Criminalizing "private" torture.

Author:Tetlow, Tania
Position::P. 183-218


This Article proposes a state crime against torture by private actors as a far better way to capture the harm of serious domestic violence. Current criminal law misses the cumulative terror of domestic violence by fracturing it into individualized, misdemeanor batteries. Instead, a torture statute would punish a pattern crime-the batterer's use of repeated violence and threats for the purpose of controlling his victim. And, for the first time, a torture statute would ban nonviolent techniques committed with the intent to cause severe pain and suffering, including psychological torture, sexual degradation, and sleep deprivation.

Because serious domestic violence routinely involves the use of torture techniques, other scholars have proposed stretching the state action requirement of international law against torture to apply it to domestic violence. This Article proposes a simpler solution, urging states to pass statutes banning torture by private actors. Indeed, California and Michigan have already done so, seemingly without controversy and without any real scholarly comment. Both states have used their general torture statutes to prosecute serious domestic violence. This proposal would better tailor a torture statute to domestic violence and includes ways to motivate the state to prosecute torture more often.

Prosecuting domestic violence under a general torture statute would have both direct and indirect impacts. In addition to providing a solution to the existing inadequacy of criminal law, it would also have great rhetorical power. Describing domestic violence as torture focuses the criminal justice system and the public on the defendant's clear premeditation and culpability. We see batterers as merely angry, whereas we acknowledge torturers as cruel. Although we see domestic violence victims as weak and masochistic, we do not blame torture victims for their fate. Describing domestic violence as torture helps to explain both the purpose of abuse and its full pattern.

TABLE OF CONTENTS INTRODUCTION I. DOMESTIC VIOLENCE CONSTITUTES TORTURE. II. WHAT A TORTURE CRIME ACCOMPLISHES FOR DOMESTIC VIOLENCE A. Criminal Law Does Not Capture the Scope and Harm of Domestic Violence B. Most Torture Techniques Remain Legal III. A TORTURE STATUTE WOULD SOLVE MANY OF THESE LEGAL PROBLEMS A. Using a Torture Statute to Capture the Full Horror of Domestic Violence B. Changing the Cultural Perception of Domestic Violence IV. DRAFTING A TORTURE STATUTE A. Existing Torture Law B. Proposed Torture Statute 1. Removing the State Action Requirement 2. Defining Torture a. Requiring at Least One Act of Violence b. Adding a Pattern Requirement 3. Torture Should Require Specific Intent but Without a Further Purpose Requirement C. Making Sure the Torture Statute Does Not Sit on a Shelf. CONCLUSION. INTRODUCTION

International law defines torture as acts committed by, or with the complicity of, state actors, (1) but the technique of torture is far more ubiquitous. Our streets are dotted with torture chambers-houses in which perpetrators use violence, threats, and psychological tricks to break the spirit of their victims. (2) Because those victims are usually wives and children, however, the problem fails to capture much attention. (3) Not only is this torture "private" because it is committed by nonstate actors, but it is doubly private because it occurs inside the home. (4)

Others have argued for the application of international and federal torture laws to domestic violence by stretching the state action requirement to include the state's complicity in permitting domestic violence. (5) I propose a simpler solution. States should specifically criminalize "private" torture--the use of torture techniques by nonstate actors. A prohibition on torture should not prove particularly controversial, and to make it even less so, it should apply broadly to any use of torture, not just to family violence. A torture law would equally capture the terror of a drug kingpin exacting information, a kidnapper with a basement of horrors, and a domestic violence batterer. Indeed, two states, California and Michigan, have already banned torture generally and have used their torture statutes to prosecute domestic violence. (6)

Once given the statutory tool, prosecutors should routinely prosecute serious domestic violence as torture. Doing so would solve several existing problems. Current domestic violence statutes fail to capture its cumulative horror, instead fracturing the patterns of domestic violence into constituent, de minimis parts. (7) Taken individually, many torture techniques remain perfectly legal, and most other techniques are classified as mere misdemeanors such as discrete assaults and batteries. (8) We need a law that accomplishes for domestic violence what stalking statutes did to criminalize that pattern crime. Before then, a terrifying pattern of intimidation constituted, at best, a few disjointed misdemeanor charges such as trespassing, while most of the defendant's behavior remained perfectly legal. (9)

A torture statute would, for the first time, encompass the full scope of domestic violence. (10) It would connect the dots between sporadic acts of violence and make the perpetrator's purpose of controlling his victim relevant. Instead of a fractured series of misdemeanor battery charges, a torture charge would demonstrate the terrifying whole. The law would ban other torture techniques such as sleep deprivation, sexual degradation, and psychological torture when part of a pattern of violence. It would punish domestic violence as a felony even when the perpetrator's primary intent is to cause physical pain rather than to leave "serious bodily injury." (11)

Further, identifying and punishing domestic violence as "torture" would help the criminal justice system and the public understand its full scope and horror. (12) Indeed, in many ways, these cultural signals constitute the most important aspects of our very flawed criminal justice system. (13) A felony crime of torture might help the public to stop blaming victims for domestic violence and stop imagining the victims as weak and pathetic or masochistic and fickle because the public recognizes that techniques of torture can control the mind and warp the will of even the most stoic soldiers.

Although the public often confuses domestic violence with the cumulation of random temper tantrums by a spouse with a nasty disposition, it tends to understand that torture has a purpose: to control or to punish. (14) Defining domestic violence as torture would help the public understand that batterers do not merely inflict temporary physical pain, but cause permanent psychological damage as well. Popular culture gives us insight into the deviousness of psychological torture and helps us understand why torturers alternate between inspiring despair and granting hope. All of this would go a long way to explaining some of the counterintuitive aspects of domestic violence and to curing our fixation on the victim's culpability rather than the perpetrator's cruelty.

This Article proposes a general torture statute that would apply to the use of torture techniques by private actors for a variety of actions, from domestic violence, to child abuse, to preying upon strangers. Part I describes the evidence that domestic violence abusers frequently make use of torture techniques. Part II argues that current law utterly fails to acknowledge the pattern and scope of domestic violence. Part III argues that a torture statute would capture the ongoing and varied nature of domestic violence, and would, for the first time, criminalize the full variety of torture techniques. A torture statute would also explain the real nature of domestic violence to prosecutors, judges, juries, and the public. Part IV then crafts statutory language that works to include the broad scope of torturous conduct without watering down its impact. Convincing legislators to pass a torture statute of general application should prove entirely uncontroversial. Persuading prosecutors to charge the crime of felony torture in domestic violence cases would prove transformative.


    When batterers use violence and psychological torment in order to control their victims, they engage in torture. (15) Although torturers within the home may make use of fewer physical chains than our paradigmatic examples, they utilize every other tool of the trade. Almost every torture technique catalogued in human rights scholarship matches the strange and sadistic ways that batterers routinely exercise power: from the creative and sporadic use of violence, to sensory deprivation, to attacks on the personality of the victim. (16) Simply put, the most effective methods of breaking down and controlling another human being have not altered much in human history. (17)

    The reader may object that such depressing torture chambers cannot be common. In some ways, that empirical question does not matter to my proposal for a torture statute. Regardless, making this charge available to prosecutors in any case involving the horrors described in detail below would matter enormously.

    Torture is, in fact, entirely ubiquitous. First, domestic violence itself is absurdly common. The Centers for Disease Control estimates that...

To continue reading