Defining Torture Down

Original Article

Now they are defining “torture” down. “They” in this instance are the international community in general and the United Nations special rapporteur on torture, the Argentine human rights activist Juan E. Méndez, in particular.

Méndez—whose full title is “special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment”—just released a report to the General Assembly on torture “in health care settings.” It is a startling read. He brands with that extreme term not only medical actions and omissions that clearly are not torture as most people understand it, but also national policies disfavored by the international ruling class. Thus, “The Committee against Torture has repeatedly expressed concerns about restrictions on access to abortion and about absolute abortion bans as violating the prohibition on torture and ill treatment.” Unstated (but implied) is that pro-life countries like Ireland are committing crimes against humanity.

Torture, however, has a specific definition. According to the U.N.’s Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, it means

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he .  .  . has committed or is suspected of having committed, or intimidating or coercing him .  .  . or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

Two clear examples of torture are “disappearing” a political prisoner in indefinite solitary confinement and kneecapping a prisoner during police interrogation to obtain a confession. But Méndez reports that the definition of torture and ill treatment is subject to “evolving interpretation” and “ongoing reassessment in light of the present-day conditions and the changing values of democratic societies.” Whenever international bureaucrats want to “reassess” venerable definitions to reflect “changing values,” hold on to your national autonomy.

Not by accident, Méndez places special emphasis on “reproductive rights violations” as torture—and in so doing conflates mere policy differences and clear abuse:

International and regional human rights bodies have begun to recognize that abuse and mistreatment of women seeking reproductive health services can cause tremendous and lasting physical and emotional suffering, inflicted on the basis of gender. Examples of such violations include abusive treatment and humiliation in institutional settings; involuntary sterilization; denial of legally available health services such as abortion and post-abortion care; .  .  .  female genital mutilation; violation of medical secrecy and confidentiality in health care settings, such as denunciations of women by medical personnel when evidence of illegal abortion is found [italics added].

Equating involuntary sterilization and female genital mutilation—unquestionably cruel and abusive practices and arguably instances of torture—with the denial of an abortion or a violation of confidentiality obviously diminishes the truly abusive nature of the former. Méndez even goes so far as to claim that denying prenatal testing to reveal “a potential fetal abnormality” could be torture because “access to information about reproductive health is imperative to a woman’s ability to exercise reproductive autonomy, and the rights to health and physical integrity.” One could certainly argue that impeding such testing is wrong or misguided—but torture?

Méndez further distorts the meaning of torture in dealing with transgender issues. For example, he declares that laws requiring sex reassignment surgery before a person can legally register a sex change amount to coerced “sterilization” and may thus be a “severe and irreversible intrusion into a person’s physical integrity.”

Prostitutes—or rather, “sex workers”—are also supposedly tortured when required to undergo “mandatory HIV testing and exposure of their HIV status.” Other people infected with HIV are also tortured by “compulsory HIV testing,” which Méndez claims “may constitute degrading treatment if it is done on a discriminatory basis.” Really? After New York passed a law requiring testing of all newborns and disclosure of status to their mothers—bitterly resisted by some AIDS activists and feminists—thousands of babies’ and women’s lives were saved.

And Méndez wants to protect drug addicts from torture. “In some cases,” he fumes, “the laws specifically single out the status of drug user as a stand-alone basis for depriving someone of custody or parental rights.” Imagine that!

To be sure, many of the actions and omissions that Méndez identifies in his report are clearly negligent, abusive, or inhumane. Denying treatment to AIDS patients is obviously cruel and unacceptable. So are involuntary sterilization, wrongful sentencing to psychiatric hospitals, physical and sexual abuse in medical facilities, and medical discrimination against people with disabilities. State policies that impede the adequate provision of pain control beg for a cure. But something can be wrong, indeed highly abusive, and still not be usefully equated with torture.

The broad goal of the U.N. report is to impose universally its preferred ethical worldview. For example, the special rapporteur “calls upon all States” in which abortion is legal to “ensure that services are effectively available.” He also recommends adopting “a human rights-based approach to drug control,” closing all “compulsory drug detention and ‘rehabilitation’ centers,” to be replaced by “rights-based health and social services in the community.” But such policy questions are best addressed by sovereign states, not through an international effort to eliminate torture.

The political left—which includes the U.N. bureaucracy—loves to redefine words so as to stigmatize controversial policies with which it disagrees. Now, Méndez (who moved to the United States in 1977, after being expelled from Argentina for courageous opposition to the dictatorship) has asked for an official invitation from the U.S. government to assess how much torture we permit in health care settings. Just imagine the New York Times headlines reporting on his visits to, say, states that impose waiting periods before abortions: “Torture in 26 U.S. States!” NARAL will be thrilled.

Wesley J. Smith

Chair and Senior Fellow, Center on Human Exceptionalism
Wesley J. Smith is Chair and Senior Fellow at the Discovery Institute’s Center on Human Exceptionalism. Wesley is a contributor to National Review and is the author of 14 books, in recent years focusing on human dignity, liberty, and equality. Wesley has been recognized as one of America’s premier public intellectuals on bioethics by National Journal and has been honored by the Human Life Foundation as a “Great Defender of Life” for his work against suicide and euthanasia. Wesley’s most recent book is Culture of Death: The Age of “Do Harm” Medicine, a warning about the dangers to patients of the modern bioethics movement.