Vis absoluta
In criminal law is the legal concept of violence between two forms distinguished: vis absoluta and vis compulsiva .
Vis absoluta is also referred to as "will-breaking" violence in criminal law. What is meant by this is that the violence makes it absolutely impossible for the victim to freely act or develop will. The victim is simply deprived of every opportunity to act according to his own will. Examples of this are: shackling, locking in, knocking down, stunning.
Demarcation issues
For several offenses, especially in the case of coercion , the concept of violence and in particular the demarcation between the compulsory and absolute use of force is controversial, because a clear demarcation between violence, the threat of violence and passive offender behavior that may not be punishable at all, is nevertheless the reaction of the victim influences, is very difficult in detail. This demarcation is sometimes necessary in order to be able to determine exactly who is criminally liable and who is not.
Torture debate
This distinction is also important for the torture debate . The argument used to justify torture is often that it can be a legal means of saving a human life, since it is a means of averting danger . A difference to the final fatal shot as a police measure against a hostage-taker who threatens his victims with death cannot be seen. The solution to this problem lies in the distinction between vis absoluta and vis compulsiva. The fatal shot is a vis absoluta, because killing the perpetrator removes any further possibility of danger. The torture with which a prisoner can be forced to reveal information (e.g. stating the hiding place of a kidnap victim) is, however, vis compulsiva. Whether a first-right conclusion ( a fortiori ) can be drawn from the permitted use of vis absoluta , that vis compulsiva (here: torture) must also be allowed in analogous cases, depends on whether vis compulsiva (seen in abstract terms) less has a drastic effect on the person concerned as vis absoluta. The argument for this may be that with vis compulsiva the person affected at least has the (often only theoretical) choice of whether or not to give in to the violence. This “choice”, which is usually only theoretical, is not very convincing. Vis compulsiva is used precisely to make the victim submissive, that is, to forcibly limit the choice of the victim so that he gives in and submits to the will of the perpetrator. On the other hand, as long as the victim is still following his or her own will and does not reveal the hiding place of a kidnap victim, for example, he is exposed to further violence. It would be absurd if the free choice of whether or not to give in to violence could serve as an argument in favor of using a means that combats this very free will.
Terms
Much more important is the fact that with vis compulsiva - if successful - not only the freedom of action of the person concerned is restricted, but also his freedom of will: The person concerned is forced to act against his own will. This would make vis compulsiva more drastic than vis absoluta, which only restricts the victim's freedom of action but does not affect his will at all. In this respect, the German expressions “willensbeugend” (for vis compulsiva) as opposed to “willensbruchend” (for vis absoluta) are unhappy. Also (actually only) at vis compulsiva “the will is broken”. With vis absoluta, on the other hand, the will of the victim that opposes the perpetrator is completely eliminated or circumvented.
