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Mental Torture: A Critique of Erasures in U.S. Law

56 Pages Posted: 30 Mar 2011  

David J. Luban

Georgetown University Law Center

Henry Shue

University of Oxford

Date Written: March 28, 2011

Abstract

Both international and federal law criminalize mental torture as well as physical torture, and both agree that “severe mental pain or suffering” defines mental torture. However, U.S. law provides a confused and convoluted definition of severe mental pain or suffering - one that falsifies the very concept and makes mental torture nearly impossible to prosecute or repress. Our principal aim is to expose the fallacies that underlie the U.S. definition of mental torture: first, a materialist bias that the physical is more real than the mental; second, a substitution trick that defines mental pain or suffering through a narrow set of causes and effects, ignoring the experience itself; third, a forensic fallacy, in which the due process requirements of specificity in criminal law become wrongly identified with defining characteristics of the crime of torture (an understanding that loops back to corrupt the law); and fourth, a mens rea requirement that excludes all mental torture not committed with the sadistic intention of causing long-lasting harm. Our article begins with an analysis of the concept of mental pain and suffering, as well as a factual discussion of U.S. practice. We also examine the legislative history of the definition in U.S. law. We demonstrate that it derives from political concerns that other countries might accuse U.S. law enforcement personnel of torture. We conclude by examining the specific evil of mental torture: the merciless attempt to break down and occupy the personality of the victim.

Keywords: criminal law, torture, international law

JEL Classification: K00, K10, K14, K33

Suggested Citation

Luban, David J. and Shue, Henry, Mental Torture: A Critique of Erasures in U.S. Law (March 28, 2011). Georgetown Law Journal, Forthcoming; Georgetown Public Law Research Paper No. 11-31. Available at SSRN: https://ssrn.com/abstract=1797806

David J. Luban (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

Henry Shue

University of Oxford ( email )

Mansfield Road
Oxford, Oxfordshire OX1 4AU
United Kingdom

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