Tortured Distinctions

by Sherry F. Colb

In my Verdict column this week, I take up the dilemma of the "Agunah," a traditionally observant Jewish woman whose ex-husband refuses to grant her a religious ritual divorce, known as a "get."  A woman in this situation is "chained" to her prior marriage, unable -- within the Orthodox or Conservative Jewish communities -- to enter into another marriage without violating the religious proscription against adultery.  In the column, I discuss the gender inequity at the heart of this dilemma and the consequences for the Agunah as well as for her offspring.

In this post, I want to explore an issue that arises out of the one of the "Agunah" stories in the news to which I refer in the column.  In this story, a group of men offered their services to agunot (plural of agunah) to force recalcitrant ex-husbands to grant their ex-wives a get through kidnapping and torture techniques, including the use of what are frequently called "cattle prods" but which I would instead call "torture devices that use electric shocks against sentient animals to force them to go to their unnecessary deaths."  In the case of the get-seeker, torture would be inflicted as a means of motivating ex-husbands to do what they should have done on their own:  release an ex-wife from being religiously bound to a man to whom she no longer wishes to be in a relationship.

Is torture in this situation wrong?  I (and I suspect most people) would take the position that it is.  Yet I also understand why a woman might be desperate enough to resort to it.  If a woman lives within an Orthodox community and believes herself to be prohibited from dating or marrying a new man without a get, then her ex-husband's inexcusable recalcitrance keeps her from forming new romantic connections, from marrying again, and from having children without they and their own descendents having to bear the stigma of mamzerim (loosely translated as bastards) who are similarly barred from marrying within this community. Most people within the relevant communities themselves believe that it is outrageous (and a form of domestic abuse) for a man to refuse to grant his ex-wife a get, but traditional Jewish law appears to provide no substitute for the man choosing to do the right thing, if shaming and efforts at moral persuasion and other non-violent methods do not work.

When a man's behavior is acknowledged by almost everyone to be inexcusable and abusive, which is the case for the refusal to grant a get, then it is easy to understand (even if we still reject) the drive to use torture to compel the man to do the right thing.  This is probably the drive that has led some police officers who are certain that they have a guilty suspect in custody to use physical force and threats to produce the confession that they regard as rightfully theirs.

When police torture a suspect, of course, this is different from torture-for-a-get in a variety of respects, including the fact that (1) our Constitution and the ethics that motivated its creation and ratification grant a person the right to refuse to confess, notwithstanding her guilt, and (2) police who coerce a confession ordinarily cannot really "know" that the suspect is guilty, and thus torture can result -- and has resulted -- in false confessions by tormented suspects.  By contrast, (1) Jewish law does not recognize a "right" to withhold a get from one's ex-wife (though it does give a man this power over a woman to whom he was married), and (2) there are virtually no situations in which a tormented man might grant a woman the get that she seeks when she is not truly entitled to the get.

Yet despite the fact that the man has no right to withhold a get and the corresponding fact that virtually no man who grants the get under torture will have given up something to which he has any rightful claim, most of us would consider torture in these circumstances to be immoral.  Indeed, the very fact that people are driven to commit acts of torture to obtain a get represents a good argument for revisiting the get requirement.  One possibility that occurs to me is that perhaps whenever people have a Jewish wedding ceremony, a new custom emerge that requires the man to sign a get and deliver it to the rabbi who marries the couple (or to a community safety box) for safekeeping.  Then, if and when the two people divorce, the trustee of the get can deliver it on the ex-husband's behalf.

To the extent that we believe torture is wrong in these circumstances, though, why is that, if it is intended  to compel what is truly obligatory behavior?

One general answer that I discuss in more detail in an article entitled Why Is Torture "Different" and How "Different" Is It?, published in the Cardozo Law Review in 2009, is that torture is an extreme form of violence that should be permissible, if at all, in only a very narrow category of situations.  One such legitimate category, I argued, is self-defense, in which torture (though not usually thought of in this way) is already lawful.  Consider the following scenario.

A man, Doe, is holding a pillow over a child's face, suffocating the child.  The man's much weaker roommate, Koe, notices what is going on and screams at Doe to stop what he is doing.  Doe refuses to stop, even when Koe ineffectually tries to pull Doe's hands off the pillow.  Desperate for a means of saving the child, Koe grabs a pair of scissors and cuts into Doe's arm.  Doe shrieks in pain but continues holding down the pillow.  Koe then takes the scissors and  jams then as hard as he can into Doe's back.  Now in excruciating pain, Doe lets go of the pillow, which Koe quickly removes from the child's face, thereby saving the boy's life.

In the above scenario, Koe uses pain to disable Doe from carrying out his act of violence; he uses the infliction of torments -- or torture -- as a means of stopping Doe from carrying out a murder.  Absent viable alternatives, I think most of us would regard Koe's actions as justified in defense of others.  Instead of killing Doe to save the boy's life -- which Koe could legitimately have done, if necessary -- Koe tortured Doe to do the same thing.

How is the Doe & Koe scenario different from the sort of torture about which our debates ordinarily center -- torture of terrorist suspects, for example, in an effort to obtain actionable intelligence?  One important way in which the two scenarios differ is that in Koe's case, Koe is using torture to stop an action in progress, while in the case of the terrorist suspect, the interrogator is using torture to motivate an inactive person to do something.  This difference turns out to be important for several reasons that I explore in greater detail in my Cardozo article.  One of the main distinctions is that when we torture an inactive person to motivate him to act, we could well be torturing the wrong person -- that is, we torture a terrorist suspect who could turn out to be innocent and thus ignorant of whatever it is that interrogators hope to learn from him.

If the torturer is wrong about what the suspect knows, then the one who is being tortured actually has no effective way to make the torture stop, by contrast to Doe, who can make his own torture stop simply by letting go of the pillow he is using to suffocate the child.  This is why a subject of instrumental torture may endure much more pain than the torturer originally intended to inflict -- it takes quite a bit of torture (perhaps enough to kill the subject) to satisfy an interrogator that the subject truly cannot meet the torturer's demands. Escalation is almost inevitable when the torturer has erred in selecting the subject, thus leading to the greatest suffering for those who are innocent and unable to do what is asked of them.

How does the torturer who attempts to obtain a get for an agunah fare in this analysis?  Such a torturer is plainly attempting to motivate someone (a recalcitrant ex-husband) to do something he has been refusing to do rather than to stop doing something he has already done:  the action in question is granting his ex-wife a get. This fact would seem to place the "get" torturer in the category of interrogators who torture terrorism suspects (and criminal suspects) for information or evidence, the sort of torturer about whom we should be most wary and to which absolutist opposition arises.

On the other hand, in the case of the recalcitrant ex-husband, unlike the case of a terrorist suspect, there is much less of a worry that the torturer may end up inflicting torments upon the "wrong" person.  Say the "get" torturer, Knuckles, enters the wrong home and tells the man he finds there, Earnest, to sign a get for Jane Roe or be tortured. Earnest says "I am not married to Jane Roe."  If Knuckles does not believe Earnest , then Knuckles might say "just sign it" or I will start hurting you.  At this point, Earnest can sign the document, and Knuckles will go away with the document.  The would-be torture victim, in other words, can complete the task requested of him even if he is the wrong person.  For a terrorism suspect, this is not true.

Whether this distinction is sufficient to move the "get" torturer closer to the category of legitimate self-defense/defense-of-others torture is unclear.  However, another factor that suggests that torture is wrong when used to obtain a get is the possible disproportion between the harm to be prevented -- the inability of the woman to marry -- versus the excruciating pain to be inflicted on the recalcitrant ex-husband.  Unlike an actual kidnapping or attempted murder, the ex-husband is arguably doing something substantially less threatening and harmful and is accordingly less deserving of harsh methods of intervention.

From the point of view of an agunah, however, placing her in a kind of excommunicated state -- where no man in the community would be willing to marry her and where her children with any man who is willing may suffer their own stigma of excommunication -- is a very serious matter indeed.  And as I concluded in my column, I will conclude here:  there has to be a way to solve this problem other than torture or relying on the good faith of men who are, by definition, acting in bad faith.  Giving people the power to do harm without remedy virtually invites self-help.