By Elaine A. Lisko, Health Law & Policy Institute
A February 12, 1998 report in The New England Journal of Medicine provides further support for the use of chemical castration to reduce criminal sex offenders’ recidivism rate, especially that of pedophiles. See Ariel Rosler, M.D., & Eliezer Witztum, M.D., Treatment of Men with Paraphilia with a Long-Acting Analogue of Gonadotropin-Releasing Hormone, 338 New Eng. J. Med. 416 (Feb. 12, 1998). In the study, the drug triptorelin was administered to a group of 30 men, all of whom suffered from long-standing paraphilia (25 of whom suffered from pedophilia in particular). Paraphilia is a recognized psychiatric disorder of recurrent deviant sexual behavior. Pedophilia is a form of paraphilia that involves sexual activity with children.
The study is legally significant on a number of fronts: 1) the subjects were men who were released from prison to participate in the study or men who volunteered to participate in the study to avoid prosecution for sex crimes; 2) the drug used appears to be more effective (100% vs. 60-80%), less risky (fewer side-effects) and more easily administered (monthly vs. weekly injections) than other drugs used to treat sex offenders chemically; and 3) psychotherapy was used in combination with administration of the drug.
Historically, opponents of mandatory chemical castration have argued against proposed and enacted legislation on constitutional and other grounds. Among the constitutional challenges raised is the contention that chemical castration constitutes cruel and unusual punishment under the Eighth Amendment. This argument posits that chemical castration is punishment, not treatment. In determining the retributive vs. rehabilitative nature of a statutory provision mandating medical treatment, courts have considered whether: 1) the procedure has a therapeutic value; 2) its use is recognized as an accepted medical practice; 3) it is part of an ongoing psychotherapeutic regimen; and 4) the unreasonableness of any side-effects outweigh its benefits. Among other challenges which opponents raise is the contention that chemical castration is effective only when it is voluntary and only as part of a comprehensive treatment plan. Opponents argue that only those who want to be helped will be and then only when they receive more than simple drug therapy.
Proponents of mandatory chemical castration can be expected to rely on the study to bolster their response to these challenges, contending that the study’s results are even more potent than those of previous studies of other drugs used to effect chemical castration. The proponents will argue more than likely that the reported 100% effectiveness rate of triptorelin overwhelmingly demonstrates its therapeutic value; that, while not currently used in American treatment programs and in need of further study, triptorelin may, and in light of its advantages over more commonly used drugs, arguably should become accepted medical practice in the future; that, as administered in the study, triptorelin was used in combination with psychotherapy; and that its side-effects are less severe than those of other drugs used currently. As a result, proponents will argue that mandatory chemical castration effected by triptorelin does not violate the Eighth Amendment. With regard to the non-constitutional challenges, proponents can be expected to argue that, although the study participants consented to the treatment, the circumstances under which they did so (i.e. to reduce or avoid criminal sanctions) are more in line with mandatory provisions than if the participants had sought treatment independently, outside of the criminal context. Moreover, concerns about the state’s ability to monitor and administer chemical castration are reduced arguably where monthly, not weekly, injections are required.
Whether triptorelin gains acceptance in the United States specifically as a legal means of reducing sex offenders’ recidivism rate, mandatory chemical castration appears generally likely to do so. At present, five states, California, Florida, Georgia, Louisiana and Montana, provide for mandatory chemical castration as a condition of child sex offenders’ sentences or parole. Another twelve states, including Alabama, New Mexico, New York, Washington and West Virginia, are considering bills that prescribe chemical castration for sex offenders, and at least six other states have considered such bills in the recent past. Texas allows for voluntary surgical castration of sex offenders; however, evidence of an offender’s plan to undergo such an operation may not be offered in exchange for a shorter sentence or parole.