Torture is the act of intentionally inflicting severe physical or mental suffering on someone for the purpose of forcing some kind of act from the victim (e.g. consent to an unwanted activity or provide undisclosed information) or to satisfy some need or wish of the torturer. The period of suffering can last a few minutes, or it can be stretched over hours or days.
An individual is guilty of torture, contrary to MCL 750.85, if the prosecutor can prove all of the following beyond a reasonable doubt (See Model Criminal Jury Instruction 17.36):
- First, that the person had “custody or physical control” over the victim. This means that the person used force or the threat of force either to confine the victim by interfering with his or her liberty or to restrict the victim’s freedom of movement. MCL 750.85(2)(b).
- Second, that the person exercised custody or physical control over the victim without his or her consent or without lawful authority to do so.
- Third, that at the time that the person had custody or physical control over the victim, he or she intentionally caused great bodily injury and/or severe mental pain or suffering to the victim.
- Fourth, that the defendant intended to cause the victim to suffer “cruel “or extreme physical pain, or mental pain and suffering. “Cruel” means brutal, inhuman, sadistic, or that which torments. MCL 750.85(2)(a). The prosecutor does not need to prove that the victim actually suffered any pain. MCL 750.85(3).
“Great bodily injury”, according to MCL 750.85(2)(c), means:
- (a) causing a serious impairment of a body function, which includes any of the following:
- (i) Loss of a limb, a foot, a hand, a finger, a thumb, an eye, an ear, or loss of the use of that part or those parts;
- (ii) Loss or substantial impairment of a bodily function;
- (iii) Serious visible disfigurement;
- (iv) A comatose state for more than three days;
- (v) Measureable brain or mental impairment;
- (vi) A skull or other serious bone fracture;
- (vii) Subdural bleeding or bruising;
- (viii) Loss of an organ;
- Or (b) internal injury, poisoning, serious burns or scalding, severe cuts, or multiple puncture wounds.
“Severe mental pain or suffering”, according to MCL 750.85(2)(d), means a substantial change in mental functioning that can be perceived by another person. It must have been caused by the defendant in one or more of the following ways:
- (a) intentionally causing great bodily injury to the victim or threatening to cause great bodily harm to him or her;
- (b) administering mind-altering substances or performing a procedure that would disrupt the victim’s senses or personality, or threatening to do so;
- (c) threatening [name complainant] with imminent death; or
- (d) threatening that another person will imminently be killed, subjected to great bodily injury, or given a mind-altering substance meant to disrupt the senses or personality.
The penalty for torture in Michigan is life in prison or any term of years. MCL 750.85(1). A conviction for torture does not preclude a conviction or sentence for a violation of any other law of this state arising from the same transaction. MCL 750.85(4).
In People v Schaw, 288 Mich App 231; 791 NW2d 743 (2010), the defendant was convicted of assault with intent to do great bodily harm less than murder, torture and unlawful imprisonment arising from an altercation with his wife. According to the evidence at trial, the defendant choked and restrained her, held a knife to her neck, attempted to drug her, and threatened to kill her. The defendant contended on appeal that there was insufficient evidence to sustain the conviction for torture because all of the elements were not proven beyond a reasonable doubt by the prosecutor. Specifically, because he did not cause great bodily injury, the defendant claimed that there was little evidence of “severe mental pain or suffering.” After all, the wife/victim had mental issues before the incident, specifically a manic-depressive and schizoaffective disorder, and was off her medication at the time of the attack. The wife testified at trial that she started to hallucinate after the incident, that is scared her, and that she had “flashbacks of body memories” that were brought on by the violence that night. The defendant contended all of the “injuries” were the result of pre-existing mental conditions. The Court of Appeals was not convinced:
- “While there was evidence that the jury could have credited to conclude that all of [the wife]’s mental issues resulted solely from her preexisting conditions, there was also evidence that the jury could have credited, and evidently did credit, to conclude that defendant’s attack caused some of her mental injuries. It is the jury’s role to evaluate and weigh the evidence. That [the wife] experienced hallucinations and had to resume her medication after the attack was evidence of a substantial altering of mental functioning and evidence of a visibly demonstrable mental injury. As noted in People v Alter, 255 Mich App 194, 204-205; 659 NW2d 667 (2003), when a defendant causes an injury, the special susceptibility of a victim to a particular injury does not constitute an independent cause of the injury such that a defendant is exonerated from criminal liability. Reversal is unwarranted.”
Torture is a specific-intent crime that requires the prosecutor to prove that the defendant intended to cause the victim great bodily harm or severe mental pain while under confinement. While it is impossible for a judge or jury to “read the mind” of the defendant to ascertain intent, it can be inferred from what the defendant said or did around the time that the torture was discovered.
In People v Wood, unpublished per curiam opinion of the Court of Appeals issued July 12, 2016 (Docket No. 326276), the defendant was caring for several children at the home she shared with her boyfriend. One of the children she cared for was her boyfriend’s son. At 2:30 p.m. that day, while the boyfriend was at work, paramedics responded to a near-drowning at the residence involving his son. The defendant reported to paramedics that the child was found facedown in the water of the bathtub. On closer inspection, the child has bruises on his chest, abdomen and arms and burns of his buttock, legs and feet. The doctor at the hospital determined that the injuries were not consistent with drowning and concluded that he had actually been held under hot water against his will. The defendant was charged with torture and several counts of child abuse. She testified at trial that the child was taking a bath while he was feeding her sister, then returned to find him limp and unresponsive, but denied burning or harming him in any way. The jury disagreed and found her guilty on all counts.
She appealed and argued there was insufficient evidence that she could have intended to cause those injuries. The Michigan Court of Appeals disagreed and found the following:
- “In regard to the torture conviction, a defendant is guilty if she, with the intent to cause cruel or extreme physical or mental pain and suffering, inflicts great bodily injury or severe mental pain or suffering upon another person within her custody or control. MCL 750.85(1). “Great bodily injury” includes “internal injury, poisoning, serious burns or scalding, severe cuts, or multiple puncture wounds.” MCL 750.85(2)(c)(ii). Here, [the child] suffered internal injuries to his liver, spleen, and pancreas as well as serious burns to his arms and legs. [The child]’s father testified that [the child] was acting normally the night before his hospitalization, and [a physician] testified that, due to the nature of the internal injuries, [the child]’s pain would have been apparent to anyone around him. These facts, coupled with defendant’s implausible claim of drowning being refuted by the medical evidence, see People v Unger, 282 Mich. App. 210, 227; 749 NW2d 272 (2008) (“[A] jury may infer consciousness of guilt from evidence of lying or deception.”), was sufficient evidence to allow the jury to conclude beyond a reasonable doubt that defendant was the person who inflicted these injuries on [the child]. Moreover, with evidence of second-degree burning, the jury clearly could have found that defendant indeed intended to cause [the child] extreme physical pain.”
The element of substantial impairment of a bodily function does not even require that the injury is permanent. In People v Turner, unpublished per curiam opinion of the Court of Appeals issued Aug 20, 2020 (Docket No. 348859), a torture conviction was upheld where the victim-child, when discovered after his ordeal, was unable to walk but it was not clear if this would last forever. The Michigan Court of Appeals found “[t]here was no evidence that [the victim]’s inability to walk was permanent, but the evidence was sufficient to enable the jury to find beyond a reasonable doubt that [the victim]’s temporary loss of the use of her legs constituted serious impairment of a body function.”
Torture is a very serious criminal offense, but there may be defenses that can be asserted:
- ACCIDENT – Torture requires the specific intent to inflict bodily harm or mental anguish, so if the evidence suggests that the injuries were inflicted accidental (e.g. child inadvertedly trapped in a dangerous location without the defendant’s knowledge), then the circumstances may be insufficient for conviction.
- CONSENT – If the injuries were inflicted during the course of a consensual activity (e.g. extremely kinky sexual act), then the evidence to suggest intent or desire to torture may be lacking.
- COERCION OR DURESS – If the defendant was forced to inflict torture by force at the direction of another, then there may be insufficient criminal liability or mens rea to be culpable of a crime.
Don’t wait to aggressively protect your rights in the face of the overwhelming power of the police and prosecutors. Juries are often shocked at the accusation of torture and judges will dole out long and harsh sentences in response. You need a skilled criminal defense lawyer in your corner that will hold the prosecutor to their burden of proof, file all necessary motions and argue persuasively to the court that the evidence does not amount to torture. The stakes are too high to settle for anything less than the best defense.
If you or a loved one is charged with any crime or need legal representation, do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC today.
