Thus far we have seen that torture involves the infliction of pain but that not all infliction of pain counts as torture. There can be legitimate reasons for inflicting even extreme pain (as in the case of an emergency operation when anesthetic is not available) and there can be legitimate reasons to inflict pain in order to achieve legitimate behavioral goals (like getting people to obey the law).
I don’t think that a definition of torture that focuses exclusively on the level of pain or on the purpose of the pain will be successful in capturing much of our commonsense understanding of torture (Parameter 1) and in picking out something that is intrinsically evil (Parameter 2).
Instead, I think that a more satisfying definition of torture can be developed by relating the quantity and purpose of the pain.
You’ll note that one of the things that the Catechism said regarding punishment was "Legitimate public authority has the right and duty to inflict penalties commensurate with the gravity of the crime" (CCC 2266). This statement contains an insight that I think will allow us to develop a more robust and intellectually satisfying definition of torture.
You’ll note that the Catechism also referred to torture as potentially involving the punishment of the guilty, and historically some people have been sentenced to torture in order to punish them for their crimes. But we might say, per 2266, that a punishment would not be torture if the punishment is commensurate with the gravity of the crime.
Clearly different crimes have different gravities. Those that are only light offenses should receive light penalties, while those that are more grave offenses should–in keeping with justice (i.e., giving someone what they deserve)–receive heavier penalties.
But what if the state starts handing out punishments that are disproportionate to the offense? If the government really is inflicting excessive amounts of pain that outstrip the gravity of the offense then it seems that in this case you could say that punishing the guilty has become an act of torture. At least it seems to me that you could use language in this way.
What if we apply the same insight to the other common torture motives?
We mentioned earlier that it doesn’t always seem to be torture if someone uses fear to get someone to confess to a crime (e.g., a lawyer who advises his client what the consequences of not confessing will be if it is later proven that he’s guilty of the crime). But what if a disproportionate amount of fear is inflicted on the suspect? It seems to me that you could at that point say that the person is being tortured. Or at least you could use language that way.
And how about frightening opponents? We noticed that the criminal justice system is based on using punishments to keep potential lawbreakers in line, and that’s legitimate as long as the punishments "correspond to the gravity of the crime" that they are attached to. But what if they’re excessive–what if the state starts handing out electroshock for things as trivial as parking violations? In that case the rule of law becomes a reign of terror, and the punishments could be seen as torture.
And, of course, any use of pain to satisfy hatred (properly understanding what counts as hatred, as opposed to justified anger) could count as torture–even if the parvity of the pain would make it a really light torture.
Going this route seems to allow us to propose a definition that would capture a great deal of the things that our commonsense understanding would count as torture.
So let’s try this definition and see how it works: The sin of torture consists in the disproportionate infliction of pain.
You’ll note that I’ve specified torture in its moral aspect (the sin of torture) rather than its legal aspect (the crime of torture). Because of the way the civil law works, torture will have to be cashed out in more concrete terms in a civil law definition, but it’s the moral aspect we’re interested in, and moral definitions tend to be more general. Morally speaking, theft is the taking of another’s property against the reasonable will of its owner, but the crime of theft is going to be cashed out differently in the civil law. It’s the same thing on the subject of torture.
So how does the definition work in practice?
Well, as we noted, it would allow us to distinguish between the legitimate use of pain to achieve legitimate goals and the illegitimate use of pain to achieve the same goals. That’s a good thing.
It allows us to recognize that extreme pain can be legitimate in extreme circumstances but illegitimate in non-extreme ones. That’s a good thing, too.
It also allows us to focus on the pragmatics of particular situations. For example, it is often pointed out that torture should not be used in the criminal justice system because if you torture people to extract confessions then they will confess falsely, simply to end the pain. Torture, in other words, doesn’t work when being applied to the goal of getting at the truth in a criminal prosecution.
Our proposed definition allows us to recognize the fact that some pain (e.g., fear from being warned of what will happen if you don’t confess and are later proved to be guilty) can lead to true confessions while excessive pain will lead to false ones. The line into torture (and this is by nature a blurry but nonetheless real line) would be crossed when enough pain/fear is applied that you cease motivating true confessions and start motivating false ones. So the definition seems to work in this context.
It also would allow us to distinguish between legitimate punishment to deter crime and torture that creates a reign of terror. And that applies whether we’re talking about parents punishing vs. torturing their children or the state punishing vs. torturing its citizens.
It further allows us to recognize that it would not be wrong to twist a terrorist’s arm behind his back if he knows the location of a time bomb that is about to go off and there is no other way to effectively motivate him to tell us where it is.
Yet it would be torture to twist his arm behind his back if the threat is less imminent and traditional interrogation means will be as or more effective than arm twisting to get the needed information from him.
I’m not sure that our proposed definition captures all of our commonsense understanding of torture, but it seems rather promising so far and technical definitions invariably don’t capture everything that a pre-reflective understanding does.
Try out this proposition and see how it strikes you: Morally speaking, the evil in an act of torture consists in the infliction of a disproportionate amount of pain.
That strikes me as quite plausible. If what you are doing doesn’t involve the infliction of a disproportionate amount of pain then it doesn’t strike me as being torture. What’s wrong about torture is that you’re inflicting more pain than you should.
(From one perspective an act of torture could also inflict other forms of harm besides pain–such as mutilating a person’s body so that they no longer have legs and can’t walk any more–but then it would seem to involve something besides the torture itself, such as being an act of torture and mutilation or torture by mutilation. The mutilation would be sinful in itself, even if it were made totally painless and thus not a torture from the perspective of immediate pain.)
I think I’m pretty satisfied (at the moment) that the thing that makes torture wrong is that it involves inflicting more pain than is warranted in a situation. So I think we’ve found a necessary condition for something to be torture. Torture has to involve inflicting more pain than is warranted.
But is this a sufficient condition?
Here someone might propose additional conditions that are needed for torture that have nothing to do with pain. For example, someone might propose that the torture has to be inflicted on another person. In other words, you can’t torture yourself. You might masochistically hurt yourself, but it wouldn’t be torture. Others might say no, you can torture yourself, and when you do so to get some kind of thrill out of it, it’s a specific kind of torture known as masochism.
I think that this is a matter that we can leave open as it isn’t really involved in the question that is motivating the present torture debate (i.e., the War on Terror).
Others might say that another condition that needs to be present is that you aren’t inflicting pain for the purposes of helping the person. In the tracheotomy example and the battlefield amputation example, the pain is inflicted as part of helping somebody, and you might say that this disqualifies it as being torture.
I would be skeptical of making this addition to the definition, because it seems to me that a lot of what we have historically called torture has been viewed as helping the person being tortured–e.g., making a heretic confess so that he can break with his heresy and be reconciled with God or "re-educating" a person with "politically incorrect" views so that he can be a "productive member of society" (the Commies were big on that one–still are in China and North Korea).
Someone might propose that the law of double-effect might be brought in here, such that something counts as torture if the pain is inflicted as an end or a means but not if it is a side-effect. I’d buy that something is torture if it is inflicting pain as an end–that kind of pain would always be disproportionate since pain is not a legitimate moral end (i.e., something to be pursued for its own sake), but it strikes me that pain can be a legitimate means, as when fear of punishment is used to keep people from breaking the law.
Some might want us to say that torture has to be carried out by the government, and we often think of it this way, but don’t we also say that a murderer can torture his victim before killing him?
At present I find myself unable to think of plausible additional criteria that seem necessary for us to have torture, and so I am inclined to say that, morally speaking, torture consists in the infliction of disproportionate amounts of pain.
This leads to some unusual conclusions in a few cases. For example, suppose that a doctor is performing an emergency tracheotomy on a choking victim and, in the process of doing so, he deliberately inflicts more pain than is necessary on the patient out of some sadistic desire. In this case our definition would say that he tortured the patient to the extent the pain was excessive, and that’s a little odd, but not outside the realm of what many people might find an acceptable use of language.
What we have been doing so far is exploring torture largely within Parameter 1, or trying to develop a definition of torture that allows us to identify the moral evil that is found in the acts that our commonsense understanding classifies as torture. But what about Parameter 2–that our definition needs to pick out something intrinsically evil? Does the proposal on the table do that?
Well, to deliberately inflict a disproportionate amount of pain on someone is by definition unjust, and it is intrinsically immoral to act unjustly, so it would seem that there is a sense in which we can say that inflicting disproportionate pain is intrinsically evil. It’s not exactly a standard way of talking in moral theology, but I suspect that it would satisfy the Magisterium since it allows us to say that you can never torture people.
One might express the intrinsic evil of torture this way: In evaluating the morality of an act, Catholic moral theology looks at its object, the intention of the person performing it, and the circumstances in which it is performed (including the consequences of the act). For more on this, see CCC 1750ff.
The object is "the matter of a human act" (CCC 1751; e.g., in the case of an abortion, the object or matter of the act is the killing of an unborn baby). The intent is what the person performing the act was hoping to achieve by doing it (see CCC 1753; e.g., in the case of an abortion the abortionist may have performed it in order to help the young mother lead a good life). The circumstances reflect everything else about the situation, including the consequences of the act (CCC 1754; e.g., in the case of the abortion, perhaps the abortionist knew and was friends with the young woman, giving him a special reason to want to help her lead a good life).
In order for an act to be morally good, it must have a good object, a good intention, and be done with respect to good circumstances. If it is lacking in one of these–that is, if it has an evil object, is done with an evil intent, or is done in evil circumstances then it is an evil act (CCC 1755).
A distinction can be drawn between those acts that are intrinsically immoral and those that are extrinsically immoral. If the object of an act is evil then the act itself is immoral, regardless of the intent of the person performing it or the circumstances in which it is performed (CCC 1755-1756). It is called "intrinsically" evil because the core of the act itself–its object or matter–is evil. On the other hand, if the object of the act itself is good, it can nevertheless be rendered evil if the intent of the person performing it is evil or if the circumstances in which it is performed are evil. In these cases the act is said to be "extrinsically" evil since it is not the act itself (the object or matter of the act) that is evil but things connected with the act (the intent or circumstances) that are evil.
Torture is intrinsically evil because it is the infliction of disproportionate pain on a subject. It is not intrinsically evil to inflict pain on a subject. If it were then we could not do emergency surgeries without anesthetic or punish children or punish criminals. But pain is not an intrinsic goal in its own right. Pain is a physical evil and, as an evil, it is something that is in itself to be avoided per the basic moral axiom of "Do good and avoid evil." It is thus out of keeping with human dignity to inflict a physical evil on another person if there is not a justifying reason for it. To inflict disproportionate pain on someone is thus to inflict a physical evil on them when there is not a justifying (or adequately justifying) reason. In such a circumstance, the person’s dignity as a human being is not respected, and the person is being treated as an object (something on which pain can be inflicted without a fully justifying reason) rather than as a subject (someone on which pain can be inflicted only with a fully justifying reason).
The infliction of a disproportionate amount of pain is thus always wrong. It does not matter if you had a good intention (e.g., "I was trying to save human lives"). The infliction of too much pain (more pain than was necessary) is out of keeping with the dignity of the person and treats him as an object rather than a subject. It similarly does not matter what the circumstances were (e.g., "There was a ticking time bomb and we only had a few minutes before it went off"). If you used too much pain then you strayed into treating the person as an object rather than a subject and did not respect his human dignity, which requires that physical evils like pain not be inflicted on him except when there is a fully justifying cause.
In concrete situations, we must of course take full account of the intent and circumstances in assessing a person’s subjective culpability for an act (e.g., the person may have misestimated the amount of pain that was proportional), but this does not change the fact that the act of inflicting disproportionate pain is objectively wrong and thus intrinsically and objectively sinful.
Torture thus emerges as something that is intrinsically and objectively wrong the same way that taking too much of a person’s food if you are starving and can’t pay and he has plenty is wrong (the sin of theft). The object of an act of torture or theft is wrong, and so these acts are objectively wrong, making them intrinsically evil per the discussion above.
Having said this, I should point out that I am not wedded to this definition. In my mind, it’s a tentative one, and I would be perfectly happy to entertain proposals for different sets of necessary and sufficient conditions if someone thinks they have a more satisfying definition.
Some might be disappointed that the definition I have proposed does not automatically classify certain physical acts as torture but allows them to be or not be torture based on the situation.
Take waterboarding as an example. I would say that waterboarding is torture if it is being used to get a person to confess to a crime (it is not proportionate to that end since it will promote false confessions). I would also say that it is torture if it is being used to get information out of a terrorist that could be gotten through traditional, less painful interrogation means (it is not proportionate to the end since there are better means available). I would not say that it 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). And I would not say that it is torture if it is being used to train our own people how to resist waterboarding if it is used on them (this is apparently something we do, and it is proportionate on the understanding that there is no better way to help people learn to resist waterboarding).
I find it hard to think of particular physical acts that automatically count as torture irregardless of the circumstances. Even cutting off parts of a person’s body is not torture if you’re doing it to prevent them from dying of gangrene and there is no anesthetic available. But if the pain involved in that physical act is not automatically torture then I don’t know what would be. Indeed, I don’t know how to establish a maximum amount of pain that can be inflicted, even if it is for purposes of saving someone’s life.
The only amount I can think of is one that would permanently damage the person in some way, and then we’re talking about some kind of physical or mental mutilation rather than torture itself–and even that might not always be immoral since the Catechism acknowledges that mutilations can be legitimate for therapeutic reasons. "Okay, maybe removing your leg on the battlefield left you mentally ‘scarred,’ but at least you’re alive, and you can live with the scars," I could see someone arguing.
It also strikes me that adopting the kind of general moral definition that I have proposed may be a good thing in that it lets us get past a semantic chokepoint in the discussion: Instead of worrying about whether or not something counts as torture, we can start figuring out whether particular acts are or are not moral. If the pain involved in them is disproportionate then they are immoral and therefore torture. If the pain involved in them is not disproportionate then they’re not immoral and not torture.