A DISCUSSION OF LAW AND JOURNALISM

Butterflies: Animals or Art?

Britain Damien Hirst

By LASIS Staff

Artist Damien Hirst has never found favor amongst animal rights activists. He earned his reputation through his exhibit of a formaldehyde-soaked shark and sculpture of a severed cow’s head.

But some organizations have felt that his latest exhibit, “In and Out of Love” at the Tate Modern in London went too far.

On October 14, The Telegraph announced that the 23-week art retrospective had led to about 400 butterfly deaths per week, for a total death toll of over 9,000 butterflies, many which were squashed or stepped on when they came into contact with museum visitors.

The American organization People for the Ethical Treatment of Animals (PETA) took issue, calling butterflies “beautiful parts of nature and should be enjoyed in the wild instead of destroyed for something predictable and unimaginative.”

A representative for Britain’s Royal Society for the Prevention of Cruelty to Animals (RSPCA), went further, stating, “There would be national outcry if the exhibition involved any other animal, such as a dog. Just because it is butterflies, that does not mean they do not deserve to be treated with kindness.”

The museum itself has defended Mr. Hirst’s exhibit, stating, “The butterflies used in this work were all… selected from varieties known to thrive in the conditions created. The butterflies lived out the final state of their natural life cycle inside this room.”

The Daily Mail also reported that Mr. Hirst claimed he employed a butterfly expert for his exhibit at “considerable cost,” and that the living conditions created at the museum were “perfect,” resulting “in many butterflies enjoying longer life spans due to the high quality of the environment and food provided.”

We weren’t sure where we stood on this. On the one hand, butterflies are nowhere near as developed a life form as man’s best friend, so the RSPCA’s argument didn’t resonate with us. On the other hand, the survival rate for the butterflies in the exhibit as reported by The Telegraph — a couple of hours to several days  — measures poorly against the butterflies’ actual lifespan in the wild—which is several months.

So we wondered. Would butterflies be considered “animals” under animal rights laws? Could someone succeed in a lawsuit under some sort of theory of “animal cruelty”? LASIS took up the case.

The U.K.—where the exhibition took place—has a law regulating the “exhibition and training of performing animals,” but it does not apply to “invertebrates,” that is, animals without a backbone. However, wider in scope is its 2006 Animal Welfare Act, which allows “the appropriate national authority” to “extend the definition of ‘animal’ so as to include invertebrates of any description.” That Act protects against offenses “causing an animal unnecessary suffering,” or “mutilating an animal’s body.”

A person is held liable for “unnecessary suffering” if “he is responsible for an animal,” “an act, or failure to act, of another person causes the animal to suffer,” and “he permitted that to happen or failed to take such steps … as were reasonable in all the circumstances to prevent that happening.”  (“Mutilation” carries similar requirements, but for purposes of simplicity, we’ll just deal with “unnecessary suffering” here, since that is what the RSPCA’s criticisms mainly focus on.)

Additional considerations for whether suffering was “unnecessary”:

“Whether the suffering could reasonably have been avoided or reduced”;

“Whether the conduct which caused the suffering” complied with any relevant regulations, licenses, or standard practices;

“Whether the conduct which caused the suffering was for a legitimate purpose,” such as “benefiting the animal,” or for protection of “a person, property or another animal”;

“Whether the suffering was proportionate to the purpose of the conduct concerned”; and

“Whether the conduct concerned was in all the circumstances that of a reasonably competent and humane person.”

Even if Mr. Hirst were to argue that his art exhibition was  a “legitimate purpose,” (and it’s not certain that argument would be accepted), there are now, because of that exhibition, over 9,000 dead butterflies.  To our minds, that sounds excessive, far beyond anything “proportionate to the purpose of the conduct concerned.”

Could Mr. Hirst have taken better precautions to “reasonably avoid” or “reduce” the amount of damage caused by careless visitors? For instance, what if he had treated his work similar to the Butterfly Conservatory at the American Museum for Natural History? This exhibition posts multiple warnings about watching one’s step when entering the exhibit and waiting patiently for the little critters who land on clothing to fly away.

Hard to say.

It’s also hard to know whether or not some of the people bashing Mr. Hirst’s art exhibit are truly concerned about the butterflies or are just tired of the headline grabbing Mr. Hirst, whose talent is debated even as his oeuvre sells for astronomical sums. On the other hand, a 2009 Tate Modern exhibit came under fire with the public — and that one caused the death of only 12 fish.

Seeing as many commentators on the Huffington Post think that “we’re giving [Mr. Hirst’s exhibition] more voice than it needs,” and that there is “more important” news on which to focus than the death of some pretty butterflies, one wonders if a lawsuit would even be brought to begin with. The legal framework may be there, but it may not be significant enough for anyone to litigate. For Mr. Hirst, killing butterflies could just remain a controversial form of art.

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  2. animals345 says:

    Just because butterflies are “less developed”, as you put it, does not mean they should be treated with any less respect. We are animals whether or not we have a backbone, and we all deserve to be treated humanely and kindly. I completely agree with the RSPCA. What gives this untalented, uncreative shithead Hirst the right to kill 9,000 butterflies?! That is a huge number and it is unacceptable to make an art form out of a living creature. What he did was wrong and it should not be tolerated or venerated in any way because that just paves the way for more of this kind of mistreatment. If he had any shred of creativity, he would draw, paint, or photograph butterflies in a new and inspiring way instead of killing them.

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