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.