The Media has it Right: The Justice System has it Wrong—Misnaming Torture as Another Crime is Injustice

By Jeanne Sarson | Jan 31, 2012

A three month torture ordeal

He was forced to exist in a dark bedroom closet of a Toronto basement apartment, malnourished, naked, cold, shivering and wounded—he was/is an adult male. Razor blades were used to slice into his body. Punched and clubbed with hammers and broom handles until these broke from the impact, he had five fractured ribs, facial fractures and two collapsed lungs. Burn wounds were the result of his skin being set on fire using lighter fluid, aftershave, rubbing alcohol and hair spray. Steel-toed boots were weapons used for kicking him; pliers ripped cartilage from his ears; pins were stuck through and sealed his lips and mouth and hot knives were used to cauterize his bleeding wounds or these were sewn up with a needle and thread. Pictures showed his black and blue face bloated to “three times its normal size...and his eyes swollen shut as pus and plasma oozed from his wounds.” Every time his blood splattered onto the walls from being beaten he was surprised because, he says, “I didn’t know I had any blood left.” Power and control and domination were asserted by forcing the victim to write out no-win “house rules” such as “Do what it takes not to be stupid.” Sexual and psychological torture tactics violated him over the course of his three months of pain and suffering and he remained silent because he was threatened that his aging parents would be tortured if he told. Neighbours in the apartment building never heard anything. His rescue came after bystanders reported their concerns to the police.[1]

The Canadian political-legal system called this—what?

The media named these brutal acts as torture; the political-legal system named these, among other crimes, endangering a life and sexual assault causing bodily harm. The media named it right—the political-legal system has it wrong. It is true this man’s life was in danger—torture victimization is life-threatening. It is a global understanding that when a person is a victim of torture they are enduring life-threatening inhuman, cruel and degrading severe pain and suffering, physically and mentally, brutalities that were/are being intentionally inflicted. It is also a global human right standard that torture perpetrated by private individuals (called non-state actors in human rights language) must not be misnamed as being other forms of crime such as endangering a life or sexual assault causing bodily harm for example. 

Implementation gap

Often or more appropriately stated, an implementation gap can/does occur whereby there exists a lag between law reforms and the relational transformations that are occurring within a society and its culture. For example, at one time there were laws that prevented women from having the right to vote, this did not change until women and men rallied against such ‘lawful’ oppression. Similarly, the civil rights movement had to occur to transform legal systems. Both of these examples are relational—one of sexism, the other of racism. Criminal codes are, in my opinion, relationship books because they spell out what we should or should not do to each other relationally. One of the acts we should not do—must not do—is torture others. It is time for countries that have not made non-state torture (NST) illegal to do so. Canada is one country that has failed to recognize and criminalize NST that happens in the domestic or private sphere, such as in the apartment of the victim described in the opening paragraph. This implementation gap is shameful. In Canada, this means that legal discrimination exists within the Criminal Code of Canada because victims of NST cannot seek justice for acts of NST they endured. The present Criminal Code of Canada only brings charges of torture if the perpetrator is/or represents an ‘official’ of the Canadian government (known as State actors). Do you know what the laws are in your country? 

Make no mistake: Torture is a specific and distinct crime and human right violation

Freedom from torture victimization is a fundamental human right of all persons that must be absolutely protected and prevented under all circumstances, at all times and in any place, in the public or domestic/private spheres, whether perpetrated by State or non-state actors. Torture has attained the legal status of jus cogens,[2] meaning (a) it is considered one of the worst, most destructive human right violations and crimes that one person can inflict onto another, (b) its prevention applies to all countries and its citizens, and (c) it should not be trivialized by naming it as another form of violence.[3] In other words, NST such as suffered by the man described in the opening paragraph, as well as by others so victimized in Canada and around the world, must not be misnamed and misrepresented in courts of law as another crime as is presently occurring in Canada. 

The UN Committee against Torture imposes obligations on countries “to take actions that will reinforce the prohibition against torture through legislative, administrative, judicial, or other actions that must, in the end, be effective in preventing it,” (para. 2) whether perpetrated by State or non-state actors.[4] The actions recommended by the Committee are:

1. To name and define the crime of torture as this alerts everyone—perpetrators, victims, and the public, to the special gravity of the crime of torture.

2. To criminalize torture, whether perpetrated by State or non-state actors, because: (a) It emphasizes the gravity of the crime and appropriate punishment, (b) This strengthens the deterrent effect, (c) It enables State responsibility to track crimes of torture, (d) It enables and empowers the public to monitor and, when required, to challenge the actions or inactions of a country that violate Convention against Torture (CAT), and (e) State parties are obligated to eliminate any legal or other obstacles that impede the eradication of torture and to keep under review, and improve and revise national laws and performance in a process of continual socio-legal evolution.

3. The failure of the State to intervene encourages and enhances the danger of privately inflicted harm; if State parties do not impose the offence of torture punishable under its criminal law actual or potential loopholes for impunity occur.

Our experiences

From Linda and my almost 19 years of engagement with persons who detail the NST they survived, either as infants/children and/or as adults, there are other negative consequences that occur when a society and its legal system fail to acknowledge NST as a specific crime. These are:

(a) NST-informed services do not develop to provide the degree of support required, this includes  informed healing services,
(b) Police protection is generally not forth-coming because they are unaware of the depth of the violence—the NST—the victimized person is being subjected to,
(c) When police or community services protection is uninformed the victimized person—child or adult—is at risk for chronic episodes of re-victimization by the torturer(s), including criminal stalking/harassment, death threats if they tell, assaults, and torture. Additionally, women report reproductive sexualized tortures such as forced impregnation and abortions/deliveries and on-going forced human trafficking and forced ‘pornographic’ victimization that occurred when they were children and/or as women,   
(d) Victimized person’s presentations are at risk of being misunderstood therefore they are at risk of being maltreated, pathologized, marginalized and socially excluded, and
(e) The lack of informed support increases their vulnerability which can make them susceptible to secondary re-victimization by health and service providers; for example, women report being raped when in hospital, in private clinics and in home-based offices by professionals who were supposed to deliver care. They report being silent because their opinion was they would not be believed if they reported the assaults or they believed that they were at fault, that they caused the assaults. Like the man in the opening paragraph they remained silent because of the death threats directed at them. And, no one ever heard their silent cries of pain and suffering.

A conscious choice? A responsible social position against injustice

Linda and I strongly disagree with socio-legal positions that presently exist in Canada and elsewhere that make it permissible to misname NST as another crime. Once knowledge is present that NST has occurred, such as in the legal case of the man presented in the opening paragraph, it becomes not only a conscious informed decision of bystanders to challenge the socio-cultural and legal implementation gap but it is also the responsibility of departments of justice and all political parties to uphold the human and legal right of all citizens not to be subjected to NST. In Canada this means amending the Criminal Code of Canada by making non-state torture a specific and distinct crime and human right violation. It is time for Canada, and all countries, to operationalize the human and legal right that “No one shall be subjected to torture”.

Acknowledging torture happens in the home.

Endnotes

[1] These details are from: Casey, L. (2012, January 13). Torture case: Crime was hushed so effectively not even neighbours knew. The Star; Poisson, J. & Casey, L. (2012, January 13). Man brutally tortured by his wife and her boyfriend in Toronto apartment Tortured mercilessly by his own wife and her new boyfriend, victim was too broken to escape. Toronto Star; Poisson, J. & Casey, L. (2012, January 13). Man tortured in a closet raises disturbing questions. The Star; Fong, P. (2012, January 15). Torture victim tells of 3-month ordeal in Toronto apartment. The Star.

[2] UN Committee against Torture. (2008, January 24). General Comment No. 2 Implementation of article 2 by State parties. (CAT/C/GC/2). Available http://www.unhcr.org/refworld/docid/47ac78ce2.html

[3] Nowak, M. (2010, February 5). Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment. Study on the phenomena of torture in the world, including an assessment of conditions of detention. Available http://www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A.HRC.13.39.Add.5_en.pdf

[4] UN Committee against Torture. (2008, January 24). General Comment No. 2 Implementation of article 2 by State parties. (CAT/C/GC/2).