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© 1998-2001 Dru
Pagliassotti
All rights reserved. Trial
by Torture
 Most GMs who develop laws for their campaigns
model their justice system after modern bureaucratic forms, with a sense
that crime is an offense against society and individual, and often with
a system for trial by one's peers that includes a presentation of evidence
and logical forms of argument. In a game system that takes place in modern
Earth, that's fine ... but in fantasy campaigns or campaigns that involve
nonhuman races or other worlds, why assume that all law has evolved the
same way? This essay, the fourth in a series, addresses the use of torture
as an alternative justice system.
The goal of torture is to quickly elicit the
truth from a person through physical harm. Although it is similar to the
trial by ordeal, trial by torture does not rely on a divine being or power
to ensure that justice prevails ... nor does it rely on the vagaries of
human memory and evidence. Torture relies only on the suspect's own knowledge
and desire to avoid pain.
A culture that uses torture in its legal system
is probably one that does not place a high value on individual freedom
and autonomy, because every person in that culture is subject to physical
control by the authorities. A culture using torture is probably one that
values the whole more than the parts; that esteems social order over individual
freedom. This implies, then, that cultures
using torture are more likely to be hierarchical and even bureaucratic
than tribal—tribal cultures would be more likely to use individual-respecting
legal systems such as trial by oath, ordeal or combat. (However, tribes
might torture those to whom they didn't accord equal status, such as slaves
or outsiders.)
In addition, a culture that uses torture in
its legal system may be one that does not place any faith in deities or
so-called rational argumentation. Such a culture is probably not advanced
enough to have developed technological means of detecting the truth, such
as lie detectors, and probably does not have telepathy or other psychic
means of detecting the truth.
Weighing an Accusation: A
culture that uses trial by torture must first determine whom to torture.
Very seldom would just anybody accused of a crime be dragged off and tortured;
instead, the accusation would first be weighed by the authorities and
either dismissed as frivolous or acknowledged as possible. The accuser's
and the accused's respective social statuses would probably affect the
authorities' decision; historically, the poor, the mad, and the otherwise
socially marginalized have been more prone to being accused and tortured
than the rich, the privileged, and the socially respected. Ultimately,
torture is an exercise of power, and those who are in power are much less
likely to be tortured than those who are not in power.
Some cultures did not permit slaves to be
tortured to testify against their masters, or spouses against each other,
or children against parents. Since torture is more likely to exist in
a culture that values the group over the individual, this isn't surprising—such
laws protect the unity of two very fundamental social groups, the family
and household.
Although usually the accused is the one who is tortured, some societies
might torture the accuser, too, just to make certain the accuser has the
courage of his or her convictions. In addition, witnesses might be tortured
to verify the truth of their claims, especially if their evidence seemed
vague or contradictory, leading to suspicions of perjury.
Types of Torture: There are
about as many ways to inflict pain as the human (or nonhuman) mind can
imagine. Classic forms of torture include breaking limbs, burning flesh,
bruising or piercing flesh,and stretching or compressing bone and muscle
past normal limits. More unusual forms might include partial suffocation
or forcing the person to drink liquids until s/he vomits. Mental torture
is more subtle, and might range from driving a person into a nervous breakdown
to inflicting actual psychic pain on a person through some sort of psi
powers. A number of devices, from the crudest rock to the most sophisticated
nanoware, might be manufactured to assist the torturer in his or her work.
Torture can be instantaneous—such as
branding flesh—or applied over a long time—such as forcing
a person to live in a four-by-four-foot cage for weeks, months, or years.
Most societies using torture as a legal system will prefer quick, efficient
forms of torture.
In all cases, the purpose of torture is foiled
if the victim dies. When torture is part of a legal system, it is a means
to the end, not the end itself.
Reaching a Verdict: Torture
is used to determine guilt or innocence; typically, the torturer will
ask the victim to confess to the crime, applying increasing amounts of
pain until the victim breaks down. In a rational system of torture, the
amount of pain that could be applied would be scaled to the gravity of
the crime. In addition, the type of torture that could be applied would
vary by the accused's sex, age, and health or physical state (for example,
it's unlikely that many cultures would torture pregnant women, due to
the probability of miscarriage). One might
imagine a grim but scrupulous culture with an extensive set of laws dictating
how, when, and for how long various types of torture can be applied to
a victim, and legal scholars debating the pros and cons of such laws.
Under the "ideal" torture-based
legal system, if the victim still insisted that he or she were innocent
after the torture limit were met, then he or she would be declared innocent
and released. However, if the victim broke under the pain and confessed
the crime, then he or she would be subject to the appropriate punishment.
Of course, some victims are likely to falsely confess to a crime simply
to stop the pain, and some hypocritical legal systems might reach a decision
about the accused's guilt or innocence regardless of what the victims
said under torture.
Lex Talionis: Although it
is not precisely a form of torture, it is worth mentioning "eye for
an eye" justice here. Under this law, a criminal is subject to the
same crime he or she inflicted on the victim; thus, a man who gouged out
another man's eye would have his own eye gouged out; a rapist would be
raped; a murderer would be executed. This system could be combined with
any of the forms of law that have been discussed in this series; it falls
here under torture because inflicting pain on the guilty party is a sort
of torture.
The main drawback to the lex talionis is that
it is only appropriate for straightforward crimes; in some cases, like
fraud, the law isn't clearly applicable, and the justice system would
have to resort to some other means of punishment.
The roleplaying possibilities of a culture
that uses a torture-based legal system are straightforward; the characters
might face torture themselves or need to rescue somebody else from torture.
Characters who are apalled by torture might try to reform or overthrow
the legal system. A character who comes from a culture that tortures might
clash with characters who do not. And certainly, characters who are visiting
a culture where torture is part of the legal system are not likely to
commit many crimes while they're there!
originally written January 10, 1999
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