Understanding Non-State Torture Crimes: When will Victim’s have Equal Legal Rights?

By Jeanne Sarson | Feb 14, 2012

Non-state torture (NST) is the crime the unidentified victimized person repeatedly stated he suffered. There is no section in the Criminal Code of Canada that permitted this victimized person, or permits any Canadian citizen, so harmed to claim such a legal right. Instead this person’s victimization was brought into the court reduced to aggravated and sexual assault as well as unlawful confinement. Brief insights taken from media reports reveal that the present legal system permitted aggravated assault to mean being starved (to a weight of 87 pounds), being stabbed and burnt, being mutilated as this man was with parts of his tongue and lips cut off, being severely and repeatedly beaten with damage to his eye orbits, his nose, cheeks, jaw, and ears that has/will require surgical repair and reconstruction. As well, he suffered dental damage, broken bones, muscle and ligament damage, and brain injury. Sexualized victimization that was repeatedly inflicted over the prolonged period of 18 months.[1] I have been unable to find media reports as to whether the court considered the emotional, psychological humiliation, degradation, and dehumanization that occurred when this person, or any Canadian citizen, suffers severe and prolonged cruel, inhuman or degrading acts perpetrated against their personhood. 

Cruel, Inhuman and Degrading Acts

I refer to the words “cruel, inhuman or degrading” because these are the words that title and identify the United Nations human rights instrument on torture. It is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, abbreviated as CAT which Canada ratified on December 24, 1987.

Are the acts of the victimized male described above not “cruel, inhuman or degrading”? What prevents the Canadian socio-legal system from seeing these acts from this perspective of being acts of non-state torture? This answer lies in exposing that CAT came operationalized and tainted with a patriarchal discriminatory bias. That is, it delivered the global-to-national legal message that CAT was to etch out human rights protection for warring men, or men engaged in terrorism, so they would not torture each other when captured, for instance. There was little, or maybe more appropriately, there was no thought given to torture being a human right crime inflicted in the private/domestic sphere. Therefore, the answer as to why cruel, inhuman or degrading acts cannot be identified as non-state torture is because this patriarchal discriminatory bias continues to exist in our Canadian legal system whereby only victims who endure cruel, inhuman or degrading acts of torture inflicted by State actors (i.e., police, military, or government officials) are permitted the legal right to have such victimization identified as torture under section 269.1 of the Criminal Code of Canada. This patriarchal discrimination obstructs the cruel, inhuman or degrading acts suffered by any citizen, including the man described in the opening paragraph, as being legally considered cruel, inhuman or degrading acts that would constitute non-state torture. 

Exposing Fundamental Patriarchal Discrimination

Patriarchal discrimination can be and must be challenged if justice is to be available to individuals—infants to adults—who have and will suffer NST. The UN Universal Declaration of Human Rights, of 1948, article 5 states that “no one shall be subjected to torture or cruel, inhuman or degrading...” acts.  According to the words of the Declaration this means all women and men—as equal members “of the human family”. Thirty-six years after the Universal Declaration of Human Rights, CAT was adopted by the General Assembly of the UN in 1984. It was infected with the fundamental patriarchal discriminatory bias that conditioned the world, conditioned Canadian systems and citizens, to believe that the human right to be protected from torture remained limited to the public sphere of States and State actors.

Gradual Breaks in the Fundamental Patriarchal Human Rights Discrimination

Breaking through this fundamental patriarchal human rights discriminatory bias has been a struggle that activist women and some men have taken on. In 1996, the UN Special Rapporteur on violence against women included torture of women in the private sphere in her 1996 report.[2] By 2008,[3] and again in 2010,[4] Manfred Nowak, UN Special Rapporteur on CAT, was listening and broke down the fundamental patriarchal discriminatory bias further by positioning, in his reports, the reality that some acts perpetrated against women in the private/domestic sphere constituted torture by non-state actors. Dissolving this fundamental discrimination has continued to grow in subsequent reports as well as in the General Comments of the UN Committee against Torture. The purpose of sharing this historical backdrop is to say that although breaking through this fundamental patriarchal discrimination has been focussed on gaining human rights equality for women and girls not to be subjected to non-state torture perpetrated by non-state actors in the private sphere, these efforts open up equality for boys and men not to be subjected to similar acts of non-state torture in the private/domestic sphere. Freedom from torture is a non-derogable human right of all persons that must be protected under all circumstances, at all times and in any place, in the public or private spheres, whether perpetrated by State or non-state actors. It is impermissible to trivialized, minimized, or misnamed acts of torture as another crime such as an assault.[5]

Definition of Torture

Defining the elements of torture begins with those set in article 1 of CAT.[6] These keep evolving in how torture victimization is understood and applied as the patriarchal discrimination breaks down. The term “torture” means any act whereby:
1. Severe pain and suffering, whether physical or mental, is inflicted against a person,
2. This severe pain and suffering is inflicted intentionally on a person,
3. The intentional infliction of severe pain and suffering, physical or mental, is done with purpose; purpose can include discrimination of any kind, 
4. There is consent or acquiescence given by the State when the State is aware that acts of torture are occurring whether perpetrated by State or non-state actors in the public or private spheres; therefore, the State fails in its due diligence responsibilities to protect and prevent citizens’ human rights. A Canadian governmental delegate admitted to the UN Committee on the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) that non-state torture was occurring in Canada but was being criminally referred to as simple, aggravated or sexual assault, forcible confinement, for example;[7] and,
5. In 2008, the infliction of powerlessness of the victim was added as a defining element.[8]

Powerlessness and the Crime of Non-State Torture

If the crime of NST was in the Criminal Code of Canada, the severe pain and suffering that was intentionally inflicted onto the victimized male described in paragraph one would not have been broken down into legal sections of aggravated and sexual assault and unlawful confinement. Instead the holistic defining elements of torture described as the severity of pain and suffering, physical and mental, intentionally inflicted onto him would have been considering factors in the decision of whether the crime of non-state torture applied. The intensity of pain and suffering is a measure that distinguishes torture from other crimes. Additionally, discrimination against a victimized person can come from multi-biases whereby one person—the perpetrator—decides to deny the victim their rights and freedoms. Discrimination comes from the otherization of another human being. Perpetrators carry beliefs and practices that ‘permit’ one person—the perpetrator—to discriminate, devalue, stigmatize, scapegoat and dehumanize another human being—the victim—by committing gross cruel, inhuman and degrading human right violations against them such as non-state torture. Based on Linda and my experiences of coming ‘to know’ non-state torturers through the witnessing of the terror, torture and horrification stories of victimized persons, non-state torturers present with superiority and discriminatory otherization, objectification and dehumanization of those they decide to torture. Torturers know what it is they are doing. 

If NST was a specific and distinct crime physical restraints of unlawful confinement would not be the deciding measures related to creating a state of victim captivity—the creation of victim’s state of powerlessness is what needs to be considered and understood. A torture victim’s powerlessness must not be confused with the perpetrator’s tactics of domination because domination is a tool just as a wooden two-by-four is a tool; both are used to intentionally inflict acts of severe pain and suffering, physical and mental, in order to secure their victim’s powerlessness. Based on Linda and my experience physical restraint of a victim of non-state torture is not necessary to create powerlessness. People respond in various ways to life-threatening ordeals such as torture victimization—some try to run or escape, some try to fight back, some freeze, and some respond relationally or all these forms of responses can fluctuate on a continuum over periods of time. Responding relationally means that a person caught in a life-threatening ordeal perpetrated by those close to them may try to figure out how to make the relationship work—they try to do ‘good’, they try to act in ways they believe will put a stop to the ordeal—NST for example. Torturers generally tell victims that it is their fault, that they are to blame for what is happening which can transfer a belief to the victim that they—the victim—is at fault, that they are to blame, that they have done something wrong. Therefore, the victim comes to believe that if they can figure out what they have done wrong then the ordeal—the NST—will stop. Based on Linda and my experience, relational responses are common when the perpetrator is someone who is intimate in the victimized person’s life—a parent, a spouse, a friend, a peer, for example. And the victimized person frequently minimizes the degree of violence, even NST, they are suffering. Consequently, even if the victimized person is mobile they return to the relationship thinking/believing the NST will stop, unaware that as the severity of the torture pain and suffering continues so too does their powerlessness—mental and physical. For example, being starved and overworked clouds the ability to problem-solve thereby increasing the victim’s powerlessness, as does the severe pain and suffering caused by cruel, inhuman or degrading acts. Powerlessness continues as physical injuries continue to be intentionally inflicted and the victim’s life becomes at risk.

Sexualized Pain and Suffering in the Crime of Non-State Torture

Language that addresses sexualized violence is so often misconstrued. For example, in relation to the perpetrator who was found guilty of the sexual assault of the unidentified victim in paragraph one, the following judicial statement was made that “he [the perpetrator] used sex as a further weapon of assault.”[9] If it were possible to bring forth NST as a specific and distinct criminal act, acts of sexualized torture would be included within the defining element of the intentional infliction of severe pain and suffering. It is important, again based on Linda and my experiences, that a person who is a victim of NST hears that the sexualized torture was not and never will be “sex”. Sexualized non-state torture tactics must be understood to cause severe pain and suffering; mental suffering caused by deeply scaring humiliation and degradation; physical pain and suffering depending on physical force and objects used, for example. Although Linda and I do not have specific information relating to the victim introduced in the beginning paragraph, the reality of NST victimization that Linda and I know has generally always involved sexualized tortures of the victim that cause emotions of deep dehumanization, humiliation and degradation which cause severe mental pain and suffering. Victimized persons have recounted to us the mental severity that occurs when their personhood and bodies are invaded by acts of sexualized torture, acts which generally are repeated and repeated. Imagine how much suffering occurs when a victim endures a 100, 300 or 500 NST sexualized violence violations. Some persons so victimized, whose NST victimization began in fancy and continued into their early adulthood, have suffered 10,000 torture rapes. Such destructive suffering against any person who has been a victim of NST must not be minimized to a sexual assault and never referred to as "sex". 

What is Required for Victims of NST to Seek Just Justice?

When criminal charges are taken forward into court decisions are made to ‘match’ the alleged crime with the sections of the Criminal Code of Canada that ‘best’ suit. For persons who have suffered the crime and human rights violation of NST they presently do not have this legal right; they require this legal right; it is critical to their healing process. Canada and its justice system have due diligence obligations to promote and protect human rights. Freedom from torture is a non-derogable human right of all persons that must be protected under all circumstances, at all times and in any place, in the public or private spheres, whether perpetrated by State or non-state actors. The UN Committee on CAT writes about State obligations—Canada’s obligations—in this way:[10]

Where State authorities or others acting in official capacity or under colour of law, know or have reasonable grounds to believe that acts of torture...are being committed by non-State officials or private actors and...fail to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private actors consistently with the Convention, the State bears responsibility and its officials should be considered as authors, complicit or otherwise responsible under the Convention for consenting to or acquiescing in such impermissible acts. Since the failure of the State to exercise due diligence to intervene to stop, sanction and provide remedies to victims of torture facilitates and enables non-State actors to commit acts impermissible under the Convention with impunity, the State’s indifference or inaction provides a form of encouragement and/or de facto permission (para. 18).

The Committee goes on to write about the obligations on States parties to take the following actions: 
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) This addresses the gravity of the crime, 
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 State action as well as State inaction that violates the Convention, 
e) States 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 evolution.
3. Including remedying the failure of the State to intervene because this encourages and enhances the danger of privately inflicted harm; if States parties do not impose the offence of torture punishable under its criminal law actual or potential loopholes for impunity occur.

All persons who have survived NST require their right to seek criminal charges for the specific and distinct crime of non-state torture suffered. Seeking justice comes with the right to speak their truth, to be heard, to be listened to with dignity and respect. To have a person’s NST victimization minimized to another crime is a socio-legal failure and is harmful to the victimized person as it is experienced as a form of re-victimization.

Victim impact statements permit opportunities for victimized persons to speak of such injustices and the consequential feelings of revictimization suffered when they are denied legal equality to name and have legally recognized the crime of NST. Until a victimized person can have access to equality before the law as a person who has survived NST in their own country justice will not be considered to have occurred. Besides the injustices expressed by a victimized person, our developing humanity will stall until we remove the cruel, inhuman and degrading acts of non-state torture from our human relationships. The law on non-state torture is essential for this transformation. 

Endnotes

[1] This information comes from: Graveland, Bill. (2012, February 7). Paxton guilty of aggravated, sex assaults on roommate. The Globe and Mail, p. A5; Fong, Petti. (2010, December 28). Man in torture case seeks change to law. Toronto Star, p. A10; Quan, Douglas. (2010, December 28). Victim wants torture added to criminal code. Calgary Herald, p. A11; CBC News. (2010, September 1). Early 911 call ignored in LaFortune torture case. Author; Polischuk, Heather. (2010, August 26). Victim of brutal torture-confinement to join mother in Victoria. Postmedia News.
[2] Coomaraswamy, Radhika. (1996, February 6). Report of the Special Rapporteur on violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, submitted in accordance with Commission on Human Rights resolution 1995/85. Commission on Human Rights, Fifty-second session, Item 9(a) of the provisional agenda (E/CN.4/1996/53). 
[3] Nowak, M. (2008, January 15). Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development. Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (A/HRC/7/3, para. 28).
[4] 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 (A/HRC/13/39/Add.5).
[5] Ibid. 
[6] UN. (1984). Convention against torture and other cruel, inhuman or degrading treatment or punishment.
[7] CEDAW. (2009, January 28). Committee on the Elimination of Discrimination against Women, Forty-second session Summary record of the 854th meeting (Chamber A). Held 22 October 2008 (CEDAW/C/SR.855 (A), paras. 46). Palais des Nations, Geneva. 
[8] Nowak, M. (2008, January 15). Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development. Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment (A/HRC/7/3, paras. 28, 29).
[9] Graveland, Bill. (2012, February 7). Paxton guilty of aggravated, sex assaults on roommate. The Globe and Mail, p. A5.
[10] UN Committee against Torture. (2008, January 24). General  comment No. 2 Implementation of article 2 by States parties (CAT/C/GC/2).