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Abstract: 

Although the concept of torture is commonly recognized as a criminal act subject to sanctions, very few states have enacted statutes that treat torture as a “stand-alone” crime. Rather, torture typically arises in capital cases as an aggravating factor. This article examines the way torture is defined—and misapplied—in the case law and argues that a clear legal standard is required to distinguish torture, which requires specific intent, from other types of violence. Part I, presented here, describes how the common approach to defining torture— that is, by pointing to a defendant’s conduct as illustrative of the crime—leads to misapplication of the term. This part also explains the legal context in which torture typically arises and the need to clearly define and apply the term to avoid constitutional challenges by defendants. Part II, which will appear in the next issue of SLR, presents the specific characteristics that comprise the crime of torture.

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Affiliations:  1: Managing Editor of SLR.