Torture in the Eyes of the Beholder: The Psychological Difficulty of Defining Torture in Law and Policy

36 Pages Posted: 6 May 2011 Last revised: 10 May 2011

See all articles by Mary-Hunter McDonnell

Mary-Hunter McDonnell

The Wharton School - The University of Pennsylvania

Loran Nordgren

Northwestern University - Department of Management & Organizations

George Loewenstein

Carnegie Mellon University - Department of Social and Decision Sciences

Date Written: May 3, 2011

Abstract

This Article draws upon recent social psychological research to demonstrate the psychological difficulty in distinguishing between torture and enhanced interrogation. We critique the accuracy of evaluations made under the current torture standard using two constructs – reliability and validity – that are employed to assess the quality of a construct or metric in the social sciences. We argue that evaluations of interrogation tactics using the current standard are both unreliable and invalid. We first argue that the torture standard is unreliable because of the marked variation in the manner in which different jurisdictions interpret and employ the torture prohibition. Next, we draw on recent social psychological research to demonstrate the standard’s invalidity. We identify the existence of two separate systematic psychological biases that impede objective application of the torture standard. First, the self-serving bias – a bias that motivates evaluators to interpret facts or rules in a way that suits their interests – leads administrators to promote more narrow interpretations of torture when faced with a perceived threat to their nations’ security. Thus, the threshold for torture is tendentiously raised during exactly the periods of time when torture is most likely to be used. Second, our own research on the hot-cold empathy gap suggests that an assessment of an interrogation tactic’s severity is influenced by the momentary visceral state of the evaluator. People who are not currently experiencing a visceral state – such as pain, hunger, or fear – tend to systematically underestimate the severity of the visceral state. We argue that, because the people who evaluate interrogation tactics are unlikely to be experiencing an extreme visceral state when making their evaluations, the hot-cold empathy gap results in systematic underestimation of the severity of tactics. The hot-cold empathy gap leads to the application of an under-inclusive conception of “torture” in domestic interrogation policy and international torture law.

Keywords: torture, human rights, psychology

Suggested Citation

McDonnell, Mary-Hunter and Nordgren, Loran and Loewenstein, George F., Torture in the Eyes of the Beholder: The Psychological Difficulty of Defining Torture in Law and Policy (May 3, 2011). Vanderbilt Journal of Transnational Law, Vol. 44, No. 1, 2011. Available at SSRN: https://ssrn.com/abstract=1830714

Mary-Hunter McDonnell (Contact Author)

The Wharton School - The University of Pennsylvania ( email )

3641 Locust Walk
Philadelphia, PA 19104-6365
United States

Loran Nordgren

Northwestern University - Department of Management & Organizations ( email )

Evanston, IL
United States

George F. Loewenstein

Carnegie Mellon University - Department of Social and Decision Sciences ( email )

Pittsburgh, PA 15213-3890
United States
412-268-8787 (Phone)
412-268-6938 (Fax)

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