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Criminalizing "private" torture.

ABSTRACT

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.
TABLE OF CONTENTS

INTRODUCTION
I.    DOMESTIC VIOLENCE CONSTITUTES TORTURE.
II.   WHAT A TORTURE CRIME ACCOMPLISHES FOR DOMESTIC
      VIOLENCE
      A. Criminal Law Does Not Capture the Scope and Harm of
         Domestic Violence
      B. Most Torture Techniques Remain Legal
III.  A TORTURE STATUTE WOULD SOLVE MANY OF THESE
         LEGAL PROBLEMS
      A. Using a Torture Statute to Capture the Full Horror of
         Domestic Violence
      B. Changing the Cultural Perception of Domestic
         Violence
IV. DRAFTING A TORTURE STATUTE
      A. Existing Torture Law
      B. Proposed Torture Statute
         1. Removing the State Action Requirement
         2. Defining Torture
            a. Requiring at Least One Act of Violence
            b. Adding a Pattern Requirement
         3. Torture Should Require Specific Intent but Without a
            Further Purpose Requirement
      C. Making Sure the Torture Statute Does Not Sit on a
         Shelf.
CONCLUSION.


INTRODUCTION

International law defines torture as acts committed by, or with the complicity of, state actors, (1) but the technique of torture is far more ubiquitous. Our streets are dotted with torture chambers-houses in which perpetrators use violence, threats, and psychological tricks to break the spirit of their victims. (2) Because those victims are usually wives and children, however, the problem fails to capture much attention. (3) Not only is this torture "private" because it is committed by nonstate actors, but it is doubly private because it occurs inside the home. (4)

Others have argued for the application of international and federal torture laws to domestic violence by stretching the state action requirement to include the state's complicity in permitting domestic violence. (5) I propose a simpler solution. States should specifically criminalize "private" torture--the use of torture techniques by nonstate actors. A prohibition on torture should not prove particularly controversial, and to make it even less so, it should apply broadly to any use of torture, not just to family violence. A torture law would equally capture the terror of a drug kingpin exacting information, a kidnapper with a basement of horrors, and a domestic violence batterer. Indeed, two states, California and Michigan, have already banned torture generally and have used their torture statutes to prosecute domestic violence. (6)

Once given the statutory tool, prosecutors should routinely prosecute serious domestic violence as torture. Doing so would solve several existing problems. Current domestic violence statutes fail to capture its cumulative horror, instead fracturing the patterns of domestic violence into constituent, de minimis parts. (7) Taken individually, many torture techniques remain perfectly legal, and most other techniques are classified as mere misdemeanors such as discrete assaults and batteries. (8) We need a law that accomplishes for domestic violence what stalking statutes did to criminalize that pattern crime. Before then, a terrifying pattern of intimidation constituted, at best, a few disjointed misdemeanor charges such as trespassing, while most of the defendant's behavior remained perfectly legal. (9)

A torture statute would, for the first time, encompass the full scope of domestic violence. (10) It would connect the dots between sporadic acts of violence and make the perpetrator's purpose of controlling his victim relevant. Instead of a fractured series of misdemeanor battery charges, a torture charge would demonstrate the terrifying whole. The law would ban other torture techniques such as sleep deprivation, sexual degradation, and psychological torture when part of a pattern of violence. It would punish domestic violence as a felony even when the perpetrator's primary intent is to cause physical pain rather than to leave "serious bodily injury." (11)

Further, identifying and punishing domestic violence as "torture" would help the criminal justice system and the public understand its full scope and horror. (12) Indeed, in many ways, these cultural signals constitute the most important aspects of our very flawed criminal justice system. (13) A felony crime of torture might help the public to stop blaming victims for domestic violence and stop imagining the victims as weak and pathetic or masochistic and fickle because the public recognizes that techniques of torture can control the mind and warp the will of even the most stoic soldiers.

Although the public often confuses domestic violence with the cumulation of random temper tantrums by a spouse with a nasty disposition, it tends to understand that torture has a purpose: to control or to punish. (14) Defining domestic violence as torture would help the public understand that batterers do not merely inflict temporary physical pain, but cause permanent psychological damage as well. Popular culture gives us insight into the deviousness of psychological torture and helps us understand why torturers alternate between inspiring despair and granting hope. All of this would go a long way to explaining some of the counterintuitive aspects of domestic violence and to curing our fixation on the victim's culpability rather than the perpetrator's cruelty.

This Article proposes a general torture statute that would apply to the use of torture techniques by private actors for a variety of actions, from domestic violence, to child abuse, to preying upon strangers. Part I describes the evidence that domestic violence abusers frequently make use of torture techniques. Part II argues that current law utterly fails to acknowledge the pattern and scope of domestic violence. Part III argues that a torture statute would capture the ongoing and varied nature of domestic violence, and would, for the first time, criminalize the full variety of torture techniques. A torture statute would also explain the real nature of domestic violence to prosecutors, judges, juries, and the public. Part IV then crafts statutory language that works to include the broad scope of torturous conduct without watering down its impact. Convincing legislators to pass a torture statute of general application should prove entirely uncontroversial. Persuading prosecutors to charge the crime of felony torture in domestic violence cases would prove transformative.

I. DOMESTIC VIOLENCE CONSTITUTES TORTURE

When batterers use violence and psychological torment in order to control their victims, they engage in torture. (15) Although torturers within the home may make use of fewer physical chains than our paradigmatic examples, they utilize every other tool of the trade. Almost every torture technique catalogued in human rights scholarship matches the strange and sadistic ways that batterers routinely exercise power: from the creative and sporadic use of violence, to sensory deprivation, to attacks on the personality of the victim. (16) Simply put, the most effective methods of breaking down and controlling another human being have not altered much in human history. (17)

The reader may object that such depressing torture chambers cannot be common. In some ways, that empirical question does not matter to my proposal for a torture statute. Regardless, making this charge available to prosecutors in any case involving the horrors described in detail below would matter enormously.

Torture is, in fact, entirely ubiquitous. First, domestic violence itself is absurdly common. The Centers for Disease Control estimates that one out of four American women will be severely beaten by a partner in her lifetime. (18) The World Health Organization puts the worldwide average at one in three. (19) Even if a fraction of those cases involve what this Article attempts to proscribe as torture, it would represent an extraordinary number of cases. Indeed, the empirical evidence on domestic violence, discussed in detail below, shows that it typically involves (1) a pattern of violence, rather than random individualized acts; (2) done for the purpose of control; and (3) accompanied with the use of other techniques that we associate with torture. (20) Social scientist Evan Stark estimates that 60 percent of domestic violence involves "domestic terrorism." (21)

My own work with domestic violence victims, as a prosecutor and a lawyer representing survivors in family law, has provided me with plenty of anecdotal evidence to equate much domestic violence with torture. Over the past fifteen years, victims have described to me eerily similar accounts of creative cruelty. I include some of these insights below.

First, in the most obvious analogy to torture, domestic violence abusers use violence in forms both mundane and creative, and they use violence over time. (22) Slaps and shoves escalate to beatings and strangulation. (23) Batterers focus on vulnerable parts of the body, like breasts and genitals. (24) They also sometimes evade detection by hitting places that do not reveal bruises so easily. They use their fists, but also burn with cigarettes and cut with knives. (25)

In torture, actual violence constitutes a means for control rather than an end in and of itself. (26) As such, threats punctuated with sporadic violence prove far more effective than constant violence. (27) The torturer gives the victim the illusion of some control over pain by being compliant. (28) Consistent and regular violence would not serve the same purpose of forcing the victim to be hyper-vigilant and terrified of what might come next. That is the somewhat counterintuitive pattern that we see in domestic violence. Usually batterers do not use a torrent of uncontrolled violence, but rather violence that is purposeful and sporadic. (29) Indeed, the seriousness of violence does not necessarily predict whether the batterer will ultimately murder his victim; his level of control over her does. (30)

Violence may not even constitute the most useful tool of torture. The threat of violence, whether explicit or implicit, may do as much work as its actual infliction. (31) To give an idea of how creative and commonplace these threats are, consider that a majority of the victims I have interviewed reported one or more of the following threats: (1) the explicit threat to kill the victim and bury her body at a specified location where it would never be recovered; (2) the implicit threat of the batterer cleaning his gun in front of the victim when making a point; and (3) the nonverbal threat of veering the car as if to crash it, or grabbing the wheel of the car while the victim is driving.

More effectively still, batterers threaten to kill those whom the victim cares about, from family members to the family dog. (32) Threats to pets are so common that several states have incorporated such threats into their protective order law. (33) Abusers will eagerly show news clippings to their victims after some other batterer actually engages in a killing spree of his victim's parents, siblings, coworkers, or friends. (34)

Most effectively of all, batterers routinely threaten to harm or kill their own children. (35) Studies show an overwhelming overlap between domestic violence and child abuse. (36) Victims who disobey thus risk not only their own lives and safety, but also those of their children. In the ultimate exercise of power, some batterers in fact murder their own children. (37)

Even leaving the batterer may not protect the victim's children. Batterers routinely threaten to gain custody of the children as punishment, so escaping from the torture chamber requires leaving hostages behind. (38) These are not idle threats. Batterers are far more likely than nonviolent fathers to seek, and to succeed at winning, custody of their children. (39)

Batterers also make use of more subtle torture techniques that are ordinarily considered innocuous under current criminal law. (40) When the CIA did experiments in the 1950s to decipher the torture techniques used to make its most stalwart soldiers crack, it found that mental torture and sensory deprivation worked surprisingly well. (41) Batterers also, for example, frequently make use of sleep deprivation as an effective way to incapacitate their victims. (42) Exhaustion makes every life activity, from working to parenting, difficult and seriously impairs the victim's ability to plot escape. (43)

My own clients described batterers who woke them up routinely and did so in jarring or terrifying ways. Sometimes their abusers turned on all the lights or blared music. Worse yet, one woke up his wife by spraying her with mace, and another by raping her. All of this made sleep permanently difficult, even after escaping the relationship.

Like any good torturer, batterers particularly focus on sexual violence as the most effective way to break a victim's spirit. (44) They routinely rape their victims, a practice only recently made illegal within marriage. (45) Just as effectively, and without breaking current criminal law, batterers use sexual humiliation--from conducting sexual "inspections" designed to sniff out alleged adultery, to coercing the victim into degrading sexual practices. (46) The use of shame serves multiple purposes: it creates searing psychological scars and it further isolates the victim from help as she correctly guesses at the world's reaction. (47)

Batterers also use variations on the psychological torture techniques that the CIA has determined to be effective, including mind games and "crazy-making" behavior. (48) They tell the victim that she imagined the abuse or that she is merely overly sensitive. (49) They hide objects and tell her that she lost them. (50)

Another technique that batterers utilize is to intersperse violence and threats with kindness and false hope. (51) They begin, as described above, by working hard to establish an emotional connection before striking. (52) Some become masterful at alternating cruelty with effective appeals to victims' generosity, forgiveness, and guilt. (53) Lenore Walker, a distinguished researcher in the field of battered woman syndrome, (54) famously described a "cycle of violence" including a tension-building phase, violence, and then a honeymoon period in which the batterer pleas for forgiveness and acts with kindness. (55)

Batterers use stalking and surveillance to monitor their victims and to instill a sense of the batterers' own omnipotence. (56) They follow and monitor, demanding constant contact from the victim to avoid punishment. (57) They check their victims' cell phones and hack into their e-mail. (58) Technology has made this terrifyingly easy, allowing a batterer to establish his victim's whereabouts with a mere computer search for her smart phone location. (59) This stalking technology also allows the abuser to appear "omnipresent and omniscient to the victim," thus extending his control past even the expansive reaches of his monitoring. (60)

Batterers create rules and micro-regulations of daily life, from what the victim may wear to who she can talk to. (61) Using this technique the perpetrator creates a world in which the victim is constantly monitored and criticized; every move is measured against an unpredictable, ever-changing and unknowable "rulebook." (62) The victim's attempt to survive leads to constant anxiety and vigilance to avoid displeasing the torturer. (63) The experience of walking on eggshells becomes so excruciating that some victims actually provoke an attack to get it over with. (64)

Most commonly of all, batterers use constant verbal cruelty to degrade their victims. (65) We minimize this under the category of "emotional abuse," but it creates some of the most lasting wounds inflicted under a regime of torture. (66) They use relentless criticism and belittlement and they degrade and humiliate their victim. (67) Further, batterers have an advantage over those who torture strangers because the batterers have the opportunity to persuade their victim to entrust them with their secrets and emotional weak points. (68)

The only major distinction between domestic violence and the catalogue of torture techniques used elsewhere is that we normally associate torture with kidnapping or confinement of the victim. Batterers sometimes imprison their victims, (69) but more often they isolate them in less obvious ways. They almost always wait to begin abuse until they have their victims legally and emotionally entangled with them, often hitting for the first time on the wedding night or when the victim is pregnant. (70) Batterers use threats to prevent escape: threats of violence to the victim and her loved ones, threats to fight for custody of the victim's children, threats to impoverish the victim and her children, and threats to falsely accuse the victim of crimes. (71) Batterers isolate victims by punishing them for contact with their friends and family. (72) The resulting isolation may not match that of solitary confinement, but it still takes an enormous psychological toll. (73)

State v. Norman is a case that demonstrates most of these torture techniques. (74) J.T. Norman regularly beat Judy, his wife of twenty-five years, using a fist or any object at hand, burned her with cigarettes, and smashed glass against her face. (75) He knocked her down the stairs while she was pregnant, which resulted in the death of their child. (76) He sexually humiliated her and forced her to work as a prostitute. (77) He used psychological torture, calling her "bitch," "whore," and "dog," and making her sleep on the floor and eat dog food. (78) He threatened to kill her in very specific ways if she attempted to leave or to call for help. (79) At trial an expert testified that the abuse resembled the treatment that the Nazis gave to prisoners-of-war (POW) or the brainwashing techniques used during the Korean War. (80)

As I discuss next, a court would have deemed little of this evidence of torture relevant in a prosecution of J.T. Norman for individual discrete acts of domestic violence. Indeed, the State did not prosecute Norman at all. (81) Almost the only legal arena in which domestic violence victims have the opportunity to describe the full horror of their abuse is in their own trials for killing their batterers when they present their self-defense arguments. (82) In this case, as in many, Judy Norman's horror stories failed to earn her acquittal. (83)

II. WHAT A TORTURE CRIME ACCOMPLISHES FOR DOMESTIC VIOLENCE

Against this backdrop, it becomes easier to understand the utter failure of criminal law to grapple with domestic violence. Current law criminalizes batterers' violence and explicit threats of violence but almost no other form of torture. (84) Part of this stems from the fact that U.S. criminal law does not prioritize most violence as much as it does narcotics or property crime. (85) Violence constitutes a mere misdemeanor unless it involves "serious bodily injury" or weapons; (86) even cigarette burns to genitals might not rise to a felony. (87) But criminal law also fails to adequately address domestic violence in more particular ways. Criminal law does not recognize domestic violence as a pattern crime and instead treats it as individual, isolated incidents. (88) Because of these inadequacies, the law fails to explain the nature of domestic violence to the public, instead dividing it into a thousand minimal, constituent parts. (89)

A. Criminal Law Does Not Capture the Scope and Harm of Domestic Violence

Domestic violence violates an array of statutes, from battery, to trespass, to attempted murder. (90) In the 1980s, states created specific domestic violence statutes to make clear that no informal exception for violence against an intimate partner existed. (91) States did so, however, by merely relabeling misdemeanor battery between intimates as the crime of "domestic violence." (92) They did not alter the fundamental nature of the charges already available, which were designed for far more singular acts of violence inflicted on strangers or acquaintances. (93) As Alifair Burke points out, domestic violence reformers have focused more on procedural attempts to improve the criminal justice system than on examining the limitations of statutory law. (94)

Most criminal law statutes remain "transaction-bound," focused on a single and discrete action. (95) These statutes generally function well to capture the harm of stranger violence. The harm of a bar fight, for example, is usually contained by a single act of battery. But the law falls short when applied to years of abuse ranging from shoves to strangulation. (96) At best, a prosecutor can choose fragmented pieces of the whole by asking the victim to remember a few particular batteries. Thus, a batterer's reign of terror constitutes nothing more than the sum of any of its parts that can be singled out and shown in isolation. (97)

Transaction-bound offenses are not, in fact, a requirement of criminal law. Conspiracy statutes have long allowed the description of patterns of crimes; racketeering laws do so even more expansively. (98) Both conspiracy and racketeering would prove quite valuable to allow a prosecutor to fully describe the pattern of harm in domestic violence cases, except that each statute requires more than one perpetrator. (99) Batterers usually act alone, conspiring with no one.

In the 1990s, states outlawed stalking, thereby acknowledging a pattern crime committed by an individual perpetrator. (100) Before the passage of stalking statutes, prosecutors would have to pursue a terrifying pattern of following, monitoring, and implied threats with individual de minimis charges like trespassing. (101) Stalking captures the full array of harm done by a single individual over time. (102)

Domestic violence, however, remains mired in the world of fragmentation. (103) Not only do the available charges fail to present a full picture of the pattern and scope of violence, the rules of evidence often forbid painting such a picture at trial. A prosecutor conducting a trial of a single individualized act of violence often will be prohibited from bringing in evidence of all the other crimes committed by the batterer against his victim. (104) Under Federal Rule of Evidence (404b), the law frowns on bringing in "prior bad acts" to prove current wrongdoing as "propensity" evidence. (105) Courts do not allow prosecutors to prove, for example, that a defendant committed the charged bank robbery merely because he has robbed ten other banks. (106)

Pursuant to Rule 404(b), the prosecutor must go to the trouble of giving notice and then defending against a motion to exclude evidence of prior bad acts in order to use such evidence to show the defendant's motive and intent. (107) Even when prosecutors succeed with these efforts, the focus of the trial must remain on the single incident charged. (108) All other context becomes a legal distraction.

Professor Tuerkheimer points out that the isolation of single incidents also undermines the credibility of the victim's testimony--frequently the only evidence in domestic violence cases. (109) The judge or jury faced with the story of a single moment of violence in isolation will never understand the totality of the reign of terror. (110) They will never understand how the victim found herself in the situation, much less how she became trapped there. (111) Further, because existing law ignores the purposes of domestic violence altogether, these stilted trials omit much of the evidence of the defendant's motive that would help to explain the crime. (112)

An industrious prosecutor might attempt to capture all of the abuse by charging multiple counts of domestic violence--bringing a single indictment listing twenty different crimes. The power of our transactional notion of criminal law is such, however, that a judge might sever those charges into different trials. (113) The law requires the evidence of each charge to stand alone and gives the court discretion to avoid the potential of prejudice from overlapping evidence. (114)

More to the point, police or prosecutors will rarely know about the full scope of abuse precisely because the law requires them to focus on an individual incident. A busy police officer responding to a domestic violence call has no incentive to inquire about the broader pattern of domestic violence, (115) nor does the busy prosecutor triaging the case as part of the always-enormous docket of domestic violence cases. (116) Most police and prosecutors will ask only about the incident charged and may even become impatient with a victim who veers off into a jumble of descriptions about the past. (117)

Even when charges are brought, criminal law seriously underestimates the harm caused by a batterer's cumulative reign of terror. The law charges the vast majority of domestic violence as mere misdemeanors, punishable at best by a few months' incarceration, but rarely giving any. (118) Almost uniquely in the criminal justice system, we "punish" domestic violence with treatment in lieu of jail time. (119) Regardless of whether this treatment works (and the evidence suggests it proves effective for only a small fraction of batterers), there is no reason that it should entirely supplant punishment and deterrence. (120)

The failure of the law to capture the full pattern or seriousness of domestic violence also results in a warped consideration of danger during bail determinations. The judge deciding bail will know nothing about the defendant's threats to kill the victim if she reports him, his years of escalating abuse, or his use of rape and humiliation. (121) Instead the judge will see only a single petty offense and will likely grant the defendant's bail. Despite the extraordinary level of witness tampering and threats endemic to domestic violence cases, the judge will not have access to the larger pattern necessary to determine danger. (122) Bail also depends heavily on the seriousness of the charges brought, and most domestic violence will constitute no more than a misdemeanor. (123)

A victim who has the courage to report her torturer thus faces his almost immediate release. (124) If the assistant district attorney meets with her at all, it will be for the few precious minutes available for a misdemeanor charge, with a prosecutor who will ask questions only about the specific incident that led the victim to call for help. (125) In return for all of that risk, the victim knows that--at best--her abuser will face a mere misdemeanor conviction and a class on how to not beat women any more. (126) Even if convicted, and that is a big "if," the torturer will return home enraged and seeking revenge. (127)

The criminal justice system does not respond to the inability of victims to testify by expanding sentences for domestic violence to keep them safer when they do come forward. (128) Instead, prosecutors focus on forcing reluctant victims to testify, sometimes by jailing them for contempt. (129) This creates a situation in which victims calling the police face a terrible choice between protecting themselves and risking jail for doing so. (130)

The decision to punish most domestic violence only as misdemeanors also undermines the attention paid to the national epidemic of domestic violence. Police and prosecutors give misdemeanor domestic violence less attention and fewer resources, often shuttling the cases through special misdemeanor courts. (131) Nor does domestic violence count in the policy tradeoffs made by mayors and police chiefs. (132) One political fact that does not receive scholarly attention is that the FBI does not count misdemeanor violence--including the vast majority of domestic violence--in its statistics on violent crime. (133) So, cities concerned about the public rise and fall of their violent crime rates need not concern themselves with domestic violence until some of those cases result in murder and register in the annual homicide rate. Community pressure pushes all the actors within the criminal justice system to focus on felony arrests, prosecutions, and convictions, thus excluding domestic violence (and for that matter, most violent crime). (134)

The line between misdemeanor and felony violence makes sense in the context of stranger and acquaintance violence, but not in the context of domestic violence. (135) The defendant charged in the bar fight must face felony counts if he caused "serious bodily injury" or if he used a weapon. (136) Both factors represent increased dangerousness and harm. Yet, as described above, batterers focus more on control through pain than injury in and of itself. (137) Although the definitions of "serious bodily injury" in state law sometimes include a notion of serious pain, the pragmatic focus usually remains on lasting physical injury. (138) Batterers also use violence in a way that maximizes psychological torment and the deprivation of liberty more than visible injuries. (139)

B. Most Torture Techniques Remain Legal

I would add to the analysis of Professors Burke and Tuerkheimer the fact that many of the torture techniques described in Part I remain entirely legal under current criminal law. (140) For example, sleep deprivation violates no law, even when done for the purpose of causing extreme pain or anguish. (141) Torturers can make use of sexual humiliation legally, so long as they do not commit an unconsented touching of the victim's genitals. (142) Torturers can coerce victims into degrading sexual acts while still meeting the legal definition of consent under rape law. (143)

States even vary in how thoroughly they cover threats of violence. The law often punishes only explicit threats, not the kind of implied threats batterers frequently employ. (144) Nor does every state outlaw threats against others, such as threatening to kill the victim's loved ones. (145) And some states still struggle with conditional threats, such as "I will kill you if you leave me." Courts have dismissed conditional threats, for example, because they violated an imminence requirement, (146) though perhaps they would be covered under extortion statutes. (147)

Let me give an example of how poorly criminal law functions against domestic violence, making use of a rarely examined type of evidence in legal scholarship, the trial transcript of an acquittal. (148) On March 28, 2010, seventy-eight-year-old Alfred Andrews rolled into a New Orleans criminal court in a wheelchair, seeming weak and frail, and complaining about diabetes. (149) Andrews faced trial for a misdemeanor charge of domestic violence battery. (150) His thirty-one-year-old wife, Jennifer Muse, testified that, on the night in question, Andrews shoved her, causing her to fall and hit a pile of books and cut her face. (151) Andrews testified in turn that his wife started the fight and he had simply defended himself. (152)

The entire incident seemed petty, and the Commissioner hearing the case found him not guilty. (153) She acknowledged the ways that Andrews mistreated his wife but then characterized it as provocation: "Ms. Muse was probably right for not wanting to be awakened, she was weary and tired, but that's a part of the consequence, she married someone fifty years, forty years ... her senior. And, so that's one of the consequences." (154) The Commissioner assumed an equal power balance between the two and given the narrow scope of the trial, heard no obvious evidence to the contrary.

Two days after his acquittal, Alfred Andrews shot and killed his wife, her sister, and her mother before turning the gun on himself. (155) A neighbor interviewed on the local news described watching Muse's mother die on the porch. (156) She bled to death as the SWAT team determined whether Andrews was still a threat. (157)

The trial transcript is remarkable for what it does not cover. It necessarily focuses on a single, seemingly minimal incident of violence, with no reference to a history of abuse. Yet some facts, chillingly relevant in hindsight, did sneak in through the testimony of Muse. She described being woken regularly by Andrews in the middle of the night even though he knew she had to leave for work at four o'clock in the morning. (158) Andrews testified that he wanted to finish an argument with his wife, but that she left the room. (159) He said, "I object to that," and kept her from leaving. (160) She then took a stool to try to break the window and escape. (161)

Worst of all, no one did the math on their ages. Muse described a relationship that spanned fifteen years, meaning that it began in statutory rape when Muse was sixteen and Andrews sixty-three. (162) According to later news reports, Andrews impregnated Muse while he was dating and living with her mother and sister. (163) For more than a decade, he lived with all three women, sleeping with at least two of them, before killing them all. (164) There are many facts we will never know about this case because existing law deemed them irrelevant, but it seems likely, based on the clues at trial and on his ultimate killing spree, that Alfred Andrews ran a torture chamber of his own. The structure of criminal law guaranteed that no one bothered to find out.

III. A TORTURE STATUTE WOULD SOLVE MANY OF THESE LEGAL PROBLEMS

Professors Burke and Tuerkheimer would solve the current gaping holes in criminal law by broadening domestic violence statutes. Their proposals would punish patterns of violence and recognize coercive control. (165) I would focus instead on creating a torture statute that is not specific to domestic violence for three reasons.

First, a ban on private torture should easily pass legislatures without inspiring any organized opposition because no one publicly supports torture by private actors. (166) A torture statute closes gaps in existing law in a variety of contexts of acknowledged horror. It may not occur to legislators that the paradigmatic torturer in fact lives down the street, attacking only the members of his household. Instead, legislators can safely focus on drug kingpins, kidnappers, or serial killers in training. This proposal does not require persuading legislators to give special status to domestic violence victims.

Indeed, in Michigan and California, the states that have already passed general torture statutes, prosecutors have used their statutes to capture other egregious harms, such as home invasions and beatings of elderly victims, (167) as well as cruel and sadistic rapes of strangers. (168) Notably, prosecutors have also used torture statutes to capture the full pattern and horror of child abuse, another enormous benefit of torture statutes that I do not address here. (169) Finally, prosecutors have also gone after gang members and drug dealers who cruelly torture less sympathetic victims. (170)

Second, a torture statute can go farther than a "coercive domestic violence" statute to cover conduct beyond battery and threats. While both Professors Burke and Tuerkheimer acknowledge that violence represents the tip of a much bigger iceberg of abuse, they understandably do not attempt to stretch their proposed broader domestic violence statutes to explicitly cover conduct not already criminalized. (171) Torture statutes, including those already in place and described in Part IV, could capture far more misconduct without generating as much controversy.

Finally, the torture analogy accomplishes something profound to help the criminal justice system and the public understand the true nature of domestic violence. (172) When we conceive of torture, we understand things that elude us as to domestic violence. We do not blame the victim or assume she is weak. We comprehend that violence is but one tool of many, and that the torturer's ultimate goal is power.

A. Using a Torture Statute to Capture the Full Horror of Domestic Violence

I grapple with the specifics of a torture statute and the many problems of line drawing in Part IV, but first let me describe my general goals. A crime of torture would capture all of a batterer's physical violence and threats, tethering together discrete incidents into a full picture of the pattern of terrifying abuse. It would allow a prosecutor to describe a list of activities spanning a period of time, with specific examples, and without separating each individual act into a de minimis separate count. The statute would also allow for admission of the full evidence of abuse without resort to narrow Federal Rule of Evidence 404(b) exceptions.

Unlike most violent crime charges, torture would constitute a felony with sentences commensurate with the defendant's infliction of horror. Courts would no longer equate an egregious, repeated pattern of violence completed for the purpose of controlling another human being with a mere bar fight. The focus would shift to the defendant's intent to inflict severe pain and psychological scars, rather than whether the defendant caused actual physical injury.

The statute would force the justice system to look at the full span of evidence necessary to punish the defendant's wrongdoing and to better protect victims from murder. A charge of torture could reach back farther than the statute of limitations to cover the sum total of abuse, as conspiracy law currently allows. (173) It would allow appropriate charges against a batterer who engaged in torture spanning decades.

A torture statute would encourage police and prosecutors to seek the victim's full testimony about abuse, because, for the first time, the full story would prove legally relevant. By listing the less obvious torture techniques, the statute would map out the right questions to ask victims to understand the totality of abuse. As a result, law enforcement would delve into the complexity necessary to explain the motives of both defendant and victim, and to make those motives comprehensible at trial.

A torture statute also would encourage everyone in the criminal justice system to better assess the risk that domestic violence will result in murder. Almost uniquely among murder victims, domestic violence victims often approach the criminal justice system for help multiple times before ending up dead. (174) A system that focuses only on the latest discrete battery will miss the signals of impending homicide, which are measured more by the batterer's degree of control over his victim than by his previous violence against her. (175) A torture statute would encourage police, prosecutors, and even the judge setting bail, to ask the right questions for a "lethality assessment." (176)

A torture charge could include the techniques not currently banned by the law, including psychological torture, sexual humiliation, and sleep deprivation. Rather than isolate a single, often minor, incident in a way that makes the victim's behavior seem entirely counterintuitive, a torture trial would explain all of the ways the batterer trapped her. The judge or jury would finally hear the details of a victim stuck, because she was sleep-deprived, isolated from family and friends, and threatened with violence against her children.

A prosecutor would have far more discretion to use an expert in a torture trial in order to explain the nature and harm of the abuse. At present, courts allow use of such experts primarily to explain a victim who has recanted her testimony or failed to appear. (177) Courts are leery, however, of admitting expert testimony in a domestic violence trial in which the victim actually testifies and cooperates. (178) After all, there is no need to explain the concept of an act of battery to a jury, and such evidence risks being offered merely to bolster the victim's credibility. (179) In a torture trial, however, the prosecutor could legitimately use an expert to explain the harm that torture techniques create. (180) As I explain in the next section, the victim's physical and mental pain and suffering will be an element of the offense. (181)

A torture statute would make a long pattern of misdemeanor conduct finally add up to a serious felony. Torture would capture the full harm that batterer behavior causes to the victim and the community. And, a torture charge would create far more bargaining power for a prosecutor to exact a plea. (182)

Imagine if in the trial of Alfred Andrews the prosecutor could have brought a charge of torture that covered years of whatever violence Andrews had committed against his wife, her mother, and her sister. (183) First, the police officer responding to the incident would have been more likely to ask questions about past history and current danger. The officer might have discovered more evidence to predict the fact that the innocuous looking old man would soon commit a triple homicide. The prosecutor, in turn, might have spent the time necessary to determine whether she could bring a felony count by asking even more questions about the history of the relationship, the use of other torture techniques, and the degree of the defendant's control over his victim.

A felony charge of torture against Andrews would then have been acknowledged by the entire criminal justice system as worthy of resources. At the bond hearing, a felony charge would make clear the seriousness of the offense. A torture charge would help demonstrate the defendant's motive of controlling and owning his wife and her family; it would have covered his psychological torture and sleep deprivation along with the physical violence. (184) As such, it would have provided more clues about the risk of witness tampering and intimidation to the judge considering bail. In a jurisdiction with resources for witness safety, the prosecutor might have encouraged and provided help for the victim to hide.

A torture trial against Andrews would have presented the full picture of the defendant's actions based on evidence now deemed relevant and admissible. That evidence would have provided the jury with a better understanding of the victim's situation and thus her credibility. It probably would have described a lifetime of control over Muse, her mother, and her sister, enforced through some combination of violence, threats, sleep deprivation, and years of sexual abuse. Compare that possibility to the scant evidence actually presented to the court of a single pathetic shove. (185)

Because of this broader context, Andrews' trial under a torture statute might have resulted in his conviction, instead of the acquittal that emboldened him to take revenge against the wife who dared testify against him. (186) More to the point, a torture statute would have offered more than the possibility of a mere misdemeanor conviction and a resulting slap on the wrist. A felony conviction of torture, making clear the sum total of what Andrews did to his family for years, might have resulted in actual jail time. Further, it might have kept Jennifer Muse, her mother, and her sister alive.
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Title Annotation:Abstract through III. A Torture Statute Would Solve Many of These Legal Problems A. Using a Torture Statute to Capture the Full Horror of Domestic Violence, p. 183-218
Author:Tetlow, Tania
Publication:William and Mary Law Review
Date:Oct 1, 2016
Words:7105
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