I disagree with Justice Scotland. Yes, the facts of this case are deeply, deeply disturbing. But, respectfully, there was not "overwhelming" evidence of torture.
Nonetheless, this is a good example of the simple reality that certain facts inevitably have an effect on human beings, including judges. It's a horrible rape. There's a three year old child in the other room. When the defendant pushes his way into the bathroom and enters with a knife, after a brief struggle, the victim says "Fine, take me, just don't kill me." Defendant then assaults the victim both sexually and violently, and, after another brief struggle, starts to cut the victim with broken glass from a picture frame. And after defendant starts cutting the victim's neck and wrists, the victim -- convinced that defendant is trying to kill her -- tells the defendant: "Jesus loves you. If you kill me, he's going to forgive you if you ask him." A statement to which the defendant responds by becoming even more violent towards the defendant.
Those kind of facts get you sentenced to life in prison. Twice. And lead a Court of Appeal to affirm your conviction for torture.
There's a reason Justice Scotland includes in the opinion -- and is clearly affected by -- the victim's statements. Even though they're, legally, entirely irrelevant to whether or not the violence inflicted on the defendant is sufficiently large to establish torture.
Facts matter. Emotional reactions matter. And they did here.
