Trial by Torture

Some medieval guys in a cell about to be tortured

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 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 was convicted of gouging out another man’s eye would have his own eye gouged out; a convicted rapist would be raped; a convicted 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 appalled 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

Image Source: Bambergische Peinliche Halsgerichtsordnung Constitutio Criminalis Bambergensis, 1507

I read, write, roleplay, travel, teach, and occasionally do research. I am a lizard, a warrior, a minimalist, and a scholar.
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