Torture, Severity, and the Gendered Structure of Pain and Suffering

Under international law, torture requires ‘severe’ physical or mental pain or suffering, yet courts and human rights bodies rarely provide developed analyses of how the severity prong is met. This article examines how that analytical gap affects the adjudication of sexual and gender-based violence. Surveying jurisprudence from international criminal tribunals, the International Criminal Court, regional human rights courts, and United Nations treaty bodies, it identifies both significant doctrinal advances and persistent inconsistencies. Although landmark decisions established that rape and other forms of sexual violence may constitute torture—and, in some cases, necessarily satisfy the severity threshold—subsequent cases have often characterized comparable conduct under the lesser-severity violations of cruel, inhuman, or degrading treatment. These uneven classifications frequently reflect an act-based approach that privileges rape while underestimating harms arising from forced nudity, reproductive violence, genital targeting, sexual humiliation, and gender-based violence against men and persons of diverse sexual orientations and gender identities. The article argues that rather than being treated merely as a characteristic that renders certain victims vulnerable, gender should be viewed as a social structure and instrument of power that perpetrators deliberately exploit to intensify pain, humiliation, powerlessness, and social injury. A legally rigorous severity analysis must therefore examine how gendered norms, roles, inequalities, and expectations shape both the form of violence and the suffering it produces. Integrating this structural understanding would make torture adjudication more consistent, less discriminatory, and more responsive to the realities of how torture is perpetrated and experienced.