“It’s a no-brainer”: Fixing the Criminal Code to Include Non-state Torture

By Jeanne Sarson | Feb 21, 2012

Sitting with a wise lawyer, he, his partner, Linda and I were discussing how simple it would be to fix the Criminal Code of Canada so that non-state torture (NST) would be criminalized. His words were, “It’s a no-brainer.”

“It’s a no-brainer”: Fixing the Criminal Code of Canada

To criminalize NST all that is legally required is an amendment to section 269.1 on torture of the Criminal Code of Canada. Instead of reading “Every official ...” the language would read: "'Every one' who inflicts torture on any other person is guilty of an indictable offence and liable to imprisonment ....” Replacing the stipulation of “every official”—persons who represent the government of Canada—with 'every one' means Canada will not tolerate or will not look the other way when any person decides to inflict acts of torture against another human being be they infant, toddler, older child or adult. For clarity, “officials” are sometimes also referred to as “State actors”. Private individuals who commit non-state torture are referred to as non-state actors.

The “R” Factor: Resistance to Fixing the Criminal Code of Canada

In this Blog I share the various forms of resistance that Linda and I, and persons so tortured, meet when discussing that non-state torture atrocities are perpetrated within domestic/private relationships—daily, weekly, monthly and yearly. I shape these experiences of resistance as follows:

1. Just semantics. Bystanders argue that using assault charges to describe non-state torture is sufficient, that seeking a separation and distinction between assault and non-state torture is just semantics. This view discredits the importance of the study and the meaning of language and its words. Language and its words carry and transmit contextual meaning to life events. In this case, the words non-state torture prevent whitewashing the severity of the torture pain and suffering that some infants, toddlers, older children and adults have, are and will endure. Acts of torture are described as one of “the most insidious evils” that one person can inflict against another.[1]

2. Recognizing domestic torture in law will devalue recognizing the seriousness of State torture. Others have told us that if domestic torture is given socio-legal recognition it will devalue the torture that happens in jails for example, even when the tactics of the domestic torturer are similar to the State torturer—the jailer. This perspective delivers to victimized persons that they and their suffering as human beings are of lesser worth than the person in the jail cell who is tortured. Neither is consideration given to the unconscionable violation of trust that occurs when the torturer is someone who the victimized person—the infant, child or adult—knows and depends on—parents, other family members, guardians, spouses, or peers for example.

3. Recognizing domestic torture will minimize domestic assault. This position is similar to the previous position as individuals argue that by naming and accepting that torture happens in the home this will minimize the seriousness of domestic assaults. Distinguishing non-state torture from assaults is not a competition to see which victim is worse off; non-state torture is a specific and distinct human rights violation and crime just as other crimes name the violation a specific person has suffered be it an assault, or robbery, or vehicular homicide, or be it torture. 

4. An existing legal provision perspective. This position suggests non-state torture can be covered under present laws by renaming non-state torture another crime such as physical or sexualized assaults or human trafficking. It ignores, for example, developing international and national human right due diligence obligations that mandate that torture must not be misnamed as another crime.

Consequences of Resistance 

It is most poignant to me that not one of the above discourses ever asked: What do survivors need to be safe? What support do they require to heal? Will acknowledging that non-state torture occurs help with prevention? These questions raise consequential concerns, such as:

1. Lack of empathy. Where is the indication of empathic concern for the infants, toddlers, children and adults so tortured? Even when it is presently known that healing and recovery from torture victimization requires the “effective pursuit of justice.”[2]

2. Justice denied. If they so choose, victimized persons deserve the legal ability to take before the courts the crime of non-state torture suffered if they are have their human dignity restored.

3. Social exclusion. Consequently, individuals who have contacted Linda and I generally inform us that socio-legal silencing inflicts painful feelings of social exclusion, to which are ‘velcroed’ oppression, marginalization, and discrimination.

4. Discrimination and stigmatization. In a discrimination and stigmatization (D&S) questionnaire on our website in 2010, 96 people responded, as shown 87 (91%) were women. Eighty-six (this represented 92% of 94 individuals) stated they experienced D&S following disclosure of various forms of NST with 76 (83%) stating D&S was experienced for years. Eight reasons for these D&S experiences are shown in the accompanying diagram.

5. Prevention and impunity. International knowledge considers it necessary that when acts of non-state torture occur, regardless of who the perpetrators are, non-state torture must be named otherwise prevention interventions do not develop and the torturers will enjoy ongoing impunity.

6. Non-state torture informed services do not develop.  If there is no public/professional awareness regarding the existence of non-state torture victimization ‘blind spots’ develop in protective, investigative, and recovery services.  Referring back to the eight items listed in the D&S diagram reveal some of the impacts of such ‘blind spots’ on victimized persons. Of course, ‘blind spots’ fail victimized infants and very young children as they must rely on non-perpetrators knowledge to take action that would be in their best interest for their safety.

Other Discourses and Challenges

Besides the previously mentioned ‘R’ factors, Linda and I are frequently asked (a) about our personal experiences regarding relational violence, (b) for examples of NST court cases, and (c) why is it necessary to separate NST from aggravated assault and its potential for a 14 year sentence. I briefly address these issues next:

1. Questioning us on our personal experiences. This question is usually shaped by asking us how we know that what we have borne witness to when listening to a victimized person’s horror is torture and not domestic abuse/assault. Answering this question truthfully means both Linda and I speak about being born into relational “family violence”. Linda’s father’s gun (the photo shown here) stood in the upstairs cabinet ready to be wielded at a moment’s drunken notice. Knives, fists and boots brought life-threatening nights of witnessing spousal battery, occasions that led to a mother’s unconsciousness. Nights and days filled with drunken misogynistic put-downs--“cunt, whore and bitch” were words familiar to our childhood ears. If escape could be found my nights were spent crying and shivering hiding in the woods until safety meant a drunken stupor had silenced the abuser—my father. Even the dog ran for cover, his tail between his legs. When he died of distemper his dead body lie on our kitchen floor for several days because our terror was too great to move his decaying body until my father gave permission. Hours turned into days and days into years of knowing intimately the meaning of relational domestic assault/abuse at a time when there was no community support because such relational assaults were considered “a family matter”. This is the experiential information, of “how do we know the difference”, albeit, a very brief peek into the chapters of our childhood, that first informed our knowing about domestic assaults. When the first woman came to us desperately asking for help and began to describe the victimization she had and was still suffering, we knew instantly the ordeals she was describing were not of assault/abuse. We knew we were listening to acts of non-state or domestic torture and horrification. It was and remains the literature of victim’s of State torture that we turn to for support because little is written of non-state torture occurring in the domestic/private sphere being a specific crime and human rights violation or of its impact on persons so tortured.

2. NST court cases. Providing examples of Canadian legal cases of domestic non-state torture is impossible. Without a law on domestic torture no Canadian legal case can go to court under the specific charge of non-state actor torture. Canadian law only permits torture crimes to be considered when it is inflicted by State actors (i.e., police or military personnel) as discussed in the previous paragraph of “no-brainer”. When the same acts are perpetrated by non-state actors such as a spouse or parent these acts of torture are renamed as acts of assault, hence persons who have been so tortured face discrimination in law. Amendments to the Criminal Code of Canada (or any criminal code) need to occur to remove such discriminatory effects.

3. Sentencing.  The length of sentence is not the issue; the issue is understanding that the intentional infliction of cruel, inhuman and degrading acts of non-state torture differentiate it from the acts of assault. This ability to differentiate one from the other is the point. For this to occur there needs to be: (a) socio-legal internalization that abhors the existence that non-state torture cruelty is inflicted against some infants, toddlers, children and adults, and (b) a socio-legal disdain that Canada is not enacting its due diligence obligations to protect and prevent torture that is perpetrated by domestic non-state actors.

Abhorrence and Disdain: Responses to the Knowledge Non-State Torturing Occurs in our Culture

Obviously, Linda and I, and others, have made our stance that non-state torture needs to be legally exposed as a specific and distinct criminal human rights violation. For us, it would be an act of inhumanity to turn-off our knowledge that infants, toddlers, children and adults have survived or have died as a consequence of the intentional infliction of severe torture pain and suffering, physical or mental, perpetrated within the domestic/private sphere.

Often individuals say to Linda and me that they are glad that we do what we do because they couldn’t bear listening to the horrors of domestic torture ordeals. They do not accept that the crime of non-state torture in the domestic sphere is silenced, invisible and misnamed. They do not deny the unconscionable reality that infants, children and adults can and do endure torture victimization inflicted by parents, other family members, guardians, spouses and like-minded others. And they struggle with the conceptualization that torturers are driven by a variety of reasons for doing what they do. Especially distressing is learning torturers take pleasure in torturing.

Since 1993, Linda and I have repeatedly listened to victimized persons as they speak of the pleasures of the torturers. How the torturers pleasures increased their feelings of dehumanization, their agony and searing humiliation and degradation that compounded the severity of their pain and suffering. One woman, Lynne, when retelling of the torture she endured that was inflicted by her spouse and three of his “goons” (her words), stated it this way:

Every time his torturing created terror in my eyes, he’d say, ‘Look at me bitch; I like to see the terror in your eyes.’

We stand firm that it is unacceptable—it is inhuman—it is and will be destructive—to continue to invisibilize the persons and the human right violation and the crime of non-state torture they have suffered.

Endnotes

[1] United Nations. (1985). Outlawing an ancient evil: Torture. Department of Public Information, p. 1.
[2] Medical Foundation for the Care of Victims of Torture. (2009, December). Justice denied: The experiences of 100 torture surviving women of seeking justice and rehabilitation. Medical Foundation Press Office.