Criminalizing “Private” Torture

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