The Rights of the Transformed

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Author: ShadowWolf

At its root, the question of whether those born of transformed parents, or those freshly transformed, retain their rights is an argument over whether or not the transformed are 'people'. For a general discussion this would be enough, but for legal purposes the terms used throughout the US federal code – 'person', 'persons' and 'people' must be defined. To help bolster these new definitions of the terms a prior precedent, be it one in the law or in the massive number of cases that make up the so-called 'case law', is needed to make the court's decision on the case more clear-cut. (Since, with almost absolute certainty, this will be decided in courts and not in the legislature)

Given the sheer diversity of body-types possessed by transformed persons in most settings used in transformation fiction, the aforementioned terms must be defined in such a way to distinguish between the transformed and the rest of the (non-human) animal kingdom.The fastest way to do this is by coming up with a simple, easily applied rule, but what should that rule be? Can we base it off genetic heritage? Yes, but then it becomes more difficult to apply as successive generations are born that were never Homo sapiens sapiens – not to mention the problems which may arise as a result of medical gene-modification.

Ideally, we would like some objectively-definable quality that humans share with the transformed, but is not also possessed by creatures we do not want the test to select. So we are left with only one easily applied test to see if the terms used in the U.S.C. (United States federal Code) apply – sentience. But what exactly is 'Sentience'? I, myself, had to actually look the word up to find out. The clearest definition I found was The quality or state of being sentient – but then what is 'sentient'? The same dictionary has this to say: consciously perceiving. Those definitions together are still too vague for any real legal use, so I find myself looking for a way to define 'Sentience' so that it has a clear definition that will not engender lawsuits.

To define the word we need to know the definition as it is commonly used. In general it is used to describe beings that have a capacity to reason, that is, to think. However, all animals with complex enough brains can think. Gorillas have been taught sign language, and often use it to ask for what they want but don't have. Does this mean they are sentient? In a word, no. They lack the capacity to think beyond the current events. So we could say that sentience is that quality embodied by the ability to think beyond the current moment. But this definition is still too vague for our purposes; after all, there are many predators that appear to do this in their hunting. So we take a look at the roots of the word for a hint of how to go and modify the definition to include the meaning it had when before the word entered the English language: The ability to think, plan ahead and feel emotions.

While that definition would seem to apply, we are left with a definition just vague enough that it could be argued your pet dog is sentient. After all, he is a tamed predator, and thus could exhibit those actions that appear to be planning, and you could argue that it feels emotions it gets scared, bored, happy all emotions. So we are left still needing to refine the definition even more. How can we modify it to exclude those animals that would classically be called non-sentient and still be left with a definition that could be applied to species of sentient beings besides Homo Sapiens Sapiens? We can specifically exclude those actions that science classifies as instinct. At this point we have a definition that can be clearly applied to humans and beings with human-like mental characteristics: An ability to think, plan and feel emotions that is not based on patterns transmitted via genetics.

This definition will clearly raise flags with anyone who has ever seen Star Trek: The Next Generation: It completely discounts those beings that are demostrably sentient but do not have emotions in a form that we would recognize, if they have them at all. A refinement to remove the 'emotions' clause could help clear up the problem. However that would still leave a gaping hole: Machine Intelligence. At the current time we are capable of building machines that can process trillions of floating point math operations in a second, and that are even faster with integers, but we have not figured out how to make a machine sentient. Since I have no doubt that someone will one day find a way to create a sentient computer, I strongly feel that this final refinement is necessary. What we wind up with after all of this work is a definition of 'sentient' and 'sentience'. 'Sentience', in the end, is defined as 'Able to think and plan beyond the effects of instinct or programming'; and 'sentient', in true minimalist fashion, is simply 'displaying or possessing that quality referred to as sentience'.

And now we have a way to redefine the terms 'person', 'persons' and 'people' such that they refer to an easily identifiable group of beings.

This is, as I have noted, necessary so that there are ways to prove that the law applies to a transformed person or any of their offspring. The terms, though, are still undefined, so lets think about the current definitions and just make sure our simple test is included in the new definition.

What we wind up with is:

Person:

A single sentient being

Persons: A group of sentient beings
People: A generic term referring to all existing sentient beings

But the court system would want some form of proof that the law has already been applied in some form to other-than-human beings. For this we need to search the entirety of the laws in all the states, the laws of the District of Columbia and the federal code. What we find is very sparse, but there are some situations covered by the law where a living, non-human entity is covered by the law. It's necessary to specify 'living' because the law considers businesses and corporations to be non-human persons.

Among these situations are those places where people are able to bequeath huge fortunes -- in trusts -- to their pets. Where in the state code this is located varies from state to state, and not all states provide for this, but the set of laws being adopted by many states are closely related. As a matter of fact, they are all the same – the code is called the "Uniform Trust Code" and the "Uniform Probate Code". However, these laws do us no good, as they cover the creation of a limited timespan trust for the animal, and do not offer it legal status otherwise. And while there is other litigation pending, including a set of proposed laws to extend basic human rights to Apes, none of it has yet made it into law, and therefore is of relatively minor use in this situation.

This leaves us needing to find another way to prove to the courts that a transformed person or a descendant of a transformed person should be considered equal to any given member of Homo sapiens sapiens under the law. For this we have two choices; we can either argue that anarchy is the inevitable result if the law does not apply to them, or we can argue that the Civil Rights codes, as they stand, are already worded such that they apply to the transformed and their offspring.

First, think about the anarchy argument. While it seems compelling at first – all the more so if you argue that someone could go get transformed to escape prosecution – in practice, what happens are a collection of knee-jerk laws. These laws could range from simple clarifications that anyone who gets transformed to escape prosecution shall be tried as a human, to the worst-case scenarios of the transformed being sequestered and forced to live in prison-camps. And although there are other facets that might keep the first solution from being passed – i.e., a transformed person or a descendant kills someone, but cannot be tried under the statutes about a person being transformed to escape prosecution – another facet of this is that, in that situation, there is nothing to stop them from applying the 'Animal Code' to the transformed person that has committed the crime; in other words, no trial, instant death penalty executed within the month.

So the second argument, that the wording of the civil rights code already covers a transformed person, is our best shot at convincing the courts that transformed people and their descendants should be awarded legal status equivalent to that of a human being. This second argument has problems all its own, ranging from minority groups claiming that reading it this way is bigotry to the fact that most of the racist people view the group or groups of people they dislike as less than human to begin with.

However, the exact wording of 42USC Sec. 1981 is very easy to apply if the legal definitions I have proposed of the terms 'sentient', 'sentiences', 'person', 'persons' and 'people' is adopted. 42USD Sec 1981, paragraph 1 reads:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

The use of the term 'white citizens' in this case is very necessary since it has historically been the 'white citizens' that were unrestricted in the application of the laws regarding basic freedoms and rights. Note that this precedent dates to the time when slavery was legal and commonplace in America, and also has roots in the southern states where laws were passed to keep the 'white citizens' in control. Beyond this there was no precedent in the southern states of America of any non-white citizen winning a court case against a 'white' citizen, and there were laws similar to the 'Apartheid' that once held sway in South Africa that rigidly separated the 'white' from the 'non-white' citizens.

By the start of the 1970s in America most, if not all, of those laws that restricted the application of, or removed the rights from 'non-white' citizens had been repealed or changed to forms that did not specify race as a factor. However, what I have mentioned is a topic for another essay...

In effect, 42USC Sec. 1981 clearly applies to all 'persons' within the jurisdiction of the united states. Moreover, the entirety of Title 42 of the United States Federal Code applies to the same group. Since it is clear that one section clearly applies, there is no possibility that other sections will not apply, save where those sections refer to business entities or are part of the national humane code.

The reason the code applies should be simple to see: If the proposed legal definition for 'person' is accepted, that means, then, that any law which uses that term, or the related terms 'persons' and 'people' also applies. The criminal code attached to the civil rights code (42USC is the guarantee of rights and the background code for 18USC Chap. 13) is just as specific, with numerous crimes listed that are not specifically covered under the provisions of 42USC.

In 18USC241 we find that no one has any right to harass or restrict any person from 'free exercise or enjoyment of any right or privilege so secured' and people are restricted from 'conspir[ing] to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same'. The punishment listed is severe, and consists of numerous charges.

And then, in 18USC242, we find that the government has made it illegal to pass any law that restricts freedoms or rights 'on account of such person being an alien, or by reason of his color, or race'. In this case they not only use the word 'person' – which is a conditional guarantee, provided that the proposed legal definition is adopted – but the word 'race', which can equally refer to the three known sub-species of Homo sapiens sapiens (the taxonomical classification of modern man) – "Caucasoid", "Negroid" and "Mongoloid" – but to persons descended from species other than Homo sapiens sapiens. This is a less secure point to argue from, as it opens the route wide for prejudiced and bigoted people to claim that any being not belonging to "Homo Sapiens Sapiens" is inferior, and it also adds fuel to the claims that one of the three known living sub-species of "Homo Sapiens Sapiens" is superior to the rest.

As I am unable to find any better arguments for beings not members of the species taxonomically called Homo sapiens sapiens (colloquially referred to as 'Modern Man') to be covered by the current laws of the United States, it is perhaps best for me to summarize the argument simply. In the end the argument is that any 'sentient' being, regardless of species (race), can be considered equal to Homo sapiens sapiens with a simple re-definition of the terms 'person', 'persons' and 'people' so that they do not specifically refer to 'human' or 'Homo sapiens sapiens'. If this is done, then no change need be made to the existing laws, as they would apply then to beings that are not Homo sapiens sapiens.