Tortured prosecuting: closing the gap in Virginia's criminal code by adding a torture statute.

AuthorBrowne, Christopher G.

TABLE OF CONTENTS Introduction I. Torture Laws Across the United States II. The Elements of Torture A. Mens Rea: Intent, Purpose, and Knowledge B. Cruel or Extreme Pain C. Temporal Requirement D. Physical and Mental Injuries E. Physical or Custodial Control III. Model Torture Statute IV. Potential Concerns With The Torture Statute A. Statutory Vagueness B. Risk of Minimizing the Seriousness of Torture V. Application of Model Torture Statute to Gore Conclusion Introduction

"From time to time a criminal case arises for which current laws do not seem to 'fit' the elements of the case. When that happens, it can be difficult for prosecutors to find a charge that can be supported by the evidence and that will carry an appropriate punishment." (1)

Such a situation in which current laws do not fit the case's facts recently occurred in Gloucester, Virginia. On April 28, 2011, while knocking on doors during a routine robbery investigation, members of the Gloucester County Sheriff's Department made a startling discovery at the home of Brian and Shannon Gore in Gloucester County, Virginia. (2) As police moved from room to room, they found a fully decorated child's room. (3) That room was for the Gores' son. (4)

Police discovered another room that appeared to be for storage. (5) The room was dark and full of boxes. (6) In the room, there was also a crib topped with a heavy piece of wood and several large boxes acting as a lid. (7) Inside that makeshift cage, a naked little girl reached out from behind its bars. (8) She "was whimpering, grunting, and making animalistic noises." (9) Officers found the girl crouched with her knees pressed against her chest and her heels touching her buttocks. (10) Several inches of feces lined the interior of the cage. (11) The child was so starved that she had resorted to eating her own skin. (12)

She had sustained severe injuries. The six-year-old weighed just fifteen pounds--the size of a six-month-old baby. (13) Her head was the size of a three-year-old child's, and she could not extend her legs due to long-term confinement and malnutrition. (14) Open sores covered her heels and buttocks as a result of remaining in the same position for long durations of time. (15) Because her confinement deprived her brain of essential nutrients during key developmental stages, she suffered permanent brain damage. (16) Later testing indicated that the girl, now close to nine years old, would never be able to live independently and would always suffer from emotional and psychological challenges. (17) Neither Brian nor Shannon Gore could explain why they had caged and starved their child. (18) From police interviews and trial testimony, however, it became clear that the Gores' actions went beyond mere child abuse.

For months, possibly years, the girl's parents imprisoned their child in the makeshift cage in the back of their home, allegedly to conceal her existence. No one knew that the couple had a baby girl. (19) At first, the Gores left the child in the cage when they were at work and took her out when they returned home. (20) Eventually, however, the Gores grew increasingly unconcerned about taking her out of the cage, so much so that she remained confined in the cage for long periods of time. (21) Brian Gore stated that he and his wife fed the child sporadically and sometimes he would leave her a Pop-Tart. (22) When asked why they stopped feeding their child, Brian Gore said that he and his wife were tired of "[her] and it was easier to deal with [her] this way." (23) They recognized that eventually the child would get sick and die. (24)

A grand jury could not successfully indict the Gores on attempted murder charges because they periodically fed the child. (25) After searching for applicable statutes under which to charge the Gores, the prosecutor charged them with aggravated child abuse--a felony with a 10-year maximum term of imprisonment (26)--and aggravated malicious wounding, which is punishable by up to life in prison. (27) The Gores pled guilty to both charges and the judge sentenced them to thirty years in prison--ten years for aggravated child abuse and twenty years for aggravated malicious wounding. (28) However, had the child not suffered a permanent injury, which is one of the elements of aggravated malicious wounding, (29) the Gores would not have faced the possibility of life in prison. Instead--assuming a conviction for malicious wounding--the Gores would have faced a maximum possible punishment of thirty years in prison (ten years for child abuse and twenty years for malicious wounding). (30) Given that judges rarely issue the maximum sentence, it is likely that the Gores would have received less than thirty years. (31)

This Note argues that Virginia should close a gap in its criminal code by creating a new crime for when a perpetrator physically or mentally tortures a victim. The recent case in Gloucester County illustrates the deficiencies of Virginia's criminal statutes. Although the Gores subjected their baby daughter to unspeakable physical and mental suffering through acts that amount to nothing less than torture, Virginia's criminal laws do not specifically address this type of conduct. When situations like these arise, prosecutors struggle to find crimes that meet the facts of the case and provide adequate punishment.

Most academic work on torture law has focused on international laws, particularly laws that pertain to the treatment of enemy combatants. (32) Although this Note will reference and analyze international torture laws as well as federal torture laws, it predominantly focuses on state laws that address torture. Part I of this Note will provide a broad overview of torture laws across the United States. Part II will examine the different elements of state torture laws, with particular focus on the differing approaches to torture under Michigan's and California's torture statutes. In that section, this Note will argue that any torture statute should include mental and physical suffering, and unlike California's torture statute, motive should not be an element of the crime of torture because it needlessly restricts prosecutors and fails to cover all instances of torture. Part III draws upon state torture laws in creating a model state torture statute. Part IV addresses constitutional concerns with torture laws and argues that the model torture statute is not unconstitutionally vague. Finally, Part V applies the model torture statute to Gore.

  1. Torture Laws Across the United States

    Torture is a familiar subject under international and federal law. In 1994, the United States ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT)--a treaty that requires state parties to "ensure that all acts of torture are offences under [their] criminal law[s]." (33) The United States subsequently enacted the "Torture Act." (34) Much of the scholarly debate on torture focuses on the interpretation and utility of these laws. (35) However, at the state level, a fairly robust statutory framework addresses torture. Many states mention torture in their homicide laws. (36) In California, for example, "[a]ll murder which is perpetrated by means of ... torture ... is murder of the first degree." (37) The Arizona Supreme Court also held that murder by torture is a type of first-degree murder "committed when the defendant intends to cause extreme pain and suffering for the purpose of revenge, extortion, persuasion, or some other untoward propensity." (38) The New York aggravated murder statute identifies murder committed in the course of torture. (39) According to the statute, first-degree murder includes instances in which "the defendant acted in an especially cruel and wanton manner pursuant to a course of conduct intended to inflict and inflicting torture upon the victim prior to the victim's death." (40)

    Another common statutory framework is the inclusion of torture as an aggravating factor for enhanced sentencing when a murder includes acts of torture. (41) Many states name torture as an aggravating factor for capital punishment. (42) Virginia is one of these states, but Virginia does not define torture. (43) In fact, of the twenty states that include torture as an aggravating factor for capital punishment, only Arkansas, (44) New York, (45) and Wyoming (46) specifically define torture.

    Many jurisdictions also include torture in their child abuse statutes. (47) For example, in the District of Columbia, a person commits the crime of cruelty to children in the first degree if that person "intentionally, knowingly, or recklessly tortures ... a child under 18 years of age ... and thereby causes bodily injury." (48)

    Despite international treaties and federal laws criminalizing torture that does not result in death, California and Michigan are the only two states that have specific anti-torture statutes. (49) These two statutes--as well as federal and international torture laws--provide a point of reference for defining torture. As will be discussed below, this Note will analyze the elements of these statutes to formulate a precise yet workable definition of torture that will provide prosecutors with an effective tool to combat an especially horrible crime.

  2. The Elements of Torture

    1. Mens Rea: Intent, Purpose, and Knowledge

      The driving force behind the California torture statute is the idea that the mindset of a torturer is particularly dangerous and therefore deserving of additional punishment. (50) In California, torture is a specific intent crime, meaning the perpetrator must intend to inflict the physical effects suffered by the victim. (51) Intent is generally inferred from actions that demonstrate the perpetrator did not merely intend to injure or kill the victim, but also wanted the victim to suffer. Actions courts typically consider as evidence of the specific intent to torture include, but are not limited to: inflicting...

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