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58 Wm. & Mary L. Rev. 183 (2016-2017)
Criminalizing Private Torture

handle is hein.journals/wmlr58 and id is 193 raw text is: 









CRIMINALIZING PRIVATE TORTURE


                          TANIA TETLOW*


                             ABSTRACT

   This Article proposes a state crime against torture by private
actors as a far better way to capture the harm of serious domestic
violence. Current criminal law misses the cumulative terror of
domestic violence by fracturing it into individualized, misdemeanor
batteries. Instead, a torture statute would punish a pattern crime
the batterer's use of repeated violence and threats for the purpose of
controlling his victim. And, for the first time, a torture statute would
ban nonviolent techniques committed with the intent to cause severe
pain and suffering, including psychological torture, sexual degrada-
tion, and sleep deprivation.
   Because serious domestic violence routinely involves the use of
torture techniques, other scholars have proposed stretching the state
action requirement of international law against torture to apply it to
domestic violence. This Article proposes a simpler solution, urging
states to pass statutes banning torture by private actors. Indeed,
California and Michigan have already done so, seemingly without
controversy and without any real scholarly comment. Both states
have used their general torture statutes to prosecute serious domestic
violence. This proposal would better tailor a torture statute to


    * Felder-Fayard Professor of Law, Tulane Law School; Chief of Staff and Vice President,
Tulane University; J.D., Harvard Law School. The author would like to thank Jancy Hoeffel,
Becki T. Kondkar, Katherine Mario Mattes, Pam Metzger, and Kenneth Allen Polite Jr. for
their helpful comments, and Joshua Bowman, Melissa Secor, Marcus Foster, and Meliosa
Miller for their excellent research assistance. The author would like to dedicate this Article
to Sara LaMont, a Tulane law student shot by her boyfriend in an apparent murder/suicide
last spring. To read tributeos to her remarkable life published by her fellow law review editors,
see In Memoriam: Sara Lament, 89 TUL. L. REV. 997, 997-99 (2015).

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