Under international law, the United States is obligated to criminalize acts of torture and cruel, inhuman, or degrading treatment. However, the federal criminal torture laws employ several terms whose meanings are so indeterminate that they inhibit the statutes' effectiveness and fail to provide adequate guidance regarding precisely which forms of mistreatment may result in prosecution. These ambiguous terms have given rise to serious and prolonged controversies within the executive branch regarding what torture is-controversies that confirm, and may further compound, the uncertainty of liability under the laws in question.
In order to solve this problem of vagueness and provide definitive guidance to persons in control of detainees, the torture statutes should be revised to prohibit specific forms of mistreatment. This task may be accomplished in a straightforward and logically consistent manner by observing the commonalities between torture and domestic violence, a form of abuse American states have sought to eliminate by outlawing specific types of conduct. Torture and domestic violence constitute two manifestations of the same underlying behavioral phenomenon: the use of isolation, pain, and humiliation to create a sense of fear and helplessness in the victim, thereby increasing his or her willingness to comply with the abusive party's demands. After establishing this fundamental similarity, this Note proposes a prototype for a revised federal torture statute based upon state domestic violence laws.
Sarah H. St. Vincent,
Coercion's Common Threads: Addressing Vagueness in the Federal Criminal Prohibitions on Torture by Looking to State Domestic Violence Laws,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol109/iss5/4