Chemical castration - breaking the cycle of paraphiliac recidivism.
Chemical castration. The words cause a shudder in the consciousness of every libertarian in the country. Not only is "chemical castration" in the thoughts of legislators and judges across the country, it is also actually happening. California has recently passed a law that mandates chemical castration as a condition of parole for repeat sex offenders and the discretionary chemical castration of paroled one-time sex offenders. Although this news may shock and surprise some, upon a closer examination and unraveling of the issues, chemical castration may not be such a bad idea after all and may be here to stay as part of American jurisprudence.
The term "chemical castration" is actually a misnomer. No permanent physiological alteration is required to carry out this procedure. Depo Provera,(1) an FDA-approved birth control drug,(2) is administered in weekly injections and serves to quell the sex drive of male sex offenders.(3) This treatment, which will be explained further below, is not perfect however. The purpose of this article is to outline the debate surrounding the use of Depo Provera for "chemical castration" and the possible constitutional issues implicated by such use. To follow is an exploration of the nature and use of Depo Provera, followed by a discussion of the relevant constitutional issues. I conclude with a discussion of the ideal chemical castration statute and some of the provisions such a statute should contain.
II. Depo Provera: Background and Use
A. Description and Use of Depo Provera
Chemical castration is neither castration nor sterilization. Unlike actual castration, no permanent physical change is wrought in the body by the administration of Depo Provera to "chemically castrate" a sex offender (Fitzgerald, 1990). Depo Provera is an FDA-approved birth control drug that quells the sex drive of sex offenders; it lowers testosterone levels in males by decreasing androgen levels in the bloodstream.(4) This, in theory, reduces the compulsive sexual fantasies of some types of sex offenders. Side effects from the drug have been rare and "are believed to be fully reversible with cessation of treatment."(5)
Depo Provera treatment is a relatively recent response by some legislatures to help curb the recidivism rates of some types of sex offenders, most notably paraphiliacs,(6) or those possessed of uncontrollable biological urges in the form of sexual fantasies that can usually only be satisfied by acting on the fantasy and succumbing to the compulsion (Peters, 1993:313). This capitulation often ends in the perpetration of a sex crime while the paraphiliac attempts to act out his fantasy. It is important to note that this form of chemical castration is theoretically only useful on this one particular type of sex offender - the paraphiliac (Peters, 1993; Fitzgerald, 1990: 5). It should also be apparent that this drug regimen is only useful on male paraphiliacs since the effect of Depo Provera on females is to prevent conception (hence its use as birth control) and apparently has no effect on the sex drive (Recent Legislation, 1997: 800). Studies have shown that through the use of such a regimen of weekly Depo Provera injections, paraphiliacs' recidivism rates drop substantially from upwards of 90% to as low as two percent.(7)
B. California's Chemical Castration Statute: Penal Statute Section 645
In 1996, California became the first state in the Union to pass legislation allowing chemical castration of sex offenders.(8) In 1997, three other states followed.(9) California has clearly started a wave of legislative thinking aimed at alternative sentencing for paraphiliac offenders. California Penal Statute section 645 mandates Depo Provera treatment for paroled two-time sex offenders of all kinds (not just paraphiliacs) and grants the courts discretionary power to impose such treatments as conditions of parole for one-time sex offenders.(10) The California statute has many shortcomings given the positive potentiality of chemical castration and considering more ideal legislative drafting. Yet merely because the California statute is flawed does not mean that properly administered chemical castration is necessarily bad and we should be careful not to throw the baby out with the bath water.
Among the California statute's several flaws is its over-inclusiveness (Lombardo, 1997:2611). It fails to distinguish between paraphiliacs (the only type of sex offender for whom Depo Provera treatments are successful) and all other types of sex offenders - i.e., rapists and other violent sex offenders (Ibid.: 2616). Although the provisions of section 645 specifically involve sexual crimes against children,(11) no distinction is made between violent and nonviolent offenders, or between those that commit such acts out of anger or hatred as opposed to those who do so because they are compelled by their hormonally enforced fantasies (Lombardo, 1997: 2616). One could argue that this is not a meaningful distinction since most crimes against children under 14 years of age are presumably nonconsensual and thus are motivated by power or anger. Though this may be true as a matter of consent, the argument fails to appreciate the nuance between sexual compulsion and violent, hate-filled attack. Depo Provera is effective on the former, but it will not be on the latter since the latter's crime is motivated by non-sexually triggered mechanisms, which are not susceptible to appeasement by chemically reducing the sex drive (Fitzgerald, 1990: 4-5).
Another major flaw of the California legislation is that it offers a convict the alternative of voluntarily undergoing a "permanent, surgical alternative to hormonal chemical treatment."(12) If such person so opts, he or she will not be subject to the provisions of the statute. Although this provision sounds legitimate since it is voluntary, this subsection of the statute runs into serious constitutional obstacles since it offers physical castration for chemical castration, which is clearly impermissible under our current constitutional framework. Castration and sterilization have been held to be unconstitutional as cruel and unusual punishments and since it is against public policy to allow a government to mutilate its citizens.(13) If this subsection is allowed to take full effect and is followed across the nation, the judicial system would be engaging in the business of trading body parts for certain criminal sentences, a notion that is clearly repugnant to all social mores and norms. The courts should no more engage in such trade-offs than it should allow convicted robbers to chop off their hands in exchange for lighter sentences.
The California statute also fails to distinguish between male and female sex offenders. This opens the statute up to constitutional attack as mandating disparate impacts based solely on gender (Recent Legislation, 1997). However, even if the latter attack should fail, using the same type of argument the statute is still logically flawed. Section 645 is facially neutral with respect to gender, but it will not have the same effect on women as it has on men. However, the effect on men is the very purpose for instituting such a law, since only the male sex drive is affected by Depo Provera (Ibid.). Since Depo Provera has no effect on the female sex drive and acts merely as a conception preventative,(14) the purpose of the law is lost when applied to women. A male's sex drive may be quelled and his compulsive sexual fantasies may be held in check, but a woman's would not.
Lastly, California Penal Statute section 645 is flawed under subsection (d) because it states that the treatment "shall" last as long as "the Department of Corrections demonstrates to the Board of Prison Terms that [the] treatment is no longer necessary."(15) Although this requirement may sound necessary to permanently quell the sexual compulsions of paraphiliacs, it is fundamentally flawed since it fails to recognize that probationary periods are limited in duration and any conditions must logically cease upon successful completion of that period. Once a convict has completed his or her probation or parole, his or her debt to society is considered paid and that person should no longer be compelled to do anything mandated by the Department of Corrections unless, or until, that person offends again.
C. Use of Chemical Castration as a Condition of Probation and/or Parole
Courts retain significant discretionary power when it comes time to grant a suspended sentence and probation to a convicted criminal in lieu of an actual prison sentence.(16) Parole boards enjoy similar powers.(17) Although a judge is supplied with a pre-sentence report and a sentence recommendation from the prosecutor, he or she still retains final say over the actual sentencing of the convict. It will now be possible for judges in chemical castration jurisdictions to condition probation (or parole boards to condition parole) on the convict accepting chemical castration. The convict is thus faced with the choice of going to prison (or staying there) or accepting the terms of probation, terms that include chemical castration. This choice may seem like a Hobson's choice when one considers the often gruesome consequences of keeping child molesters in general prison populations,(18) but there are still a few important issues worth discussing.
First, critics may argue that there is not much of a choice between probationary chemical castration and prison, and that informed consent issues implicate themselves at this point. However, a prisoner's freedom of choice is not being violated in such a scenario. Although the available options may seem somewhat constraining, there is a legitimate choice to be made and the prisoner must voluntarily make that choice. A lack of informed consent could only be charged if the convict were to refuse to accept the treatment and it was subsequently forced upon him.(19) To ensure that such claims do not arise, the orderly administration of chemical castration would have to be carried out in a manner consistent with the dictates of informed consent jurisprudence, with the convict knowing exactly what it is he is consenting to undergo.
Second, probation and parole are merely devices used by the legislature and the penal system to reward good behavior or nonviolent offenders in an effort to ease the strain on the already vastly overcrowded prison system (Fitzgerald, 1990: 1415). Probation and parole serve to preserve resources in a system that is already bursting at the seams (Ibid.). Although statutory mandates can be the source of rights, it seems safe to say that probation and parole are privileges, not fights. A convict forfeits his or her right to walk free among society upon conviction of a crime and may do so as part of probation or parole only through the good graces of the criminal justice system and the legislature. In sum, although the choice of accepting the terms of probation or parole may seem like a Hobson's choice, this choice would not even be available but for the current pressures on the penal system and the handiwork of past legislators (Ibid.). Convicts would be left to serve out their sentences in prison with no option for probation or parole.
Several other jurisdictions have seen fit to introduce chemical castration bills or to institute chemical castration laws.(20) In People v. Gauntlett,(21) a Michigan appellate court rejected chemical castration as a condition of probation due to the many unanswered questions regarding Depo Provera's safety.(22) In 1994, however, Michigan's house passed a bill requiring "chemical castration as a condition of parole for any two-time sexual offender convicted of first-degree sexual assault" (Silva, 1995: 1961-1992). Florida, Georgia, and Montana have since followed, enacting similar laws last year (Hanna, Kuczka, and Roe, 1997: 1).
The setting of chemical castration as a condition of probation or parole raises important corollary issues of informed consent that must be addressed for the procedure to be legitimated. Even though the law (as in California's case) may require chemical castration as a probationary condition, this fact does not necessarily mean the procedure is nonconsensual. Whenever any medical procedure is to be performed on a person, that person is entitled to an exhaustively complete description of that procedure, including its performance, its after-effects, its potential side effects, and its potential hazards (Fitzgerald, 1990:18). A paraphiliac who is presented with the option of undergoing chemical castration must be informed as to the nature of the procedure and must voluntarily give his consent for the treatment to begin.
III. First Amendment Implications
Several constitutional issues are implicated by a policy of chemical castration, but perhaps none are as fundamental or vital to the notion of a free society as those embodied in the First Amendment to the United States Constitution.(23) Of the rights that may be infringed by a regimen of Depo Provera treatment, the most notable is the convict's freedom of expression (Stelzer, 1997).
Freedom of expression is a fundamental right guaranteed by the First Amendment. That amendment has been held to encompass all manner of human expression and thought.(24) It could be argued that chemical castration inhibits a convict's freedom of expression by repressing his or her compulsive sexual fantasy, thereby constituting an insidious form of governmental mind control. Though this argument has some intrinsic merit, it fails to recognize the goal of such a chemical regimen - returning the paraphiliac's thought process to normal. Moreover, it has never been held that any of our fundamental rights are absolute. People have no more freedom to yell "Fire!" in a crowded movie theater(25) than women have a right to have an abortion in the third trimester of their pregnancies.(26) In addition, the government has always been free to impose time, place, and manner restrictions on the exercise of these rights.
Given these universally held considerations and restrictions on certain fundamental rights, freedom of expression is also constrained by certain governmental or societal interests.(27) The perverted fantasies of child molesters and the compulsive sexual fantasies of other paraphiliacs are arguably within this category of unprotected expression (see Fitzgerald, 1990: 26-31; but also Stelzer, 1997). Although the government has not, until this point, been able to effectively control the thoughts of its citizenry, the effect with regard to chemical castration is merely to return the offenders to a state of normalcy (Fitzgerald, 1990: 9). Once freed from such compulsive fantasies, paraphiliacs have an increased capacity to ponder other topics and to engage in a wider variety of activities that were previously impossible due to the constraints placed on their minds by their overwhelmingly compulsive fantasizing (Ibid.).
IV. Eighth Amendment Implications: Cruel and Unusual Punishment
Perhaps the most widely recognized and vehemently held position against chemical castration is that it violates the "cruel and unusual punishment" clause(28) of the Eighth Amendment (Lombardo, 1997: 2621-2645). Physical castration would certainly qualify as cruel and unusual and has been held to violate certain standards of decency and normalcy that we as a society have relegated to more barbaric times (Fitzgerald, 1990: 37; Peters, 1993: 308-310). Thus, the argument goes, chemical castration is in effect no different from physical castration because it robs men of the ability to procreate (another fundamental right) and effectively castrates them (Lombardo, 1997). This argument, however, is flawed in several ways.
Chemical castration does not physically alter the body other than by suppressing the production of testosterone, keeping it at "safe" levels (Fitzgerald, 1990: 6-7). Aside from some reports of dangerous side effects,(29) Depo Provera has not been causally linked to anything more serious than headaches and nausea, which are rare (Ibid.: 7). Depo Provera is even safer under the conditions of probation or parole since the treatment is only carried out for a relatively short span of time (the length of the probationary period). Most studies that have linked the ding to more serious side effects speculate that such effects may take place if the drug is used on a long-term basis, something usually not an issue when dealing with probationary periods, typically of short duration (Ibid.).
The U.S. Supreme Court has handed down several indicators to help determine whether a punishment is cruel and unusual. The first threshold element required to apply cruel and unusual punishment analysis is to determine whether the act is indeed punishment or whether it is treatment (Ibid.: 31-32). Many medical procedures, such as Depo Provera treatments, are subject to this treatment versus punishment argument (Lombardo, 1997: 2617; Fitzgerald, 1990: 31-33). If a medical procedure is a legitimate treatment being used in good faith as a preventative or curative measure, then it should not be deemed punishment and is thus not subject to Eighth Amendment analysis (Ibid.). Depo Provera treatment should fall under this protective umbrella.
In Rennie v. Klein,(30) a case involving the right to refuse medical treatment, the district court for New Jersey laid out a four-part test used to determine whether a medical application is a treatment or a punishment (Peters, 1993:318). The first test asks whether the drug or medical procedure has any therapeutic value, the second whether the procedure is accepted medical practice, the third whether the procedure is part of an ongoing therapeutic program, and the fourth whether the effects of the procedure are unreasonably harsh (Ibid.: 318-319).
Under the Rennie test, chemical castration is clearly a treatment and not a punishment (Ibid.: 319). Weekly Depo Provera injections have been proven to have therapeutic value by the significantly reduced recidivism rates among paraphiliac offenders(31) as well as its well-documented effect on the male libido (Fitzgerald, 1990; Peters, 1993). Second, Depo Provera treatments, though there remains some scholarly and legislative debate, are part of accepted medical practice. This fact is evidenced by studies documenting the drug's effectiveness, the lack of significantly widespread side effects,(32) and the approval granted by the FDA for birth control and cancer treatment. Third, chemical castration would be part of an ongoing therapeutic program administered as a probation or parole condition and should be regularly monitored by a medical professional during the course of the probationary term (Fitzgerald, 1990). Lastly, the effects of chemical castration are not unreasonably harsh. Paraphiliacs on Depo Provera are not significantly dysfunctioned in any way and the effect of reducing the offender's compulsive sexual fantasies is not harsh treatment by any definition.(33)
Chemical castration in the context of probationary conditions should be viewed as a legitimate medical treatment that not only attempts to effectively rehabilitate paraphiliacs, but also serves to fulfill the compelling state interest(34) of protecting children from child molesters. The goal of requiring chemical castration during probationary periods is to treat the offender in order to restore that person to health while allowing him to remain in the community and to maintain communal ties and employment (Fitzgerald, 1990: 57). There must be some psychological counseling in conjunction with the Depo Provera injections to help the paraphiliac master his compulsions (Ibid.: 39). Without such counseling, chemical castration as a rehabilitative device is impotent since treatments eventually cease as the probationary term ends (Ibid.).
If, contrary to the expressed purpose of Depo Provera treatments, a court should someday determine that such a regimen is not medical treatment, but is indeed punishment, we still have several criteria to guide us through constitutional analysis. According to Justice Brennan, a punishment is cruel and unusual if it inflicts a gratuitous amount of suffering (Lombardo, 1997: 2633). Another criterion, says Brennan, is whether the punishment violates the collective dignity of both the individual and society (Ibid.).
Applying Justice Brennan's criteria to chemical castration, one can see that it neither inflicts a gratuitous amount of suffering nor violates our collective dignity. According to accepted medical practice, Depo Provera creates no short-term side effects when used in males for chemical castration and inflicts no physical suffering whatsoever (Fitzgerald, 1990: 7-8). Though a claim for mental suffering may be lobbied against such a regimen, this should be no more credible than complaining about the mental suffering inherent in incarceration.
Further, chemical castration does not violate the collective dignity of society. To date, four states have adopted laws that provide for possible chemical castration.(35) There is also a plethora of scholarly literature favoring selective chemical castration (Fitzgerald, 1990; Peters, 1993; Silva, 1995; Bund, 1997). How can such a regimen violate the collective dignity of society when it has so many proponents? Given that convicts and nonconvicts have the same inherent value as human beings, Depo Provera treatment as a condition of probation or parole says nothing better or worse about this inherent value or their status as human beings (Lombardo, 1997: 2634-2635). Chemical castration is certainly no worse than requiring sex offenders to register in their local community. If sex offender registration laws do not violate the collective dignity of society, then chemical castration of paraphiliacs during probation or parole given in conjunction with psychological counseling should also withstand such scrutiny.
In other instances, the Supreme Court has stated three tests to determine whether a punishment is cruel and unusual (Fitzgerald, 1990: 36). The first asks whether the punishment is inherently cruel (Ibid.). Such a determination "must be judged by the norms of contemporary society and by its effects on the offender" (Ibid.: 36). The second asks whether the punishment fits the crime (Ibid.: 38). In pondering this question, a court must consider society's views of decency, whether the punishment is proportional to other serious crimes, and whether it is similar to comparable crimes in other jurisdictions (Ibid.). The third asks whether the punishment is excessive in relation to the achievement of legitimate state goals (Ibid.: 39).
Let us assume for the sake of argument that chemical castration has been determined to be a punishment and not a treatment. Under the first test, a regimen of Depo Provera is not inherently cruel. Nothing in the history of human beings tells us that temporarily chemically suppressing the sex drive of paraphiliacs is inherently cruel. If four states have adopted such legislation through their popularly elected legislatures and scholarly debate abounds, such a punishment cannot violate the norms of society. The other part of this analysis questions the effect on the offender. In this situation the effect on the offender is as benign as possible and is certainly less intrusive than a prolonged stay in a maximum-security penitentiary.(36)
The second test asks whether the punishment fits the crime (Ibid.: 38). Chemical castration is a safe, effective way to quell the paraphiliac's sex drive and prevent him from committing future crimes. This "punishment" seems to suit the crime quite well. What could be more fitting than diminishing the sex drive in order to quell compulsive fantasies that give rise to crime? The method of analysis under this test looks to society's views of decency. That four states have adopted chemical castration legislation is an indicator of how society views this practice. It would also be difficult to criticize controlled probationary programs such as Depo Provera treatments as indecent when it keeps offenders out of conditions in prison that may only serve to reinforce prior bad conduct.(37) With the convict being monitored while on probation, greater control can be had over the rehabilitative process. Under this test, chemical castration is also commensurate with other forms of punishment for other serious crimes. If anything, allowing a convict to avoid prison with probation or get out of prison early with parole is less serious than other punishments for other serious crimes and cannot reasonably be deemed cruel and unusual under such circumstances.(38) Although only four states have adopted legislation dealing with chemical castration, a comparison can still be drawn between methods of punishment. As with society's standards of decency, allowing a paraphiliac to live a normal life and remain in his community is not cruel or unusual when comparing such treatment to other jurisdictions that lock up all sex offenders and make no pretense about providing rehabilitative treatment.(39)
The third test seeks to determine whether the punishment is excessive in relation to the achievement of legitimate state goals (Fitzgerald, 1990: 39). If we assume that protecting children from child molesters and providing sanctions against paraphiliac offenders are legitimate state goals, then we are left with the question of whether chemical castration is excessive in relation to these goals. A probationary regimen of Depo Provera is not excessive in dealing with paraphiliacs for a number of reasons. To begin, probation and parole are technically offers for release from the state if the convict is willing to accept certain conditions. If one of those conditions happens to be a weekly injection of Depo Provera to quell the sex drive and help the paraphiliac control the compulsive sexual fantasies that lead him to commit crimes, then that condition is not excessive. To date, the only effective way to insure that paraphiliacs do not succumb to their traditionally high recidivism rates is to place them on a regimen of Depo Provera treatments (Ibid.: 39). This treatment is carried out in the least intrusive way possible to insure the maximum protection for society and the maximum freedom for the paraphiliac - i.e., not excessively.
V. Fourteenth Amendment Implications: Procreation, Privacy, and Liberty
Chemical castration legislation should cause concern for numerous reasons and should be subject to the strictest of scrutiny to insure that it is drafted properly and complies with all manner of constitutional mandates. The Fourteenth Amendment to the U.S. Constitution should play a particularly important role in such scrutiny so that the many freedoms protected under its auspices maintain their preeminent stance in our society. Among the many Fourteenth Amendment interests implicated by chemical castration statutes are the right to procreate, the right to privacy, and the liberty interest.
A. Right to Procreate
Not the least of the Fourteenth Amendment concerns implicated by chemical castration is the fundamental right to procreate (Peters, 1993: 322). Critics of Depo Provera argue that the paraphiliac's right to procreate is violated by having to take a drug that for all intents and purposes creates "erotic apathy" (Fitzgerald, 1990: 7) and effectively eliminates all desire and ability to engage in normal sexual relations (Lombardo, 1997). This concern, however, is baseless since it has been shown that paraphiliacs undergoing treatment with Depo Provera can engage in intercourse and conceive children in much the same way as other people (Fitzgerald, 1990: 7). Even though the convict may be subject to this "erotic apathy" (Ibid.), the ability to procreate is maintained and the sex drive is not entirely squelched, just diminished to the point where compulsion becomes controllable.
B. Right to Privacy
Fully enunciated for the first time in the landmark case of Griswold v. Connecticut,(40) the right to privacy had roots that originated in the penumbra theory.(41) Among the rationales given for allowing a right to privacy, the courts included: First Amendment guarantees of freedom of association, Third Amendment guarantees of protection of the home, Fourth Amendment guarantees of the protection of persons and property, Fifth Amendment guarantees against self-incrimination, Ninth Amendment guarantees of other unwritten liberties retained by the citizenry, and Fourteenth Amendment guarantees of fundamental rights (Fitzgerald, 1990: 40) and a "concept of ordered liberty."(42)
Even this most valuable of fundamental rights is not absolute, however, the government says. In Roe v. Wade,(43) even though a momentous victory was won for the right to privacy, the Supreme Court withheld absolute guarantees and stated that the right to an abortion is only guaranteed in the first two trimesters of pregnancy, and after that the government's interest in the life of the fetus outweighs the mother's interest in bodily autonomy. In Bowers v. Hardwick,(44) the Supreme Court stated again that the right to privacy was not absolute and held that a Georgia statute outlawing homosexual sodomy was constitutional as a conduct prohibition. In Stanley v. Georgia,(45) the right to privacy was upheld as protecting the ownership of pornography, while the court denounced the government's argument that protecting public morals would validate a violation of the First Amendment (Peters, 1993: 326).
The purpose of this exegesis is not specifically to show how the right to privacy has been limited over the years, but to show how certain governmental interests may and may not outweigh a person's right to privacy in certain instances. Chemical castration as a condition of probation is one of those instances and, as such, right to privacy arguments must fail. The government's interest in protecting children from molestation and in rehabilitating paraphiliacs outweighs any minimal intrusion upon the right to privacy caused by a required regimen of chemical castration.
C. The Liberty Interest and Its Accompanying Rights
The liberty interest protected by the Fourteenth Amendment has come to encompass a number of fundamental rights, including the rights to procreate and to privacy. Beyond these important rights loom another set of important, though perhaps less well known, principles or rights. Like the right of privacy, however, courts have never held the liberty interest to be absolute (Ibid.: 323). Among the state interests that can trump an individual's liberty interest are protection of life, prevention of suicide, protection of third parties, and protection of the medical profession (Ibid.).
1. Right to refuse medical treatment: Courts have traditionally held that a person maintains a liberty interest in his or her own bodily well-being and that this interest includes the right to make decisions about what to do with one's own body.(46) Along this line, courts have generally held that a person does have a right to refuse medical treatment so long as that right does not intrude upon a legitimate governmental interest such as preserving life (Ibid.: 44). Although informed consent is beyond the scope of this article, the discerning reader will note that the right to refuse medical treatment is the logical corollary to the right to consent to medical treatment.(47)
Chemical castration is a form of medical treatment that is within a person's right to refuse. However, the difficulty arises when a weighing of this right and the government's interest in preventing child molestation is performed. To overcome the right to refuse medical treatment, the government must demonstrate a rational relation to a legitimate state interest,(48) which in this case would be the prevention of child molestation, something well within the parameters of this guideline. A paraphiliac still retains some right to refuse chemical castration, however, by opting not to accept the terms of the probation or parole.(49)
2. Right to Treatment and Right to Rehabilitation: Courts have never recognized a fully conceived right to treatment for convicted sex offenders.(50) Although courts have upheld some minimal treatment requirements for involuntarily committed mental patients,(51) they have never upheld a requirement that the government must try to treat every criminal.(52) This principle comes into play in the present situation if a convicted sex offender attempts to argue that the government must let him go free as long as he voluntarily undergoes chemical castration. Here the sex offender assumes a right to treatment that requires the government to step in and do everything it can to further his rehabilitation (Peters, 1993: 324; Fitzgerald, 1990: 49-51). However, it has never been held that the criminal justice system must subscribe to the rehabilitation model or even have that as one of its goals (Fitzgerald, 1990: 53-57).
VI. An Ideal Chemical Castration Legislative Draft?
Although perfect legislation is impossible to draft, a good chemical castration statute should possess several key provisions. California's effort will most likely fail when its statute is struck down as unconstitutional for the reasons stated above. A proper chemical castration legislative draft should correct for the infirmities of the California draft, but should also contain specific provisions regarding treatment, monitoring, and legislative purpose. As a general policy note, two basic arguments can be effectively made in favor of chemical castration:
1. The need to alleviate already severe prison overcrowding, and
2. The need to avoid the high costs of long-term incarceration (Silva, 1995: 1992).
The ideal chemical castration statute must contain a statement of legislative purpose. No such statute is complete without a brief statement of the goals of that particular jurisdiction's criminal justice system. The legislative purpose and the section on system goals should state that the statute's purpose provides: (1) an alternative to incarceration for paraphiliac sex offenders; (2) a way to provide meaningful treatment to paraphiliacs in a way that constructively leads down the road of rehabilitation; (3) a way to curb high recidivism rates among paraphiliacs and, concomitantly, a way to better protect our children from sexual molestation. Although these three provisions cover only some possible purposes, they provide a foundation from which every jurisdiction should build. As in the treatment versus punishment distinction, it could prove vital in some jurisdictions to explicitly state that chemical castration in the context of probation or parole is a treatment and not a punishment. This provision would make it much less vulnerable to being struck down as cruel and unusual punishment by removing it from the context of the Eighth Amendment.
The statute then should specifically outline the ways to obtain such treatment and the manner in which such treatment is to be carried out. These provisions would have to address the time, place, and manner in which Depo Provera injections would be administered, as well as under what conditions such injections would be permissible - i.e., only for paraphiliac offenders who have been identified as such by competent psychiatric professionals. Since it is extremely important for proper identification of paraphiliac offenders who are amenable to such treatment (Fitzgerald, 1990: 5), any statute should explicitly state such requirements, including a list of offenses for which this treatment is available.(53)
Further, this statute must provide for some means to monitor and evaluate the probationary or paroled paraphiliac's process. Psychological counseling would have to be provided in conjunction with Depo Provera injections to help the paraphiliac adapt and learn to control his compulsive fantasies. This counseling should be explicitly provided for in the statute, which corrects for a major flaw in the California legislation. Failure to require such therapy in California is an oversight that may doom all such legislation. Lastly, failure to obtain a weekly injection would constitute a violation of probation or parole (Fitzgerald, 1990: 5).
Chemical castration through weekly Depo Provera injections in combination with psychological therapy is a safe, effective way to drastically curb the recidivism rates of paraphiliacs. Though the recently passed California Penal Statute section 645 has its flaws, the idea of using chemical castration as a probation or parole condition is constitutionally sound and is gaining in popularity. If drafted properly and used effectively and responsibly, chemical castration legislation could provide one more alternative to ease the problem of recidivism in certain populations of sex offenders. Not only would such legislation ease the burden on already over-taxed prison resources, it would also provide far greater protection for society's children by breaking the cycle of compulsion in which many paraphiliac offenders find themselves. Chemical castration should be considered a constitutionally novel alternative for treating paraphiliac offenders and a way in which such convicts can be effectively rehabilitated. The previous efforts of the criminal justice system in attempting to remedy this serious social problem have been, at best, impotent.
1. Depo Provera is the trade name for medroxyprogesterone acetate, a synthetic progesterone (female hormone). See Peters (1993). Depo Provera has been approved by the Food and Drug Administration for use with some cancers and as a female birth control method. See Recent Legislation (1997).
2. Pharmacia and Upjohn, the makers of Depo Provera, estimates that the drug accounts for seven percent of the domestic birth control market and that 7.9% of women between 15 and 19 use it, while 3.9% of women between 24 and 29 use it. See Gellene (1997: D3).
3. Depo Provera "restricts the release of luteinizing hormones (LH) from the pituitary gland, which in turn decreases androgen levels, particularly testosterone, in the bloodstream" (Peters, 1993: 310). This biological reaction in turn reduces the compulsive sexual fantasies of the male offender and lowers the sex drive (Ibid.: 310-311).
4. See Note 3 above and accompanying text.
5. Reported side effects from Depo Provera include weight gain, cold sweats, nightmares, muscle weakness, fatigue, breast cancer (in female dogs), and uterine cancer (in monkeys). See Peters (1993:311). Others report acne (see People v. Gauntlett, 134 Mich. App. 737, 748 ), testicular atrophy, diabetes, hypoglycemia, leg cramps, loss of body hair, insomnia, and phlebitis. See Fitzgerald (1990: 7).
6. Sex offenders are broken up into four groups: Type I denies perpetration of the crime; Type II admits the crime, but blames the behavior on nonpersonal forces; Type III are violent offenders motivated by nonsexual forces; and Type IV are paraphiliacs. See Peters (1993:312-313).
7. See Stelzer (1997: 1675-1676, fn. 11). Sex offender recidivism rates are extremely high as a matter of course and very few sex offenders are actually caught. See Fitzgerald (1990: 55, fn. 471). In a telephone conversation with an employee of the Connecticut Department of Corrections, the employee expressed the thought that almost all sex offenders repeat and are frequent "guests" in Connecticut's penitentiaries.
8. See Cal. Penal Code [section]645 (West, 1997).
9. Those three states were Florida, Georgia, and Montana. See Hanna, Kuczka, and Roe (1997: 1).
10. See Note 8 above.
11. The crimes that may implicate section 645 are sodomy, lewd or lascivious acts with a child under age 14, oral copulation, and/or penetration of genital or anal openings by foreign or unknown objects. See Cal. Penal Code [section]645.
12. Cal. Penal Code [section]645(e).
13. See Skinner v. Alabama, 316 U.S. 535 (1942) (compulsive sterilization struck down as cruel and unusual punishment); Davis v. Berry, 1990 W.L. 80052 (S.D.N.Y.), cited in Fitzgerald (1990: 37); Mickle v. Hendricks, cited in Fitzgerald (1990: 37).
14. An action that bears no relationship to curbing female sex offenders' crimes and also implicates the fundamental right to procreate, a topic discussed below.
15. Cal. Penal Code [section]645(d).
16. See generally People v. Gauntlett, 134 Mich.App. 737 (1984).
17. See generally Cal. Penal Code [section]645.
18. A Connecticut deputy assistant state's attorney informed me that child molesters are at the bottom of the prison pecking order and are often subject to brutal treatment at the hands of other convicts.
19. For the general law of informed consent, a topic beyond the scope of this article, see Korman v. Mallin, 858 P.2d 1145 (Alaska 1993); Hondroulis v. Schumacher, 553 So.2d 398 (La. 1989); Kinikin v. Heupel, 305 N.W.2d 589 (Minn. 1981).
20. See Lombardo (1997).
21. 134 Mich.App. 737.
22. See 134 Mich.App. at 750-752 (relying in part on a 1983 study conducted by the Connecticut Department of Correction). The medical community has since answered many of these questions and the drug has gained more widespread acceptance, having been approved as a method of birth control by the FDA.
23. U.S. Constitution, Amendment I.
24. See Stanley v. Georgia, 394 U.S. 557 (1969) (free speech includes all ideas and protects against government mind control), cited in Peters (1993: 326); Kaimowitz v. Department of Mental Health, 299 F. Supp. 117 (S .D.N.Y. 1969) (the government cannot attempt to control private thoughts), cited in Peters (Ibid.); Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978) (extent of legal thought control depends on the length and persistence of the effect on the person), affirmed 653 F.2d 836 (3rd Cir. 1981), cited in Peters (Ibid.).
25. The classic cliche to demonstrate how the First Amendment's guarantee of free speech is not absolute.
26. See Roe v. Wade, 410 U.S. 113 (1973) (holding that within the penumbra of certain privacy rights guaranteed by the various amendments to the Constitution, women have a constitutional right to have an abortion within the first two trimesters of her pregnancy).
27. For example, society prohibits nudity in public and labels it as "indecent exposure" and would continue to do so even if the nudists were trying to convey some political message.
28. U.S. Constitutional Amendment VIII.
29. See Note 5.
30. 462 F. Supp. 1131 (D.N.J. 1978) (upholding involuntary medication for therapeutic purposes), cited in Peters (1993: 318).
31. See Note 7 and accompanying text.
32. See Note 5.
33. Again, although side effects have been documented, they are rare. See Note 5.
34. The term "compelling state interest" is used here to suggest that chemical castration if properly drafted, should be lawful under the strictest of constitutional scrutiny since it can play a vital state role in protecting children from child molesters. A secondary interest, possibly not sufficient under strict scrutiny analysis, could be that chemical castration legislation is also an attempt by the legislature to develop effective new methods to alleviate the problem of prison overcrowding. See generally Silva (1995).
35. See Note 9.
36. In fact, the ABA recommends probation as an alternative to incarceration for four reasons: (1) it maximizes the convict's freedom while upholding the court's authority; (2) it "eases reintegration of the offender back into the community"; (3) it minimizes the social costs of imprisonment on the convict's family; and (4) it is cheap (Fitzgerald, 1990: 15).
37. See infra Note 38.
38. Along similar lines, with three states joining California last year in passing legislation, chemical castration in one jurisdiction may be extremely similar to chemical castration in another jurisdiction.
39. Not to mention the additional "punishments" doled out against the child molester within the walls of the prison by his fellow inmates.
40. 381 U.S. 479 (1965).
41. The theory that the right to privacy was guaranteed within the overshadowing umbrella of several other rights explicitly stated in the Constitution. See Note above.
42. Justice Harlan enunciated the "concept of ordered liberty" in his concurring opinion to Griswold. 381 U.S. at 500.
43. 410 U.S. 113 (1973).
44. 478 U.S. 186 (1986).
45. 394 U.S. 557 (1969), cited in Peters (1993: 326).
46. See Fitzgerald (1990: 44-45; 47-48). The Supreme Court explicitly recognized the right to refuse medical treatment in Washington v. Harper, 110 S. Ct. 1028 (1990) (upholding statutorily forced administration of drugs, but recognizing the right to refuse medical treatment at the same time).
47. See generally Newmark v. Williams/DCPS, 588 A.2d 1108 (Del. 1991) (right to refuse medical treatment discussed with regard to Christian Scientist parents who refused to consent for their child); In re Milton, 505 N.E.2d 255 (Ohio 1987) (adherent of faith healing had the right to refuse medical treatment on religious grounds).
48. See Ibid.: 48 (note that the right to refuse medical treatment only requires a rational basis and is thus not a true fundamental right).
49. See section II(C) of this article.
50. See Peters (1993: 325); Arizona v. Christopher, 652 P.2d 1031 (Ariz. 1982); Fitzgerald (1990: 50).
51. See Youngberg v. Romeo, 457 U.S. 307 (1982), cited in Fitzgerald (1990: 50-51).
52. See Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971) (first case to address the right to treatment), cited in Peters (1993: 324); Arizona v. Christopher, 652 P.2d 1031.
53. For examples, see Cal. Penal Code [section]645(c).
Bund, Jennifer M.
1997 "Did You Say Chemical Castration?" University of Pittsburgh Law Review 59:157.
Fitzgerald, Edward A.
1990 "Chemical Castration: MPA Treatment of the Sexual Offender." American Journal of Criminal Law 18.
1997 "Drug Firm Airing Ads for Female Contraceptive Marketing: Pharmacia and Upjohn's TV Commercials for Depo-Provera and an Industry First." Los Angeles Times (July 9): D-3.
Hanna, Janan, Susan Kuczka, and Robin Anne Roe
1997 "Defendant Offers Castration as Sentence: Child-Sex Case Suspect Raises Many Questions." Chicago Tribune (August 14): 1.
Lombardo, Raymond A.
1997 "California's Unconstitutional Punishment for Heinous Crimes: Chemical Castration of Sexual Offenders." Fordham Law Review 65.
Peters, Kimberly A.
1993 "Chemical Castration: An Alternative to Incarceration." Duquesne Law Review 31.
1997 "Constitutional Law, Due Process, and Equal Protection: California Becomes the First State to Require Chemical Castration of Certain Sex Offenders." Harvard Law Review 110.
Silva, Tracy L.
1995 "Dial '1-900-PERVERT' and Other Statutory Measures That Provide Public Notification of Sex Offenders." SMU Law Review 48.
1997 "Chemical Castration and the Right to Generate Ideas: Does the First Amendment Protect the Fantasies of Convicted Pedophiles?" Minnesota Law Review 81.
CHRISTOPHER MEISENKOTHEN (1260 Farmington Avenue, Apt. A2, West Hartford, CT 06107; e-mail: firstname.lastname@example.org) earned a B.A. in History and Sociology with Distinction in History, University of Connecticut in 1996; he is currently a J.D. candidate at the University of Connecticut School of Law. The author is an Article Editor for the Connecticut Journal of International Law.
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|Title Annotation:||Human Rights, Gender Politics & Postmodern Discourses|
|Date:||Mar 22, 1999|
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