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Very Unusual Punishment

Some states offer sex offenders castration as an alternative punishment. Is it too cruel and unusual?

Photo by Health Guru.

Some punishments seem to be a little too cruel and unusual—or are they?  In March, the Criminal podcast covered a 1983 sexual assault case where the judge gave the defendants two options: thirty years in prison or surgical castration.  The defendants all opted for prison.

Such a punishment option was naturally quite shocking, but it may have fit the crime.  The victim, Elizabeth Daniel, was raped repeatedly and burned with a lighter.  She lost so much blood that doctors considered it a miracle that she even survived.  But because she was sexually assaulted, the judge found it reasonable to remove the ability of the offenders to ever sexually assault someone again.

Two of the three convicted went on to lead relatively normal lives.  The third was released and continued to sexually assault women.  Maybe, had this man been castrated, he would not have continued on to rape others.  Some states have used this logic to mandate castration as punishment for sex offenses.

Currently, chemical castration is administered in many countries including the United States. 

However, states are not going as far as to force surgical castration on everyone, but are rather requiring chemical castration.  Chemical castration involves an injection of Lupron, a drug typically used to treat symptoms of prostate cancer.  Lupron essentially causes the body to produce testosterone at an above-average rate, which causes the body to shut down hormone production.  In turn, a male’s libido is destroyed temporarily, thus quelling his desire to participate in any sexual activity.

Currently, chemical castration is administered in many countries including the United States.  As many as nine states are using it as punishment, with more considering it.  California began administering chemical castration as punishment in 1996 for repeat sex offenders. There, castration is not an option, but is actually mandatory for offenders who have victimized anyone under the age of 13.  Doctors use Depo-Provera, a birth control drug typically administered to females, to diminish testosterone.  The injections must be administered regularly or the effects will wear off.

If the injections do fade eventually and allow a male to regain normal testosterone levels, is chemical castration actually cruel and unusual punishment?  The American Civil Liberties Union (ACLU) thinks so.  ACLU believes that chemical castration “interferes with the right to procreate and could expose users to various health problems.” The civil rights organization could be correct on those points: injections could severely interfere with proper brain and skeletal function.  Furthermore, while under treatment, offenders would not be able to reproduce, although this may be an intended punishment.

[T]here is no true alternative punishment for women. 

The Eighth Amendment mandates that cruel and unusual punishment shall not be “inflicted.”  What the framers meant by “cruel and unusual” has often been the debate of the Supreme Court.  For example, the Supreme Court frequently hears arguments over whether the death penalty as punishment for murder violates the Eighth Amendment.  In Gregg v. Georgia, the Court said that the death penalty was in fact not cruel and unusual because it has been used in England before the formation of the United States, and is “not without justification and therefore not unconstitutionally severe.”

Following that logic, chemical castration is not particularly cruel and unusual.  Considering that chemical castration is punishment for repeat-convicted child molesters, removing the ability to sexually function not only calms sexual desires, but it also somewhat physically stops the offender from sexually assaulting someone.  Combined with the fact that the chemical process is temporary and can wear off after just a few months time, chemical castration does not seem to be overly cruel and unusual.

Others argue that the procedure violates Fourteenth Amendment rights to equal protection.  The Equal Protection Clause requires that “laws of a state must treat an individual in the same manner as others in similar conditions and circumstances.”  Chemical castration could violate the clause because only men are forced to endure the punishment—there is no true alternative punishment for women.

Statistically, males commit a majority of sex offenses—an overwhelming 99% of sex offenders are male.  Therefore, it makes sense that there has not been significant time or resources spent on figuring out how to stop female sex offenders.  Additionally, females naturally have very low levels of testosterone.  Higher testosterone levels have been correlated with a higher likelihood of committing a sex offense.  Female offenders also tend to be driven to commit sex offenses in response to emotional problems, rather than sexual urges.  Because of this, chemical castration would likely not be effective to deter females from committing sex offenses.  Although technically forcing males to be punished with chemical castration would be a violation of the Equal Protection Clause, there is no viable alternative to punish females in the same manner.

[S]urgical castration is not a mandatory punishment anywhere in the United States.

Chemical castration may be a dream compared to its much harsher alternative: surgical castration.  Although surgical castration sounds like something that would only be performed in medieval times, it is still a very real punishment today.  In California, Florida, Illinois, Ohio, and Arkansas surgical castration is offered as an alternative to a lengthy prison sentence. Texas and Louisiana allow a man to opt to have his testes removed from the scrotum rather than removing the testicles completely.

Again, opponents claim the punishment is cruel and unusual.  However, surgical castration is not a mandatory punishment anywhere in the United States.  Therefore, if a male offender is surgically castrated, it is because he chose the punishment over a long prison term.  Assuming that the offender is mentally competent and informed of the side effects and risks, it is not proper to characterize a punishment he chose as cruel and unusual.  Suggesting that such punishment is so horrific is an insult to those who are sexually assaulted.

Surgical castration has proven to be effective in stopping sex offenders from offending again.  In Germany, those offenders who were surgically castrated only had a 3 percent recidivism rate.  A U.S. study showed that the recidivism rate for sex offenders who molest children was as high as 35 percent; sex offenders who never received any type of treatment had a recidivism rate up to 51 percent.

What if someone is wrongly convicted of a sexual offense?  Surgical castration is generally not offered as punishment to someone who is a first-time offender.  Chemical castration has been an option for first-time convictions, but because chemical castration is temporary, it can be immediately stopped if one is eventually exonerated.  The likelihood of someone who has been convicted of sex offenses multiple times actually being innocent is low, and therefore there is less danger of surgically castrating a person who is innocent.

Castration is not likely to become a widespread punishment in the United States  Last year, the Oklahoma Senate shot down a bill that would force chemical castration upon sexually violent offenders.  Although castration has proven to be an effective deterrent, the fear of the procedure, whether chemical or surgical, is enough to make lawmakers shudder.

Paige Miles Feldmann, Managing Editor
About Paige Miles Feldmann, Managing Editor (20 Articles)
Paige Miles Feldmann is a 2016 graduate and served as the Managing Editor of the Campbell Law Observer for the 2015-2016 academic year. Originally from Erie, Pennsylvania, she graduated from Penn State with a finance degree. Following her first year of law school, she interned with the Clerk of Superior Court for Chatham County, the Wake County Family Court, and the Wake County Public Defender. She also competed on a Campbell Law Trial Team in the Buffalo-Niagara Mock Trial Competition. Paige worked with the Wake County District Attorney as an intern in the misdemeanor section during her third year.
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