Criminalizing "private" torture.

Author:Tetlow, Tania
Position:III. A Torture Statute Would Solve Many of These Legal Problems B. Changing the Cultural Perception of Domestic Violence through Conclusion, with footnotes, p. 218-250
 
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  1. Changing the Cultural Perception of Domestic Violence

    Those who have debated for years about how best to describe "domestic" or "intimate partner" "violence" or "abuse," understand that labels matter. (187) In years of training police, prosecutors, lawyers, judges, and the public, I find that describing domestic violence as torture, an argument that several domestic violence scholars have made, works better than any other to help explain the dynamics of abuse. (188) For the reasons detailed in this section, the torture analogy cuts through many of our cultural misunderstandings and our diminishment of domestic violence. It puts the focus back on the perpetrator instead of the victim. It reminds us that violence is but one tool of many and that the worst scars are psychological.

    Current cultural attitudes acknowledge domestic violence as a clear wrong but also subject it to disdain and contempt. (189) The public exaggerates the expansion of rights for women and thus believes that women stay in abusive relationships only by choice, not necessity. (190) To those who imagine that calling 9-1-1 will result in instant safety, domestic violence victims who stay seem masochistic or insane. (191) The public entirely overestimates the ability of victims to escape threats of murder, economic ruin, public shaming, and lost custody of children. (192) In contrast, Americans do not ask themselves why abused Pakistani women "stay" because they understand that these women have nowhere to turn. (193)

    The concept of torture focuses on the culpability of the defendant and distracts us from our absurd cultural fixation on blaming victims of domestic violence. (194) Almost uniquely among crimes, we blame women for the domestic violence (and rape) committed against them. (195) We stereotype them as provocative and deserving of violence or as masochistic and thus enjoying and choosing it; we require that victims seem appropriately meek and pathetic and punish them if they seem too strong. (196) These hurdles, above all else, make the prosecution of domestic violence exceedingly difficult. (197)

    Our cultural paradigm of torture, however, does not blame or even focus on the victim. Our images of torture involve strong victims such as soldiers or terrorist suspects. Few would blame John McCain for crumbling under torture in a Vietnamese POW camp and denouncing his nation. (198) We understand that the techniques of torture work on anyone, regardless of their physical and psychological strength. Few of us harbor any illusion that we could sustain our dignity under torture for very long.

    Describing domestic violence as premeditated torture also corrects the cultural excuses we make for batterers. We stereotype them as flailing victims of their own hapless tempers, frustrated rather than cruel, emotional rather than cold-blooded. (199) We believe that batterers merely lash out at the closest victim out of pent-up emotion and therefore see domestic violence as more of a social problem than a violent crime. (200) Almost uniquely in the criminal justice system, we "punish" it with mere treatment. (201)

    Torture, in contrast, invokes clear criminal culpability. Whether a torturer seeks information, compliance, or punishment, torture constitutes cruelly and chillingly premeditated behavior. (202) Batterers use torture because it gives them power. (203) They do not torture accidentally or because they are frustrated at work; they do so because it gives them control over another human being. (204) Understanding that basic fact would fundamentally change how we perceive and punish the crime.

    The public also understands torture to be serious--a violation of fundamental human rights. Even in a culture steeped in violence as entertainment, torture garners attention. (205) Popular culture is awash with descriptions of torture in fiction and in news reports, portraying both the experiences of our own soldiers in POW camps during every war, and, sadly, our own government's use of torture. (206)

    Domestic violence, meanwhile, remains a petty crime in the popular imagination--a bleak and inevitable social problem that makes national news only when committed against or by celebrities. (207) Understanding domestic violence as torture would clarify that it constitutes more than the sum total of hits and shoves. As Evan Stark argues, the core injury of domestic violence is the deprivation of liberty. (208) Domestic violence "seeks to take away the victim's liberty or freedom, to strip away their sense of self. It is not just women's bodily integrity which is violated but also their human rights." (209) A felony crime of torture, by its very name, signals a premeditated, cruel, and heinous crime.

    The torture description also provides an entirely comprehensive summary of the methods of domestic violence. As described in Part I, batterers use the full array of torture techniques, from sporadic violence designed to control, to the creative use of threats against the victim and everyone she cares about, sleep deprivation and psychological torment. (210) In the context of domestic violence, these patterns seem counterintuitive and de minimis--a batterer who merely wakes up his wife, who insults her, who hits her only occasionally and without great force, and who spews seemingly empty threats. In self-defense cases--the cases in which the victims are allowed to describe their entire experiences--we see how short current law falls when applied within the context of our paradigm of domestic violence. (211)

    In the context of torture, however, the public imagination understands that the infliction of violence is merely one of many effective techniques to break the spirit. (212) Sporadic violence, while giving the victim some illusion of control, works better than constant violence. (213) Threatening the victim, or better yet, threatening his loved ones, can work even better than the reality of violence. (214) Sleep deprivation, or other physical efforts to unnerve and confuse the victim, work as well as the infliction of pain. (215)

    The concept of torture also helps to explain the brutality of sexual violence and humiliation. While the law does criminalize rape within marriage, actors within the criminal justice system fail to understand that the harm of rape is not made easier by previously consensual sex, but instead is magnified by being attacked by someone the victim loved and trusted. (216) Our culture tends to equate rape with theft of sex, rather than violence and degradation. (217) If rape is merely theft, then marital rape does not involve more than the overruling of a frigid wife too tired to satisfy her husband. (218) Indeed, until quite recently, the law gave husbands that prerogative. (219)

    We understand, however, that sexual degradation constitutes a powerful tool of torture, perhaps the most powerful. At the U.S. detainment center in Abu Ghraib, the media reported that never-released pictures showed soldiers raping male and female prisoners, sometimes with objects. (220) Reports also indicated that children were raped in front of their parents. (221) Photographs actually released showed acts of sexual humiliation against prisoners including photographs of prisoners who were forced to create a naked human pyramid or wear women's underwear. (222) In the context of that searing national embarrassment, the public came to understand rape and sexual humiliation as forms of torture that cause lasting psychological wounds.

    That brings us to another insight of the torture analogy--that psychological wounds matter just as much, or more, than physical injury. In the context of domestic violence, the public thinks little of the concept of "emotional abuse"; it equates "emotional abuse" with being called fat too many times, which results in mere low self-esteem. (223) We dismiss the premeditated cruelty of a batterer as the careless insults of a thoughtless spouse. And, we fail to acknowledge the profound harm of sleep deprivation in domestic violence cases at all.

    Our culture better understands the concept of psychological torture. Soldiers at Abu Ghraib and Guantanamo Bay used psychological torture techniques, because these techniques proved effective to break prisoners and skirted the edges of legality. (224) Both in our fictionalized versions of torture and our reporting on the real thing, we acknowledge the damage done. The experience forever robs the victim of sleep, implanting permanent nightmares and creating psychological wounds that distort the personality and ruin lives. (225) Because our paradigmatic torture victim is male, not female, we spare him the minimization of his psychological harm. (226)

    Finally, our cultural references to torture occasionally even help to explain some of the most counterintuitive aspects of psychological warfare. Torturers intersperse cruelty with kindness. (227) They find ways to persuade the victim to bond with them. For example, the tortured POW in the television series Homeland described with great shame the reasons he became loyal, and even "loved," his terrorist persecutor. (228) After years of isolation and physical and psychological torture, his captor then offered him kindness and connection. (229) This insight becomes crucial to understanding domestic violence and the counterintuitive aspects of remaining emotional attachment.

    The biggest disconnect in the analogy between torture and domestic violence is the absence of captivity in most domestic violence. Even so, the public has a slightly better understanding of the ways that a torture victim can feel trapped even when the door remains open. We understand that a torturer can exercise total control over a victim without constant vigilance. (230) Effective torture inspires a terror so total, a sense of utter omnipotence, that victims do not believe they have an avenue of escape. (231)

    If the criminal justice system actually prosecuted domestic violence...

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