seaquarium celebrated its’ 56th year of operation. Also that month, ‘Lolita’ – their Killer Whale – celebrated 41 years at the Seaquarium. For an ocenarium to maintain an orca for that long only shows that marine mammals receive the best of care in captivity. Read about ‘Lolita’ at: http://www.florida-backroads-travel.com/lolita-the-killer-whale-miami-seaquariums-little-girl.

    Link to this

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