Defining Torture: An Initial Exploration

by Jimmy Akin

in Moral Theology

Per Parameter 1, it seems that at the core of every conceivable definition of torture must be the idea of causing pain. Whatever else torture may be, it involves causing someone pain. If you are not causing a person pain, you are not torturing that person. (You may be trying to cause them pain and failing at it, but they aren’t being tortured if they aren’t hurting as a result.)

But not all causing of pain is torture. For example, performing an emergency tracheotomy on someone who is choking in a restaurant will cause the person pain, but our commonsense understanding would not count an emergency tracheotomy as an act of torture. We therefore need to qualify the causing of pain in some way to lop off cases where pain is caused and yet the result is not torture.

But what qualifier should we use? Here is where things get messy. I don’t think that there is a commonly agreed-upon qualifier. Instead, the ordinary person’s mind contains a list of practices that have historically been understood as torture (use of thumbscrews or racks or iron maidens or cattle prods or rubber hoses or bamboo shoots under the fingernails) and he hasn’t reflected that much on what these have in common other than that they cause pain.

Checking a dictionary may help, but that will tell us more about what the authors of the dictionary thought than what the common man does at this point.

If we do a survey of different proposed definitions, though, we can come up with potential qualifiers that might be useful in crafting a definition. These qualifiers will tend to have to do with the quality, the quantity, or the purpose of the pain.

For example, under the heading of the quality of the pain, at one time people might have used the word "torture" to refer to the infliction of physical pain. But then mental tortures (e.g., killing a person’s children in front of him) came to count as torture in the common understanding.

I am thus dubious that any definition will be successful if it attempts to identify torture based on the quality or kind of pain being inflicted. I’d rather leave this element of the definition open and say that torture can occur regardless of the kind of pain involved.

A currently popular strategy is to talk about the quantity of the pain, and there is some plausibility to this. We have the idea that if someone shakes our hand so firmly that it hurts a little that this is not torture, but if he puts our hand in a hydraulic press that crushes it then this could count as torture.

Some thus seem to take torture to be the infliction of extreme pain. But I am skeptical of this approach because it seems that there are situations in which extreme pain can be caused to a person without it being torture. For example, if I am a battlefield medic and someone has two gangrenous limbs and I have no anesthetic then I may be forced to amputate both of his limbs with people holding him down to keep him from thrashing too violently from the pain. The amputee will, indeed, experience extreme pain, but we would not say that I am committing an act of torture by performing a life-saving pair of amputations.

Incidentally, this example also ought to caution us against thinking of torture in terms of mutilations. Mutilations may in some cases be involved in torture, but not all mutilations are torture (as in the case of amputating to save lives) and many tortures do not involve mutilations (e.g., using electric shocks).

I also am not sure whether extreme pain is needed for torture. It strikes me that it may be possible to torture someone by only causing moderate pain, though I am open on this point.

Another type of qualifier is the purpose for which the pain is being inflicted. This also–like the quantity of pain–has an initial plausibility. We have the sense that if someone is inflicting pain on us in order to save our lives–as in the case of the emergency tracheotomy or the battlefield amputation–that it does not count as torture. Yet doing the same physical acts for other reasons could count as torture.

For example, if one of Saddam’s goons drills a hole in my throat in order to get a sadistic joy at my pain, that would reasonably be considered torture. Similarly, if someone starts amputating my limbs in order to get me to confess to a crime, that would be reasonably considered torture. So the purpose of the pain infliction may have a role to play in our definition.

Here is where a passage of the Catechism becomes relevant:

Kidnapping and hostage taking bring on a reign of terror; by means of threats they subject their victims to intolerable pressures. They are morally wrong. Terrorism threatens, wounds, and kills indiscriminately; it is gravely against justice and charity. Torture which uses physical or moral violence to extract confessions, punish the guilty, frighten opponents, or satisfy hatred is contrary to respect for the person and for human dignity. Except when performed for strictly therapeutic medical reasons, directly intended amputations, mutilations, and sterilizations performed on innocent persons are against the moral law [CCC 2297].

This paragraph does not appear to offer a definition for "torture" (it doesn’t say "Torture consists of . . . ") but it does list several possible purposes that do correspond to our commonsense understanding of torture. Torture can indeed include motives like extracting confessions, frightening opponents, or satisfying hatred.

But here we encounter problems: First, it is unclear whether the list is exhaustive or not. There may be other motives that torture can involve.

Second, it’s not clear that we can say that the infliction of pain for any and all of these purposes is torture. For example, one of the motives listed is punishing the guilty, but the Church does acknowledge that the state has a right to punish people. CCC 2266 states:

The State’s effort to contain the spread of behaviors
injurious to human rights and the fundamental rules of civil
coexistence corresponds to the requirement of watching over the common
good. Legitimate public authority has the right and duty to inflict
penalties commensurate with the gravity of the crime.
The primary scope
of the penalty is to redress the disorder caused by the offense. When
his punishment is voluntarily accepted by the offender, it takes on the
value of expiation. Moreover, punishment, in addition to preserving
public order and the safety of persons, has a medicinal scope: as far
as possible it should contribute to the correction of the offender.

Since punishment involves pain (otherwise it isn’t a punishment), it is clear that not all infliction of pain in order to punish the guilty is unjust or that it is torture.

A solution for this difficulty might be found by focusing on the Catechism’s description of torture as involving "physical or moral violence" (as opposed to physical or mental pain) but this only creates a new question about how to distinguish violence from the infliction of pain and doesn’t get us closer to defining torture.

Similar, though less extreme, problems appear if we focus on the other motives that are mentioned and try to fit them into a pain-based definition of torture.

For example, inflicting pain in order to get someone to confess. This is probably the paradigmatic case of torture in the popular mind, but does all infliction of pain to get someone to confess count as torture? Our instinct is to say yes, but what about this:

The police have strong reason to think that someone committed a crime and, in the process of interrogating him, they point out to him that if he cooperates with their investigation then the law provides for him to receive a lenient sentence, while if he resists and stonewalls then the law provides that he will be punished more harshly. They describe the difference in the punishments he will receive and point out that it is in his best interest to confess as soon as possible–assuming that he’s guilty.

This situation–pointing out the harsher punishments he will receive if he stonewalls–involves the creation of fear. The suspect is meant to fear the greater punishment and be incentivized to confess as a sign of contrition and good will that will warrant a lesser punishment. But fear is a form of pain, and so the officers are inflicting a form of pain on him to get a confession.

Is this torture?

Some might say that yes, it is a mild form of torture. But consider this: What if it isn’t the police who paint the picture for the suspect. What if it is his own lawyer, who tells his client that–if he is guilty–he is better off confessing up front so that he can get the lesser sentence. I suspect most of us would not say that the lawyer is torturing his client by this infliction of pain (fear) in order to motivate a confession.

Let’s look at another of the motives: frightening opponents. This is another historical purpose for which torture has been used. Saddam did it all the time to keep his political opponents in check.

But consider this: Aren’t criminals in a sense the opponents of those responsible for maintaining the rule of law? And if they aren’t, aren’t terrorists and revolutionaries?

If we view matters in this way, it seems that the whole basis of the criminal justice system is inflicting punishments (pains) in order to frighten potential criminals (including terrorists and revolutionaries) into obeying the law.

It thus seems that not all infliction of pain in order to frighten people counts as unjust or torture. Can you imagine what would happen to society if one day the Supreme Court gutted the criminal justice system by removing all penalties from all laws, thus removing fear as a motivating factor in law-keeping? Total chaos would erupt–and our lives would become nasty, brutish, and short! (Actually, martial law would be declared by the president while Congress impeached the members of the Supreme Court who voted this way so that they could be replaced by new justices who would strike down the previous ruling, but you get the point of the thought experiment.)

The one motive listed by the Catechism that seems to me as an unassailable torture motive is satisfying hatred. If you’re inflicting pain–or at least extreme pain–on someone so that you can satisfy your hatred for them then that strikes me as a plausible case of torture.

And that’s something that’s intrinsically immoral (Parameter 2).

We could stop there and say that inflicting pain or extreme pain for purposes of satisfying hatred is torture, but I would find this definition unsatisfying as it corresponds to too little of our commonsense understanding, which does include things like extracting confessions and frightening opponents. I think we can produce a more robust and satisfying definition.

That’ll be the subject of the next post.

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Tim J. November 27, 2006 at 7:34 am

“Robust and satisfying…”
That reminds me, the coffee is finished brewing… time for a cup, while I wait for the next post.
Good stuff, Jimmy.

Dave November 27, 2006 at 2:43 pm

Very interesting analysis. A couple thoughts:
I wonder about the way you use the word “pain”. The inclusion of both physical and mental pain makes sense, but mental pain seems to be so broad as to contradict our common sense understanding of pain.
If I give someone information which will cause him to feel fear, am I inflicting pain on him? Most, I imagine, would say no. So I am wondering about the example of the police officers telling a suspect what kind of punishment he can expect as an instance of causing pain.
That example concerns me for another reason: to what extent are the police the cause of the fear? It seems prima facie that they are the cause, for had they not told him, he would not feel fear (or, at least, as much fear as he does after being told).
Yet the objective information which they give him, about the punishments to expect for certain crimes within our justice system, would seem like a more likely candidate for a per se cause of the fear, whereas the police are the cause of his coming to know that information (a per accidens cause).
This is, I think, an important distinction. If the king has seven brothers killed in front of their mother, the king would be the cause of her grief. But if her sons are killed in battle, and a soldier comes to deliver the message that they have died, the messenger could be called a cause of her grief; but the more important cause of her grief is the death of her sons.
Any thoughts?

Dave November 27, 2006 at 2:48 pm

Further to that: the word “cause” is one I introduced; Jimmy uses “inflicted”. I used the word cause because I find it more helpful in discussions of different ways in which pain can be said to be “inflicted”.

Zippy November 27, 2006 at 5:20 pm

Dave: maybe a helpful word is “choose”. When we engage in (licit or illicit) punishment or discipline, we are choosing to make a helpless captive suffer. (I’ve explained on my own blog what I think the difference is between licit punishment/discipline and illicit infliction of suffering; torture being a proper subset of the latter). The messenger doesn’t choose the suffering of the bereaved mother in the same sense that the father chooses the suffering of the paddled child (though both acts can at least in principle be licit).
I think to get to the bottom of this we have to understand how and when it is licit for a competent authority to choose to make a helpless captive suffer. And I think that one criteria which makes it definitely not licit (there are no doubt others) is when the captive is treated as nothing but a means to some end.
I think this makes people uncomfortable, because most people want there to be an at least limited moral license to choose to treat other human beings, in certain circumstances, as nothing but a means to some end. I think that is wrong though. I don’t think it is ever morally permissable to treat another human being as nothing but a means to some end.

Julianne Wiley November 28, 2006 at 8:04 am

Jimmy Akin, I want to thank you for undertaking this important work of defining torture. I’ve been looking for a long time for such intelligent discussion. I appreciate that you and your combox colleagues are handling it with precision and without unnecessary accuatory passion (“You’re a self-righteous moral exhibitionist!” vs. “You’re a slack casuist and a moral retard!”) — which pops up all too quickly in some discussions.
Again, thank you. I will be reading carefully.

Esau December 1, 2006 at 10:16 am

I had a terribly interesting evening last night when I happened to learn just how awful a person Jimmy Akin really was.
I encountered the following comments concerning Jimmy Akin in Mark Shea’s blog:

At this juncture, it is customary to complain about my unfairness and mischaracterization of the position of people like Jeff and the Coalition for Fog. “We’re *not* defending torture!” goes the protest. We are defending, er, aggressive interrogation. Totally different! Maybe, however, in this case what is being defended are acts which *would* be called torture if the circumstances were not desperate. For that is precisely what Jimmy argues for when he says, “I would not say that it [waterboarding] is torture if it is being used in a ticking time bomb scenario and there is no other, less painful way to save lives (it is proportionate since there is not a better solution).”
The logic of the argument is entirely understandable and even emotionally appealing. Some weirdo has kidnapped your kid and buried him alive in a box. He won’t talk. Why not use torture to make him talk? You can hardly fault the parent who would beat the living daylights out of the guy. As a parent myself, I am not immune to the persuasiveness of such arguments.
Nonetheless, I agree with Zippy that Jimmy’s argument is a bad one, both for Zippy’s reasons and reasons of my own. If an act is intrinsically evil, then it does not become proportional and just when circumstances change.

Okay, from this, had I not read Jimmy’s entire post on his website, by the way he’s painted here, that Jimmy is actually for the torture of terrorists, but the other following comments happen to paint an even darker picture of him:

Another problem with Jimmy’s argument is that it seems to me to be extremely subjective. How, precisely, is proportionalism to be determined? If it’s proportional to torture at all, then how do you measure the proportion? Waterboarding if 100 lives are at stake? Pliers to the testicles for 200? Blowtorch to the eyes for 1000? If a city is endangered, then in what sense can we be “proportional”? How can the suffering of one man *ever* match the suffering of a million? And since those millions have families, why not threaten the family of the suspect? Indeed, why stop with waterboarding when you can gouge eyes, castrate and pull fingernails and not even come close to the suffering your (assumed) terrorist will inflict (assuming he knows something, which you are torturing him to discover). Of course, if it turns out your suspect knows nothing, then what? It turns out you have committed an intrinsically immoral act against an innocent man and you could well go to hell for it.

And yet, here in cyberspace, no small effort, ranging from the Coalition for Fog, to Against the Grain, to (now) Jimmy’s blog has been put into figuring out some way to redefine it so that it’s not torture, or shout down those who oppose it as “Pharisees” or otherwise figure out a way to overlook the bleedin’ obvious in favor of the highly abstract and hypothetical. Virtually *no* effort has gone in to pursuing the question, “How do we treat prisoners humanely while still getting the intelligence we need?”.

So, here, it seems that Jimmy Akin is nothing more than a heartless hypocrite who lives to Catholic morals when it suits him, but, under certain desperate circumstances, Jimmy’s the kind of horrible person who would actually abandon his morals, his very Catholic identity – no wait, he’s more sinister than that! – Jimmy would redefine Catholicism itself in order to weave arguments that would actually suit his vengeful purpose in such circumstances!
What’s interesting to note is that my post happen to come up as well:

Of course, Zippy couldn’t care less that even if the hundreds of innocent victims of the 9/11 attacks could have been saved by the simple capture and rigid interrogation of terrorist(s) prior to the time of the attacks, the life of that terrorist is far more precious than those innocent people and shouldn’t even undergo a smidgen of psychological interrogation tactics since even these are considered “torture”.
See, it’s so easy when folks can simply reflect such issues in an ivory tower, with an “holier-than-thou” attitude, looking down from an almighty throne on those who should even dare cross what they’ve declared to be the moral threshold, without even being in the actual trenches.
Yet, there are those of us who suffered greatly from the tragic events of 9/11 and have, in fact, lost people close to us.
To actually witness folks giving such “preferred” treatment to terrorists, of all things (even ordinary criminals aren’t treated with such esteem and have to undergo a barrage of even the most rigid psychological tests), even at the cost of innocent lives, is just too repulsive.
Not to wish any harm on such folks, but it seems that the only way they could ever feel the pain of the tragic events of 9/11, is to suffer personal lost themselves. It’s sometimes about walking in someone else’s shoes until they come to terms with the other perspective.
In point of cool, rational fact much of this outburst has nothing to do with anything Zippy has ever said, or anything any opponent of torture has said. It has nothing to do with the reality of torture opponents. It has to do with pain and fear–pain and fear I readily acknowledge. But the fact remains, torture would not have stopped 9/11, except on “24″. Zippy is not the heartless bastard this commenter declares and he certainly does not think a terrorist’s life is *more* precious than an innocent man’s. He simply does not think a terrorist’s life is worthless. And he emphatically does not think Caesar will keep us safe by being granted the power to commit intrinsically immoral acts against those Caesar deems to be enemies. In this, at the end of the day, he has Veritatis Splendor to back him up

From what’s said here, I am made to appear as if I, myself, actually endorse torture – after all, I did know people who died on 9/11, and, therefore, I, myself, must be harboring some vengeful feelings toward such people! Yet, in fact, in much of the things I’ve said in other posts, I have made it clear that I do not endorse the actual torture of these terrorists, but that it *seemed* to me that there are those who would not even have these people go through even the same rigid interrogation tactics common criminals undergo since even this is considered “TORTURE” in their eyes – a point that would’ve been reached by readers actually interested in the truth had it not just been the *isolated* quote above.
Although, what had been said?
…*torture* would not have stopped 9/11, except on “24″.
If there was any misunderstanding on my part, wouldn’t Christian charity have been for them to simply clarify my misunderstanding? Further, perhaps to even clarify Jimmy’s misunderstanding, if there was actually any on his part as well? Or perhaps even actually dialogue with Jimmy should there even be (God forbid!) a misunderstanding on *their* part, too!
Instead, what was done was folks (fellow Catholics-those who actually profess such high Catholic ideals!) actually engaged in vicious back-stabbing rather than confront their assumed opponents and deal with this misunderstanding.
I would’ve expected such devoted Catholics to have done what Christian charity would have called for in this case!
Was there perhaps some trace of intellectual pride and the “high and mighty ways” on their end that may have played a part?
It is said in the Prayer of St. Francis:
“O Divine Master, grant that I may not so much seek
to be consoled as to console;
to be understood as *to understand*…”
But, I guess that’s all thrown out the window should such a noble cause arise!
Interestingly enough, isn’t that what’s being implied here about Jimmy? That he would actually throw out his Catholic morals for the *noble cause* of saving the lives of innocents from terrorists?
Though, those who actually know the full story, this is not the case at all!
Love Thy Enemies except if they are fellow Catholics and appear to oppose you.
Treat terrorists with human dignity because they’re in the image of God, but I guess this doesn’t apply to fellow Catholics.
Condemning innocent men? Well, suspected terrorists may end up being innocent people certainly, but those suspected to be against you, no way! In fact, when duty calls for it, engage in character assassinations by all means!
So, thank you Mark Shea et al, for confirming what some may have suspected all along, that this “Love Thy Enemies” routine might end up being all an act to flaunt that “Holier-than-Thou” attitude that some feel the need to pull over their fellow Catholics in such an underhanded way!
Could there be an ulterior political motive in this as well?
I would not have gone ahead and posted the preceding message, but, obviously, Jimmy being the stand-up person that he is, I don’t think he would have retaliated the least on his blog since he actually *lives out* his Catholic beliefs rather than merely *leave it to words*.
I wished that in some cases, I could be the same kind of person, but I am still a “work-in-progress” (so-to-speak), entirely fallible and but human and can only rely on God’s mercy and goodness. In the end, I can only pray he guides me to do the right thing in life and that I can ultimately live out the Catholic Faith in all aspects of life.

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