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The new crime of Torture and how it is proven in Court

On Behalf of | Aug 29, 2022 | Domestic Violence

Nature of Crime. Proposition 115, adopted at the June 1990 primary election created the crime of torture. The crime consists of the infliction of great bodily injury on the person of another, “with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.” Like child, animal, or spousal abuse, torture can, as a matter of reason, be committed as a single act or as a series of acts, i.e., a course of conduct over time. [torture consisting of beatings and abuse over 6-month period; applying continuous course of conduct exception to jury unanimity rule Proof that the victim suffered pain is not required.

Great Bodily Injury. For purposes of the term “great bodily injury” is defined The term means a significant or substantial physical injury.

Torture Felony-Murder. Murder in the course of torture is first degree murder under the felony-murder rule.

Punishment. The offense is punishable by imprisonment in the state prison for life. Intentional murder involving the infliction of torture is a special circumstance punishable by death or life imprisonment without parole.

Defenses. rejected the claim that the trial court must instruct on its own motion on unreasonable self-defense as a defense to torture. “It strains logic and common sense to view torture as self-defense.”

(6) Lesser Included Offenses. Battery is not a lesser included offense of torture. The statutory definition of torture does not require direct touching, physical force, or violence, but is committed if the defendant inflicts great bodily injury on the victim, e.g., by withholding food and water, causing starvation. Thus, a defendant may commit torture without necessarily committing battery.

No Preemption by Federal Treaty. The ratification by the United States of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, June 26, 1987, 146 U.N.T.S. 85, and the enactment of to implement the convention have not preempted. The federal legislation outlaws only torture under color of law outside the United States, and Congress could not have intended other torture, committed in the United States and punished by state laws, to go unpunished. Moreover, Congress has explicitly declared that may not be construed to preclude “the application of State or local laws on the same subject.”