NCJ Number
196671
Journal
Sex Offender Law Report Volume: 3 Issue: 3 Dated: April/May 2002 Pages: 33,42,43
Date Published
April 2002
Length
3 pages
Annotation
After explaining how the common approach to defining "torture" leads to misapplication of the term, this article examines the legal context in which torture typically arises and the need to clearly define and apply the term to avoid constitutional challenges by defendants.
Abstract
The acts that constitute torture generally seem self-evident, and this may explain why the definitional components of the term rarely have been adequately investigated by U.S. courts. "Torture" is usually defined by illustration; i.e., courts point to particular actions by a defendant as examples of torture without examining the defining characteristics of the term. Under U.S. law, torture is typically coupled with a "core" crime, such as rape, murder, or kidnapping. Given the imprecise definitions of torture, it is not surprising that torture as a stand-alone statutory crime exists in very few U.S. jurisdictions. The primary characteristic of torture that distinguishes it from other criminal acts is the intent of the perpetrator to inflict torturous pain upon the victim; however, this element is not required under all laws. The U.N. Declaration Against Torture includes in its definition the broad phrase "cruel, inhuman, or degrading treatment or punishment." Similar phrases exist in the statutory language of many U.S. jurisdictions. In most cases, these statutes pertain to aggravating circumstances that allow courts to impose a death sentence in a murder case. Although the term "torture" contemplates a wide array of shocking and revolting conduct, the definition of torture should not rest upon its revulsion among civilized people. The "exceptionally bad" quality of an act does not make it torture, and none of the descriptors typically applied to support a finding of torture are among its specific characteristics. Part II of this article will present the specific characteristics that comprise the crime of torture.