Penal Code § 206 PC – The Crime of “Torture” in California

California Penal Code § 206 PC defines the crime of torture as

1. inflicting great bodily injury on a victim in order to cause extreme pain or suffering,
2. when done for the purpose of revenge, persuasion, or any sadistic aim.

Torture is a felony offense punishable by life in prison with the possibility of parole.

The language of the code section states that:

206. 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.

Examples

• breaking a person’s leg, who has not paid a debt, to persuade him to pay.
• beating a person severely with a bat out of revenge for some act.
• a robber repeatedly burning a man with a lit cigarette until they open a safe.
• whipping a person without their consent in order to achieve sexual pleasure.

Defenses

In our experience representing people charged with violent crimes in California, the following legal defenses can be very effective in getting torture charges reduced or dismissed.

• you had no intent to cause cruel or extreme pain and suffering,
• you did not act with a criminal purpose,
• you were legally insane at the time of the act, and/or
• you acted in self-defense.

Our California criminal defense attorneys will explain the following in this article:

• 1. How does California law define the crime of torture?
• 2. Are there defenses to Penal Code 206 PC?
• 3. What is the punishment for torture in California?
• 4. Does this lead to deportation?
• 5. Can I get a conviction expunged?
• 6. Are there federal torture laws?
• 7. What is the Convention against Torture?
• 8. Are there related offenses?
• Additional Reading

1. How does California law define the crime of torture?

For prosecutors to convict you of torture under California Penal Code 206, they have to prove the following “elements” of the jury instructions:

1. you inflicted great bodily injury on someone else, and
2. when inflicting the injury, you intended to cause cruel or extreme pain and suffering for the purpose of revenge, extortion, persuasion, or for any sadistic purpose.¹

Let’s examine these two “elements of torture” in more detail below. (Note it does not matter whether the torture is committed through a single act or a course of conduct.²⁾

You Caused “Great Bodily Injury”

For you to be convicted of torture, the victim must have sustained a “great bodily injury” (GBI). This means a significant or substantial physical injury, such as

• broken bones,
• serious bruises,
• lacerations needing stitches,
• burns, or
• organ damage.

GBIs do not have to be permanent or cause a disability. It is also not required that a victim actually suffer pain for you to be guilty of torture.³

You Acted With Criminal Intent

The central element of torture is that you had criminal intent. Under PC 206, this means you deliberately set out to inflict cruel or extreme pain for the purpose of either:

1. revenge,
2. extortion,
3. persuasion, or
4. any sadistic purpose

Revenge and persuasion are self-explanatory. You act for the purpose of extortion if you intend to:

1. obtain a person’s property with their consent, and
2. obtains the person’s consent through the use of force or fear.⁴

Finally, you act with a sadistic purpose if you intend to:

1. inflict pain on someone else, and
2. intend this in order to experience pleasure for yourself.⁵

Note that unlike murder (PC 187), torture does not require that you act with premeditation.⁶

2. Are there defenses to Penal Code 206 PC?

Here at Shouse Law Group, we have presented literally thousands of people charged with violent crimes such as torture. In our experience, the following four defenses are very persuasive with judges, juries, and prosecutors.

1. you had no intent to cause cruel or extreme pain and suffering,
2. you did not act with a criminal purpose,
3. you were legally insane at the time of the act, and/or
4. you acted in self-defense.

You Had No Intent to Cause Cruel or Extreme Pain and Suffering

Even if you did cause someone cruel and extreme pain and suffering, you are not guilty of torture if you had no intent to cause the pain. For example, perhaps the whole incident was an innocent accident.

“Criminal intent” is actually very difficult for prosecutors to prove because there is no way to get inside of your head. As long as there is reasonable doubt as to your guilt, torture charges should not stand.

You Did Not Act With a Criminal Purpose

Even if you intended to cause someone pain – and succeeded – you are not guilty of torture unless your motivation was:

• revenge,
• extortion,
• persuasion, or
• any other sadistic purpose.

Similar to intent, it is difficult for prosecutors to prove motive since there is no way to read your mind. We often rely on such evidence as recorded communications (texts, voicemails, emails, etc.) to illustrate that you had no reason to act out of revenge, extortion, persuasion, or sadism.

You Were Legally Insane at the Time of the Act

You can always assert a “not guilty by reason of insanity defense” to torture. The law says you are insane if:

1. you did not understand the nature of the act committed, and/or
2. you could not distinguish between right and wrong.⁷

We can call upon expert medical witnesses to testify on your behalf as to your mental state. Note, though, that if we are successful, the judge would likely commit you to a state facility for treatment.

You Acted in Self-defense

One of the most common defenses we use to fight violent crime charges is to argue self-defense or defense of others. This defense should work if you:

• believed that you or someone else was in “imminent danger,”
• believed that force was necessary to stop the danger, and
• used an appropriate level of force in defense.⁸

In some cases, the “appropriate level of force” necessary to fend off an attack can be very extreme and mistaken as torture by police.

Helpful evidence in these cases includes surveillance video of the incident and eyewitness accounts of what happened.

3. What is the punishment for torture in California?

Torture under California Penal Code section 206 is a felony punishable by a life sentence in state prison with the possibility of parole and a $10,000 fine. You typically are up for parole after doing seven years of prison.

The penalties are the same whether you were the person committing the torture or were aiding and abetting the torturer.

As a serious and violent felony, torture qualifies as a “strike” offense under California’s Three Strikes Law, which can enhance the penalties for future convictions.

When the Victim Dies

Note that if the torture victim dies, then prosecutors would bring murder charges:

• If you intended the torture victim to die, prosecutors would bring special circumstances murder charges under PC 190.2(a)(18).
• If you did not intend for the torture victim to die, prosecutors would bring felony murder charges under PC 189.

The penalty for murder is life in prison without parole or the death penalty.⁹

4. Does this lead to deportation?

Since torture is a “crime involving moral turpitude” and aggravated felony, non-citizens convicted of it will be deported once they finish their prison sentence.

5. Can I get a conviction expunged?

No, you cannot get a torture conviction expungement. As a general rule, expungements are not available for convictions resulting in prison terms.

6. Are there federal torture laws?

Yes. 18 U.S.C. 2340 is the federal statute on torture. It is known as the “Torture Act.”

Under this law, it is a crime if:

1. a U.S. national or a non-U.S. national who is present in the U.S.,
2. commits an act of torture, and
3. does so outside the U.S.¹⁰

Note that acts of torture committed within the U.S. are charged under state laws.

If convicted under this law, you can face up to 20 years in prison. If you killed someone in the act of torture, then you can be punished with:

• death, or
• life in prison.¹¹

7. What is the Convention against Torture?

The “Convention against Torture” is also known as the United Nations Convention against Torture (UNCAT).

UNCAT is an international agreement among countries that seeks to prevent:

• torture,
• cruel and inhumane acts of punishment against humans, and
• the degrading treatment of humans.

The Convention mandates that countries have laws in effect that prevent torture.

8. Are there related offenses?

• Aggravated battery – Penal Code 243d PC
• Battery – Penal Code 242 PC
• Corporal injury on an intimate partner – Penal Code 273.5 PC
• Extortion – Penal Code 518 PC
• Mayhem – Penal Code 203 PC

8. Additional Reading

For more in-depth information, refer to these scholarly articles:

• Why is Torture Different and How Different Is It – Cardozo Law Review.
• Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment Really ‘Absolute’ in International Human Rights Law? – Human Rights Law Review.
• Torture, Necessity, and Supreme Emergency: Law and Morality at the End of Law – Valparaiso University Law Review.
• Saying What the Law Is: Judicial Review of Criminal Aliens’ Claims under the Convention against Torture – N.Y.U. Journal of International Law and Policy.
• What’s Wrong with Torture? – Philosophy and Public Affairs.

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