Penal Code 260: Torture Under California Law

Torture is prosecuted in California under penal code 206.

Below I explain California’s laws on torture including punishment and defenses.

What Is Torture Under Penal Code Section 206?

Under California Penal Code section 206, the crime of “torture” is defined as the intentional infliction of extreme pain and suffering upon another person¹.

Does This Crime Require Proof That The Victim Suffered Pain?

Although the crime usually involves a situation where the victim suffers extreme pain, the crime does not require any proof that the victim suffered pain to result in a conviction.

What Is Required For A Conviction For Torture?

To be convicted of torture, the defendant had to have acted

• With intent to cause cruel or extreme pain and suffering
• For the purpose of revenge, extortion, persuasion, or for any sadistic purpose.

The punishment for torture is imprisonment in the state prison for a term of life.

Example Of A Situation Where Torture Would Be Prosecuted

During the course of a home invasion burglary, someone is tied up and burned with cigarettes to force them to provide the combination to a safe.

How Does The Prosecutor Prove a Charge of Torture?

To prove that the defendant is guilty of torture, the prosecution must prove the following facts or elements:²

• The defendant inflicted great bodily injury on someone else³; AND
• When inflicting the injury, the defendant intended⁴ to cause cruel or extreme pain⁵ and suffering for the purpose of revenge, extortion⁶, persuasion, or for any sadistic purpose⁷.

Some Examples of “Great Bodily Injury” Include The Following:

• Broken and smashed teeth
• Split lip
• Facial cut
• Broken bones
• Brain damage

What Are Examples Of “Sadistic Purpose?”

• Tasing a suspect with a taser repeatedly even after he/she has been secured by the police;
• Punching a victim with a gun or knife wound that you have inflicted.

Legal Defenses to Torture Charges

There are various defenses that can be asserted on your behalf to fight a charge of “torture.”

Here are the most common ones:

Lack of intent

If you did not have the intent to cause cruel or extreme pain to the victim, you have a valid defense for this offense.

Example:

Barry broke Rebecca’s arm while raping her.  Although his intent was to inflict great bodily injury by committing the rape, he did not intend to cause Rebecca’s cruel or extreme pain when he accidentally broke her arm.

He may be guilty of “rape” and possibly “mayhem” if Rebecca sustains permanent or temporary yet prolonged disability.  He may also be guilty of California Penal Code section 240 “assault” (Assault – California Penal Code 240), or Penal Code 243(d) “aggravated battery” (Aggravated Battery – Penal Code 243(d).

You Did Not Commit The Crime For The Purpose Stated In The Crime Of “Torture”

If you did not commit the crime for any of the following purposes: revenge, extortion, persuasion, or for any sadistic purpose, you cannot be charged with the offense.

Example: 

As in the example above, Barry did not break Rebecca’s arm out of revenge, extortion, or persuasion, or for any sadistic purpose.  It was an accident.  Therefore, he cannot be convicted of torture.  As stated above, he can still be convicted of other offenses such as “assault,” “aggravated battery,” and possibly “mayhem.”

Self-Defense/Defense Of Others

If the only reason you tortured someone is that you were reasonable acting in self-defense or to defend another from great bodily injury, you have a valid defense for a torture charge. 

Example Of Self Defense:

After being tortured and raped repeatedly, Jennifer was able to break free from Jeff.

To prevent him from being able to run after her, she was able to stab him repeatedly in both his thighs with a screwdriver.

Because Jennifer’s motivation was to act in self-defense rather than to inflict extreme pain and suffering onto Jeff, she has a defense to this offense.

What Are The Penalties, Punishment And Sentencing Guidelines For Torture?

Torture is a felony for which you can face a fine of up to $10,000 and imprisonment in the state prison for a term of life.

What Is The Penalty If The Torture Resulted In Death?

When torture results in death and there is evidence that shows that you intended to torture the victim, it does not matter whether or not you intended to kill the victim, you can be convicted of 1^st Degree Murder.

• Punishable by death,
• Imprisonment in the state prison for life without the possibility of parole, or
• Imprisonment in the state prison for a term of 25 years to life.

Related Offenses or Additional Penalties

Assault

Under Penal Code 240 California’s “assault” law is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.  Unlike “torture,” assault does not require the intent to inflict serious bodily injury with intent to cause cruel or extreme pain.

Aggravated Battery

California Penal Code 243(d) “aggravated battery” Aggravated Battery – Penal Code 243(d) is when a battery is committed on a person and significant bodily injury is committed against any of the following certain “protected people:” peace officers, firefighters, doctors, and nurses.

Mayhem

The injury to the victim that results from the crime of torture does not need to be as severe as in the related crime of mayhem California Penal Code sections 203 or aggravated mayhem in california penal code 205.  Unlike the related offense of “mayhem,” the bodily injury to a torture victim does not have to result in a permanent or even prolonged disability, and does not have to involve disfigurement or disability.

Murder resulting from Torture

Unlike the crime of murder by torture Cal Penal Code 187, 189, defined in California Penal Code sections 187 and 189, the crime of torture does not require that the intent to cause pain be premeditated or that any cruel or extreme pain be prolonged⁸ Torture as defined in section 206 of the Penal Code focuses on the mental state of the perpetrator and not the actual pain inflicted.⁹

1. California Penal Code 206 “Torture Defined” Every person who, with the intent to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose, inflicts great bodily injury as defined in Section 12022.7 upon the person of another, is guilty of torture. The crime of torture does not require any proof that the victim suffered pain. [↩]
2. Elements. Pen. Code, § 206. [↩]
3. “Great bodily injury” means significant or substantial physical injury.  It is an injury that is greater than minor or moderate harm.  Great Bodily Injury Defined. Pen. Code, § 12022.7(f); see, e.g., People v. Hale (1999) 75 Cal.App.4th 94, 108 [88 Cal.Rptr.2d 904]. [↩]
4. Intent. People v. Pre (2004) 117 Cal.App.4th 413, 419–420 [11 Cal.Rptr.3d 739]; People v. Hale (1999) 75 Cal.App.4th 94, 106–107 [88 Cal.Rptr.2d 904]; People v. Jung (1999) 71 Cal.App.4th 1036, 1042–1043 [84 Cal.Rptr.2d 5]; see People v. Aguilar (1997) 58 Cal.App.4th 1196, 1204–1206 [68 Cal.Rptr.2d 619] [neither premeditation nor intent to inflict prolonged pain are elements of torture]. [↩]
5. It is not required that a victim actually suffer pain. CALCRIM No. 810; Cruel Pain Equivalent to Extreme or Severe Pain.  People v. Aguilar (1997) 58 Cal.App.4th 1196, 1202 [68 Cal.Rptr.2d 619]. [↩]
6. Someone acts for the purpose of extortion if he or she intends to (1) obtain a person’s property with the person’s consent and (2) obtain the person’s consent through the use of force or fear.  Extortion Defined. Pen. Code, § 518.  Additionally, if the issue of extortion is involved in the context of an act of a public official, the following definition of extortion applies: Someone acts for the purpose of extortion if he or she (1) intends to get a public official to do an official act and (2) uses force or fear to make the official do the act.  An “official act” is an act that an officer does in his or her official capacity using the authority of his or her public office.  People v. Norris (1985) 40 Cal.3d 51, 55–56 [219 Cal.Rptr. 7, 706 P.2d 1141] [defining “official act”]. [↩]
7. Someone acts with a sadistic purpose if he or she intends to inflict pain on someone else in order to experience pleasure himself or herself.  Sadistic Purpose Defined.  People v. Raley (1992) 2 Cal.4th 870, 899–901 [8 Cal.Rptr.2d 678, 830 P.2d 712]; People v. Aguilar (1997) 58 Cal.App.4th 1196, 1202–1204 [68 Cal.Rptr.2d 619]; see People v. Healy (1993) 14 Cal.App.4th [↩]
8. People v. Pre (2004) 117 Cal.App.4th 413, 419-420 [11 Cal.Rptr.3d 739]; People v. Aguilar (1997) 58 Cal.App.4th 1196, 1204- 1205 [68 Cal.Rptr.2d 619]; People v. Vital (1996) 45 Cal.App.4th 441, 444 [52 Cal.Rptr.2d 676]. [↩]
9. People v. Hale (1999) 75 Cal.App.4th 94, 108 [88 Cal.Rptr.2d 904]. [↩]