Torture is prohibited by statutes worldwide, yet the legal definition of torture is almost invariably based on an inherently subjective judgment involving pain severity. In four experiments, we demonstrate that judgments of whether specific interrogation tactics constitute torture are subject to an empathy gap: People who are experiencing even a mild version of the specific pain produced by an interrogation tactic are more likely to classify that tactic as torture or as unethical than are those who are not experiencing pain. This discrepancy could result from an overestimation of the pain of torture by people in pain, an underestimation of the pain of torture by those not in pain, or both. The fourth experiment shows that the discrepancy results from an underestimation of pain by people who are not experiencing it. Given that legal standards guiding torture are typically established by people who are not in pain, this research suggests that practices that do constitute torture are likely to not be classified as such.
Nordgren, L. F., McDonnell, M. H. M., & Loewenstein, G. (2011). What constitutes torture? Psychological impediments to an objective evaluation of enhanced interrogation tactics. Psychological Science, 22(5), 689-694.