Mens rea of a monkey…

By Legal Eagle

You all know that I’m obsessed with animals and the law, and I’ve discussed the case of Chico the delinquent macaque. Well, Santino the chimpanzee looks like he’s a delinquent too. The BBC reports:

A male chimpanzee in a Swedish zoo planned hundreds of stone-throwing attacks on zoo visitors, according to researchers.

Keepers at Furuvik Zoo found that the chimp collected and stored stones that he would later use as missiles.

Further, the chimp learned to recognise how and when parts of his concrete enclosure could be pulled apart to fashion further projectiles.

Santino therefore showed the capacity to plan ahead and the ability to anticipate his future mental state (although he had appeared spontaneously out of control during his rock hurling episodes).

Maybe it’s a monkey thing. When I was a kid, I went to see Mzuri the gorilla at the Melbourne Zoo, and he threw poo at everyone. Of course, this delighted the watching kids (at least, those who weren’t covered in gorilla poo).

I can’t help wondering what would happen if Santino threw a rock and seriously injured a zoo-visitor. Could he be held criminally liable?

* Note to non-lawyers mystified by the title: To establish criminal liability, it is required to establish that there was an actus reus (criminal action) and a mens rea (criminal intention).

(Hat tip to my friend JR)


The BBC story doesn’t mention the unpleasant fact that poor Santino was castrated last autumn:

Either way, Santino’s throwing days may be over—the zoo castrated him last fall, to cut his testosterone level.

That seems pretty damn rough to me. One could argue Santino should have “quasi-human rights”. If seeing visitors distressed him so much, perhaps they shouldn’t have displayed him to the public (rather than castrating him). Poor fellow.

I can only echo Charles Siebert’s comments in the New York Times in relation to the treatment of Travis the pet chimp:

There is something about chimpanzees — their tantalizing closeness to us in both appearance and genetic detail — that has always driven human beings to behavioral extremes, actions that reflect a deep discomfort with our own animality, and invariably turn out bad for both us and them.


  1. Posted March 12, 2009 at 5:42 pm | Permalink

    Santino has been castrated. I think this is incredibly, horribly unfair.

    A friend of mine had an interesting run in with a primate of some description (cannot now remember which) in Tiger Leaping Gorge – it stole her backpack, rifled through the contents, found no food and then wiped its bum on her jumper (which was in the backpack).

  2. Posted March 12, 2009 at 5:50 pm | Permalink

    Unfortunately, rather than take Santino’s actions, as his attempt to alleviate a source of something that was distressing him, (and being gawped at might well be considered distressing by many reasonable humans), and thus be bound by their custodial responsibilities and alleviate that distress, they castrated him in what may well be a futile attempt at stopping his reactions, but not his sense of distress.

  3. Posey
    Posted March 12, 2009 at 6:20 pm | Permalink

    I think the point of the story for the cognescenti is that other animals, indeed our closest cousins, in fact do have what we previously preferred to believe was the prerogative of homo sapiens: toolmaking and the use of tools to achieve a desired end.

    All of which, of course, does somewhat undernine the Marxist labor theory of value.

  4. Posey
    Posted March 12, 2009 at 6:38 pm | Permalink

    I did read about this story elsewhere today. This animal had been incarcerated in a caged zoo for 30 years.

    I love the increasingly frequent stories of human tormented wild animals striking back.

  5. Sir Charles Ponsonby
    Posted March 12, 2009 at 6:42 pm | Permalink

    I must say I’m impressed with Santino. He is a didacticist with much promise. Can we offer him a first class airfare to Australia with the promise to lead one of our major political parties? The work is pleasant and not all that taxing with a bit of air travel thrown in to ease the boredom. He’ll fit right in with the other apes in the Canberra ‘zoo’.

    Thanks for explaining actus reus and mens rea. Would you mind explaining it to the wigged buffoons on the bench?

  6. Posted March 12, 2009 at 6:48 pm | Permalink

    Posey: Toolmaking is old news. This one showed without any doubt evidence of planning (shaping stones, making a stash in the areas where humans came to gawp so they would be available for throwing).

    More important than toolmaking though is the demonstration of spontaneous non-reciprocal generalized altruism: being helpful to unfamiliar humans with no real prospect of a payback (see "Spontaneous Altruism by Chimpanzees and Young Children" (PLoS Biology, 2007-06-26, doi=10.1371/journal.pbio.0050184)

    The labor theory of value aspect w.r.t chimps was addressed in a novel written by Jean Bruller (pseudonym “Vercors”) called “Les Animaux dénaturés” (and in my English version “Borderline”). To protect a “newly-discovered” hominid (called “tropi”) species from exploitation as cheap labor, an anthropologist gets an infant tropi baptised by a near-blind priest, suffocates it, and alerts the police and confesses, HOPING he will be charged with murder (and risking the death penalty) so that by precedent, tropis are granted human rights and protected slavery by law.

    I’m a long-time believer that the anthropoid apes deserve human (or quasi-human) rights… including the right to an education (if only for non-wild chimps/gorillas to be given the opportunity to converse in sign language, and be able to instruct lawyers in cases like Santino’s, and that he should be able to sue those who castrated him)

  7. Posey
    Posted March 12, 2009 at 7:30 pm | Permalink

    Yeah, the planning aspect was key, you are absolutely right Dave. Novel sounds very outre.

  8. memeweaver
    Posted March 12, 2009 at 8:26 pm | Permalink

    I agree Santino should be able to seek legal representation to sue his castrators. By the same token, if he is found criminally liable of assault in your hypothetical, then zoo proprietors should also be criminally liable for the abduction, unlawful detention and genital mutilation of countless other primates in their care (rule of law, and all that). But this begs the question: is it assault if you throw poo at someone and it makes them laugh?

  9. Posted March 12, 2009 at 10:03 pm | Permalink

    * Would YOU agree to act on behalf of a chimp if a deaf friend said he/she had (using sign language) asked for help on something? Would you consider an ape with sign language capable of giving instruction like a deaf or mute that uses sign language?
    * If so, would a zoo that DIDN’T teach a chimp sign language and make translators available before severe sanctions (like castration) be seen as removing their right to “speak” and seek legal counsel?

  10. Posted March 12, 2009 at 11:00 pm | Permalink

    I’m less concerned about humans being hit by missiles than 30 years of boredom, anger and resentment suffered by Santino, for which he was then further punished with castration. All of that should be deemed criminal. Certainly a parent would be jailed for locking up an off spring for 30 years.

    It’s the moral dilemma of zoo keeping.

    Elephants have it even worse. They go quite mad in tiny confines and without the couple of dozen members of a herd that they’d ordinarily have in the wild.

    Leaving that aside: I’m also always disturbed by humans romanticizing our ‘close relatives’. If you ever want to keep it in perspective, never forget that we also share something like 75% of our DNA with gold fish and around 25% of our DNA with dandelions.

    I have always remembered the news story of an orangutan killing a toddler, years ago now, and all those who knew and cared for the animal were so astonished, amazed, stunned, flabbergasted, because, you know, the orangutan had known them for years, was almost one of them, they were right proper gobsmacked that it grabbed a toddler and killed it instead of giving it a gentle cuddle Such is the idiocy of believing that 2 or 3 or 4 percent difference in DNA makes us just that same, all bar the small hirsute problem.

  11. Posted March 13, 2009 at 12:09 am | Permalink

    That account of what happened to ‘Lucy’ (which I didn’t know about) is extraordinary. Just because an animal is smart doesn’t mean it’s domesticated, I guess. In both cases, too, there is a problem with the animal’s sexuality; Santino has been castrated to keep him pliable, while Lucy was sent to a refuge, where she appears to have been killed by poachers.

  12. Posted March 13, 2009 at 12:11 am | Permalink

    [email protected]: Not romanticize (they have the same angels and demons)… but from experimental evidence. It’s not DNA – I don’t care whether it’s an anthropoid ape, a dolphin, a martian, or has a silicon brain. (Did you see the one where chimps were on a par with US college students at some basic arithmetic tasks?)

    The thing is… the anthropoid apes are as capable of making their wishes known, and understanding questions as a deaf child in family or juvenile courts (in Santino’s case, juvenile court is more appropriate). We cannot do that with dolphins or goldfish (although maybe Alex the African Grey Parrot would qualify)

    The zoo should at least have tried teaching Santino sign language (he is obviously not stupid), and even if not bothering to get his side of the story, give him a chance by signing to him

    “Either stop throwing stones or we’ll cut your nuts off!”

  13. Posted March 13, 2009 at 6:26 am | Permalink

    The thing is… the anthropoid apes are as capable of making their wishes known, and understanding questions as a deaf child in family or juvenile courts (in Santino’s case, juvenile court is more appropriate).

    Or not, Dave. If he’s been in the zoo for 30 years then he’s well over the age of criminal responsibility.

  14. Posted March 13, 2009 at 8:55 am | Permalink

    I may be alone here, but I think apes are pure evil…

    This one must be kept incarcerated so that he cannot pass on his deadly rock-throwing technology to others.

  15. whistler
    Posted March 13, 2009 at 9:03 am | Permalink

    how would a judge determine the mens rea of an ape if the judge is not also an ape, without an improbable and unjust quantum of guesswork?

  16. Caz
    Posted March 13, 2009 at 10:23 am | Permalink

    Dave – “Did you see the one where chimps were on a par with US college students at some basic arithmetic tasks?”

    No, but alas that doesn’t surprise, and says more about the education system than about chimps, of whom we already know are smart and capable of learning.

    He couldn’t be tried by jury, since they would not be his peers.

    L.E – that’s the point, humans are not a species of apes from any perspective. It’s why we lock up and torment other animals, but they can’t do the same to us.

  17. Jack Hackett
    Posted March 17, 2009 at 10:40 pm | Permalink

    You do realise that castrating poor Santino at his age would have done nothing to decrease his testosterone levels.The liver and other organs produce testosterone I am told past a certain age to maintain sexuality in males.

    Just observe some of our Labor politicians who have been intellectually castrated by their factions.

    Anyone for nuts?


  18. Posted March 18, 2009 at 3:46 pm | Permalink

    When I was a kid, I went to see Mzuri the gorilla at the Melbourne Zoo, and he threw poo at everyone. Of course, this delighted the watching kids (at least, those who weren’t covered in gorilla poo).

    Ah yes primates are so elegant are we not? Not! But we humans watched cats and wolves and acquired grace by contrivance.
    Some of us.

  19. Flower
    Posted March 20, 2009 at 5:10 pm | Permalink

    Last year, a sad looking gorilla at the Perth zoo fixated his eyes on me and then commenced doing rude things to his privates. It was so pitiful and alas, standing next to me was a class of primary school aged children on excursion.

    I too reckon if we caged a few of the rock apes in similar fashion, who strut the corridors of our parliament, they’d be more overt about what they actually do all day too!

2 Trackbacks

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