I am sharing an article here that was written by Derek W. Logue and placed on the once fallen website (http://oncefallen.com/castration.html). I’m sharing Derek’s article in response to an article where a judge in Tennessee has Offered Inmates Reduced Sentences in Exchange for a Vasectomy or in the case of women forced long-term birth control.
“A judge in Tennessee is giving inmates a unique way to reduce their sentences: Have a vasectomy.” (http://www.nbcnews.com/news/us-news/judge-offers-inmates-reduced-sentences-exchange-vasectomy-n785256 ) Apparently the judge seems to be driven by the same misguided logic that destroyed hundreds of thousands of people’s lives during the eugenics movement. For more information on the eugenics movement see the previous article that has been shared on SOSEN.
Derek’s article is well-informed and well sourced and helps bring home the issues involved in demanding someone give up their reproductive rights for freedom.
Castration of Sex Offenders: “Off with their heads!”
By: Derek W. Logue
May 13, 2011, Addendum Added May 16, 2011
INTRODUCTION
“I lost my house, I lost my wife and now y’all trying to take my manhood.” – Francis Tullier
“It is time to give Caesar what is owed Caesar.” – Baton Rouge judge James J. Best, on accepting Tullier’s freedom in exchange for surgical castration [1].
Castration of people convicted of sex offenders is the most controversial concepts in American jurisprudence. As of this writing, nine US states (California, Florida, Georgia, Iowa, Louisiana, Montana, Oregon, Texas, and Wisconsin [2]) and a few nations (Poland, Germany, The United Kingdom, Israel, and Argentina [3]) have either laws on castration on the books or have used some form of castration as a form of sanction. Much of the public demand for castration seems to stem from our revenge-oriented society. However, issues of ethics and effectiveness surround the castration issue.
HISTORY OF CASTRATION
“It is better for all the world, if instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. … Three generations of imbeciles are enough [4].” – US Supreme Court Justice Oliver Wendell Holmes, in his support of the Eugenics movement in Buck v. Bell
Castration has been utilized since Biblical times, when eunuchs were utilized to guard women’s quarters or act as chamberlains. In the US, Indiana became the first state to allow physical castration in the late 1800s. Castration was further fueled by the Eugenics Movement, which sterilized 60,000 individuals in 33 states under the belief that certain
undesirable behavioral traits were genetically transmitted [5]. The practice of Eugenics was upheld in 1927 by the US Supreme Court in Buck v. Bell.
In Europe, castration of sex offenders has been in existence since the early 20th century. The Danish passed the first castration laws against sex offenders in 1929, soon thereafter, Germany (1933), Norway (1934), Finland (1935), Estonia (1937), Iceland (1938), Latvia (1938), and Sweden (1944) enacted similar laws. Germany (under the Nazi German Act of
Nov. 24, 1933) and Denmark were the biggest users of castration; as a result, many studies on castration came from these two nations [6].
“Chemical castration,” the use of medication to lower sex drive, was first prescribed in the US in 1944 [7]. Although some states had passed castration laws during World War 2, they fell quickly out of favor after the war [8]. However, by the late 20th Century, most court rulings stipulating castration as punishment was overturned on appeal, and a relieved public lauded itself for living in more enlightened times [9]. The use of castration made a return in 1996, when California became the first state to pass a chemical castration bill. Of the nine states that currently allow castration as a penalty, four allow “chemical castration only (Georgia, Montana, Oregon, and Wisconsin), four allow either chemical castration or voluntary surgical castration (California, Florida, Iowa, and Louisiana), and one (Texas) provides voluntary surgical castration as the only treatment option [10].”
DOES CASTRATION WORK?
”Why not give these people a shot to calm them down and bring them under control or, alternatively, give them the option of going under the knife?” — Assemblyman Bill Hoge of Pasadena, CA, in support of his castration bill [11]
Castration is based upon the idea that eliminating sexual urges would eliminate the reason for engaging in criminal sexual behavior [12]. Thus, a big question concerns whether castration is effective as a tool to reduce recidivism.
Those who have undergone surgical castration (mostly as the result of testicular cancer) indeed report low to no sex drive; however, men could still achieve and maintain an erection, as well as become sexually aroused to visual stimuli [13]. Among the few studies that have studied castration among sex offenders over the years, recidivism rates varied from zero to ten percent; however, the studies were generally plagued by many limitations, including no pre-surgery base-rate risk for sexual recidivism, lack of a true comparison group, non-sex offenders added to the group, no baseline data regarding pre-intervention offending and offense types, small sample sizes, and/or a lack of post-surgery corroboration of deviant sexual interest. These studies fail to take into account reasons for sexual offending outside the presence of a sex drive and testosterone [14]. Also, of the one study that boasted a zero percent recidivism rate, namely, the California Legislative Report of 1952, only 44 of the 60 in the report were convicted of sex crimes (four of those were not for “hands on offenses”) and of those, only 11 were repeat offenders [15].
So-called “chemical castration” (a term some experts consider a misnomer) is believed to be “safer” than surgical castration, yet there are a number of concerns with the use of chemicals to lower the sex drive. Dr. Ronald Langevin, a psychiatrist at the University of Toronto, ran into problems while attempting to study the efficacy of chemical castration. He found only 18 out of around 100 willing to participate in the study; only 12 have remained in the study after 3 months, with one admitting to flushing his pills down the toilet. He also noted the efficacy rate can be influenced by the voluntary nature of those willing to receive treatment, some patients becoming resistant to the treatment, or the treatment overridden by hormone replacements [16].
Many experts still argue that in certain circumstances, castration would have little to no impact on the propensity to re-offend. Defendants who deny the perpetration of the offense; defendants who admit the perpetration of the offense, but who blame their behavior on non-sexual or non-personal forces, such as drugs, alcohol, or job stress; and defendants who are violent and appear to be prompted by non-sexual factors, such as anger, power, or violence are believed to be minimally impacted by castration of either type [17]. Dr. Raymond Rosen, professor of psychiatry at the Robert Wood Johnson Medical School in New Brunswick, N.J., estimates that only about 60 percent of men who have sex with children are motivated by uncontrollable sexual urges, while others are influenced by other forces like aggression or antisocial inclinations [18].
ETHICAL ISSUES OF CASTRATION
”This is a celebration of not needing any scientific information or controls on punishment policy, and that naked aggression is much scarier.” — Frank Zimring, law professor at the University of California at Berkeley [19].
One of the primary concerns of the use of castration is the impact of castration on the human body. Spalding adds a laundry list of health problems including increased appetite, weight gain of fifteen to twenty pounds, fatigue, mental depression, hyperglycemia, impotence, abnormal sperm, lowered ejaculatory volume, insomnia, nightmares, dyspnea (difficulty in breathing), hot and cold flashes, loss of body hair, nausea, leg cramps, irregular gall bladder function, diverticulitis, aggravation of migraine, hypogonadism, elevation of the blood pressure, hypertension, phlebitis, diabetic sequelae, thrombosis (leading to heart attack), and shrinkage of the prostate and seminal vessels [20]. In addition, long term studies of castrated men show high levels of Gynecomastia (enlarged breasts) [21]. According to Dr. William Bremner (an endocrinologist at the University of Washington in Seattle) the drugs can “make men more like old women,” causing them to lose bone and muscle and to suffer premature osteoporosis [22]. It is worthy of mentioning like Depo-Provera have not been approved by the FDA for the purposes of chemical castration [23].
Another concern concerns the practice of exchanging freedom in exchange for undergoing the procedure. If a person is given the choice between castration and subsequent freedom with indefinite confinement as the alternative, then the choice of the former is not considered voluntary. A bill in Virginia sponsored by Republican assemblyman Emmett Hanger, Jr. would have exchanged castration for freedom, but was removed citing constitutional concerns [25]. The Council of Europe’s Committee for the Prevention of Torture raised concerns over two psychiatric hospitals for similar concerns over forced consent as well as lack of standards for determining treatment of sex offenders [25].
There are similar concerns in the US regarding the standards used to determine just who is the “ideal” candidate for this controversial form of “treatment.” A critique of Florida’s castration statute pointed out a lack of criteria for the “ideal” candidate, a lack of standards to determine who is a “medical expert” for purposes of determining ideal candidates, the lack of information to candidates of the side effects of the procedure, and the question of whether court findings can be disputed [26].
CONSTITUTIONAL ISSUES
“We are not trying to change to a Taliban nation. This sounds like a diktat you hear from Afghanistan. The idea is not to kill people or make them redundant but to bring about social change. It’s like saying cut the hands of a thief. This is not the language a civil society should be speaking in.” — Shabnam Hashmi, activist speaking against India’s castration proposal [27]
Perhaps the most immediate Constitutional concern is the 8th Amendment ban on Cruel and Unusual Punishment, a concern that derailed the 2006 Virginia bill. John Q. LaFond argues since the courts had struck down the lesser penalty of forced vasectomies as a form of punishment, the more intrusive act of castration should be struck down as well [28].
While some may argue castration is treatment rather than punishment, the nature of the bill and lack of treatment standards implies it was intended as a punishment [29]. In Canterbury v. Spence [30], the court stated that “the concept, fundamental in American jurisprudence, that ‘[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body.’” This argument is compelling as Alabama considers the first mandatory surgical castration bill in the modern era [31].
A second argument involves privacy rights, a right not explicitly stated in the US Constitution yet considered a fundamental right under the 14th Amendment. More specifically, this covers the right to procreate, as mentioned in Skinner v. Oklahoma [32]; it recognized castration as depriving one of a “basic liberty,” and any law threatening this right falls under strict scrutiny. While the US Supreme Court ruling in Skinner did not explicitly overturn Buck v. Bell, the
Skinner ruling impacted sterilization as a punitive sanction [33]. Chemical castration could be argued as more intrusive than a vasectomy as it involves a change sex drive [34].
Through various U.S. Supreme Court cases, standards were created for inmates invoking a right to refuse medical treatment. There must first be a determination that a mental illness or abnormality is present. Next, the proposed treatment must be in the inmate’s medical interest. Third, the mandated treatment must be essential for the inmate’s safety or the safety of others. Finally, there should be no less intrusive alternatives to the medical treatment ordered
[35]. These standards are closely tied to the 14th Amendment Due Process clause, which states that laws limiting fundamental rights must be narrowly tailored to serve a compelling state interest [36].
Because castration is directed at men, the law also violates the Equal Protection clause of the 14th Amendment as it represents gender discrimination; drugs used for chemical castration have different effects in women as they are typically used for birth control purposes. Second, castration laws do not differentiate between people who would respond to treatment and those who would not, as the decision to castrate is derived from a court ruling [37]. Spalding
argues that castration would be overbroad in sex cases fueled by non-sexual motives like revenge or anger, circumstances where castration would have no impact on rehabilitation [38].
The Florida castration law may also violate the Double Jeopardy Clause of the 5th Amendment. The law allows courts to circumvent the terms of punishment by adding a penalty for refusing treatment, an action that is normally not considered a crime [39].
CONCLUSION
“That’s an awful Draconian step to take. I personally would have been reluctant to ask for it. And I think most judges I’ve appeared before would be reluctant to order it unless it was off the Richter scale for awful.” — Bob Dekle, University of Florida professor and former state prosecutor [40]
Larry Helm Spalding and the Florida ACLU wrote objections to the Florida castration laws in 1997. Today, Florida’s castration law is still on the books but has not been utilized. Castration is still viewed as “Draconian” and prosecutors are reluctant to ask for the law, and those who would be considered for castration (i.e., those who committed very serious offenses) are least likely to be released in the first place [41]. In India, opponents of castration consider a castration proposal “Talibanesque” and that proposing castration “is not the language a civil society should be speaking in [42]. In Russia, some legislators are calling for castration laws citing a “wave of sex crimes” and “lax law enforcement” as justification for the law [43]. It sounds a lot like the justification used in the mid-1990s to justify the passage of castration
laws in America. In Virginia, castration is revisited as a cost-saving alternative to civil commitment in a culture facing a deep recession [44].
While castration may be gaining a new round of attention, it should not be seen as a viable solution. Castration harkens back to historical controversies like genocide, ethic cleansing, and Eugenics, laws that were not completely overturned but fell out of favor as Draconian measures. Short-term “cost-saving” would simply be countered by long term health problems associated with castration without guaranteeing elimination of motivation for committing sex crimes in the first place. The practice also raises a number of Constitutional issues, such as cruel and unusual punishment, lack of equal protection, and double jeopardy. The rights to procreate and refuse medical treatment are also considered fundamental rights. Castration appeals to our basest desire for revenge, but it still does not address the root causes. If anything, castration has proven the fact there is more to the root cause of sexually deviant behavior than the simplistic notion of raging hormones and testosterone.
The bottom line—Castration is more about revenge and less about prevention and treatment.
ADDENDUM 1: REGARDING FEMALE GENITAL CASTRATION/ MUTILATION
A reader sent me an e-mail asking me why I didn’t cover female genital mutilation. I see the practice as different from the issue of castration of registered sex offenders. No state has proposed female castration as far as I know. That being said, I will share this study since the effects of female castration is germane to the conversation:
http://www.nocirc.org/symposia/first/badawi.html
The most interesting point in this study was that even with in castrated females, up to 25% could still experience orgasm, and while sexual activity was more prevalent in non-castrated women(7.7 times more reports of sexual excitement and 2.2 times the amount of masturbation), there was still sexual activity and stimulation among castrated women, further proof castration is not entirely effective as a way to control sexual desire.
REFERENCES
- Koran Addo. “Offender castrated, set for release. 2TheAdvocate, Baton Rouge. March 4, 2011. http://www.
2theadvocate.com/news/Offender-castrated-set-to-be-released.html, Retrieved May 11, 2011
- Charles L. Scott, MD, and Trent Holmberg, MD. “Castration of Sex Offenders: Prisoners’ Rights versus Public
Safety.” The Journal of the American Academy of Psychiatry and the Law, 31:502-9. http://www.jaapl.
org/cgi/reprint/31/4/502.pdf, Retrieved May 11, 2011
- “Chemical castration.” Wikipedia 2011. http://en.wikipedia.org/wiki/Chemical_castration, Retrieved May 11, 2011
- Buck v. Bell, 274 US 200 (1927)
- Scott and Holmberg, “Castration”, p. 502
- Linda E. Weinberger, PhD, Shoba Sreenivasan, PhD, Thomas Garrick, MD, and Hadley Osran, MD. “The Impact of Surgical Castration on Sexual Recidivism Risk Among Sexually Violent Predatory Offenders.” J Am Acad Psychiatry Law 33:16–36, 2005
- Scott and Holmberg, “Castration”, p. 502
- Larry Helm Spalding. “Florida’s 1997 Chemical Castration Law: A Return to the Dark Ages.” Florida State
University Law Review, Vol. 25:117, p.119
- Spalding. “Florida” p. 117
- Scott and Holmberg, “Castration”, p. 502
- Gina Kolata. “The Many Myths About Sex Offenders.” New York Times, Sept. 1, 1996
- Weinberg, et al. “Impact”, p.18
- Ibid., p. 29
- Ibid., p. 24
- Ibid., p.23-24
- Kolata. “Myths”
- Spalding. “Florida” p. 123
- Kolata, “Myths.”
- Ibid.
- Spalding, “Florida,” p. 125
- Jean D. Wilson and Claus Roehrborn, “Long-Term Consequences of Castration in Men: Lessons from the
Skoptzy and the Eunuchs of the Chinese and Ottoman Courts.” The Journal of Clinical Endocrinology &
Metabolism, Vol. 84, No. 12, 1999. p. 4329-30
- Kolata, “Myths”
- Scott and Holmberg, “Castration”, p. 502
- Candace Rondeaux, “Can Castration Be a Solution for Sex Offenders?” Washington Post, July 5, 2006, B01
- Rob Cameron, “Council of Europe expresses concern at Czech castration of sex offenders.” Radio Prague, July 16, 2007
- Spalding, “Florida”, p. 124-5
- Himanshi Dhawan, “Chemical castration option worth exploring.” The Times of India, May 2, 2011. http:
//timesofindia.indiatimes.com/india/New-Article/articleshow/8138262.cms, Retrieved May 13, 2011
- Weems v. US, 217 US 349 (1910), Oklahoma v. Skinner, 316 US 535 (1942), Williams v. Smith, 131 N.E. 2 (Ind. 1921), Davis v. Berry, 216 F. 413 (S.D. Iowa 1914) rev’d, 242 U.S. 468 (1917). As note by John Q. La Fond. “Preventing Sexual Violence: How Society Should Cope With Sex Offenders.” American Psychological Association, 2005, p. 179
- Spalding, “Florida,” p. 126
- 464 F.2d 772 (D.C. Cir. 1972)
- Patrick McCreless, “Local Legislator wants pedophiles castrated.” Anniston Star, Apr. 6, 2011, http://annistonstar.com/bookmark/12644488-Local-legislator-wants-pedophiles-castrated, Retrieved May 13, 2011
- Skinner v. State of Oklahoma, ex. rel. Williamson, 316 U.S. 535 (1942), see Spalding, “Florida,” p. 129
- “Skinner v. Oklahoma.” Wikipedia, 2011. http://en.wikipedia.org/wiki/Skinner_v._Oklahoma
- Spalding, “Florida,” p.129
- Scott et al. “Castration,” p.507
- Reno v. Flores 507 U.S. 292 at 302 (1993)).
- Scott et al. “Castration,” p.508
- Spalding, “Florida,” p. 132
- Ibid., p. 134-5
- Pat Gillespie, “System leery of castrating sex offenders.” News Press of Fort Myers, FL, May 9, 2011. http://www. news-press.com/article/20110510/CRIME/110509045/System-leery-castrating-sex-offenders-, retrieved May 13, 2011
- Ibid.
- Himanshi Dhawan, “Chemical castration option worth exploring.” The Times of India, May 2, 2011. http:
//timesofindia.indiatimes.com/india/New-Article/articleshow/8138262.cms, Retrieved May 13, 2011
- Fred Weir, “Chemical castration: Why Medvelev suggests it for Russia’s pedophiles.” Christian Science Monitor, May 11, 2011. http://www.csmonitor.com/World/Europe/2011/0511/Chemical-castration-Why-Medvedev-suggests-it-for-Russia-s-pedophiles, Retrieved May 13, 2011
- Gillespie, “System leery”