Does it matter that we call it torture?
We usually think of torture as an act by the State against an individual, and, usually against an individual in prison or a detention facility. But what about the beating or rape of a woman by a private actor? Now, if this were to happen by say a prison guard in a state facility against a prisoner, that beating or rape may constitute to torture or inhuman and degrading treatment or punishment (if it meets the minimum standard of severity to constitute the same). So why do we use the term "domestic" or "family" violence for severe acts committed by private actors against women when the same acts if committed by the State, would have been considered torture?
Does it matter that we call it torture? Yes, it does. Torture and inhuman and degrading treatment or punishment (let's use "TIDTP" for short) are legal terms. It matters that a certain form of violence is charged and prosecuted as TIDTP because globally, there is recognition that TIDTP is one of the gravest crimes and violation of individual rights. So for instance, under the Torture Convention, the right to be free from torture is "absolute" and "non-derogable". So whilst States can derogate (reserve themselves) from certain kinds of rights, there is no situation or circumstance, however urgent, including national security that can justify the use of torture. Hence, it does matter that a deplorable act against an individual be identified as TIDTP. TIDTP is a serious label and triggers State obligation to prevent, stop and punish.
If domestic violence is a deliberate infliction of pain and suffering, why is it not usually prosecuted as torture?
Legal scholar, Catharine MacKinnon, identified that some forms of violence, like domestic violence, are "so normal they become invisible". This is what legal scholar, Rhonda Copelon, calls the "egregious in the everyday". The law falls short of viewing grave forms of violence as torture as law reflects the order of society and oftentimes, reinforces the power structure which makes up that society. As advocates of human rights, we push to make visible what is invisible. Our decades of struggle to redefine sexual violence as a crime against the individual as opposed to family honour, is one example of this.
The label is important. Gender-based torture has to be distinguished from common assault or beating. Torture triggers State accountability and the State is accountable for omission to act. So when the State fails to prevent and protect a victim from torture (e.g. pressuring a victim to withdraw her complaint, failing to protect or failing to comply with a protection order), then in addition to punishment of the perpetrators, individuals can have recourse against the State. This is important as it is true globally that most States are failing to respond and address violence against women.
There is permission or acquiescence by omission when failure to prevent, investigate, prosecute, punish and remedy becomes systemic. Perpetrators of grave acts of violence escape with impunity as their victims are women members of the family, painting a "domestic violence" gloss over the actual severity of the crimes. When the State omits to prosecute on the basis of who the victims are and their relationship to the perpetrator, it is a form of gender-discrimination.
Get in touch with me at natasha@sa-hr.org to discuss how we can report on and prosecute grave crimes of violence against women as a crime of torture.
