***Most Views – March 2014***
Chapman Law Review
CHEMICAL CASTRATION FOR CHILD PREDATORS: PRACTICAL, EFFECTIVE, AND CONSTITUTIONAL
Copyright (c) 2009 Chapman Law Review; Elizabeth M. Tullio
Every year approximately 100,000 to 500,000 children are sexually molested in the United States. This results in 10-25% of children being sexually abused by the age of eighteen–out of which 30-40% are females and 10-15% are males. With such high rates, child sexual abuse can be classified as an epidemic across the country. Friends, family members, and strangers commit these crimes. There are those who are attracted solely to children and others who are mainly attracted to adults, but occasionally attack children. While a number of different punishments and treatments have been implemented, there is no cure for such a condition. People are left wondering what to do, how to stop these offenders, and how they can keep their young children safe from such unspeakable horror.
Over the years, a number of treatments have been implemented including physical castration and invasive, almost cruel therapies. The crime of raping a child is so abhorrent that many states adopted laws that called for the death penalty for the commission of such crimes. However, sentencing these offenders to death is no longer constitutional, and those who are released often reoffend and end up back in prison. In reality, there has never been a widely used treatment that could be described as both effective and humane in treating pedophiles and child molesters. However, a certain treatment has been used and experimented with since the mid twentieth century that is both humane and incredibly effective in treating these offenders. This treatment is the next step in sex offender therapy and the best possible option for any child molester or pedophile. This treatment is chemical castration.
While chemical castration sounds almost barbaric, it is one of the more civilized forms of treatment that has been used on sexual predators. It is merely a type of hormone therapy that takes away the offender’s sexual desire. There can be some unpleasant side effects, but they are mostly reversible, and, overall, there is little pain and suffering associated with the procedure. Even the Catholic Church fully supports the procedure and set up the St. Luke Institute in the United States in 1985 where pedophilic priests undergo a combination of counseling and chemical castration for pedophilia. In addition to the effectiveness of chemical castration, it is also exponentially less expensive than the cost of keeping these individuals in prisons and hospitals, making it an almost perfect solution.
While a number of constitutional concerns arise with the use of such a procedure, this comment proposes that chemical castration does not violate the Constitution. For those states that require an offender to undergo such a procedure, the health and safety of the offender is taken into consideration and a number of procedural safeguards protect individuals from abuse. Because of these procedural safeguards, it is difficult to think of the treatment as cruel and unusual in any way. Additionally, there is a fundamental right to procreate as well as a right to refuse treatment that must be taken into consideration. However, chemical castration is not in violation of either right as it does not necessarily strip an individual of reproductive capabilities. Furthermore, keeping children safe from sexual predators is the absolute definition of a compelling state interest. Therefore, requiring chemical castration as a condition of parole or probation for pedophiles and child molesters is practical, effective, and constitutional.
A number of issues will be addressed throughout the text of this comment. The next section explains the true makeup of a child molester and how he is a different breed of sex offender. It will also discuss how it is necessary to do more than imprison such offenders, as rates of recidivism are incredibly high. Section III will examine different legislation that has been passed and treatments that have been implemented in dealing with these offenders, and why they have not solved the problem. Section IV will discuss chemical castration and how it is an effective treatment that can succeed in treating these offenders where others have failed. Lastly, section V will look at the constitutionality of requiring such offenders to undergo treatment.
I. The Problem
A. Getting to Know Your Friendly Neighborhood Child Molester
Child molesters and pedophiles are different from other sex offenders. A child molester is an older person “whose conscious sexual desires and responses are directed, at least in part, toward dependent, developmentally immature children and adolescents who do not fully comprehend these actions and are unable to give informed consent.” In fact, those who commit sexually deviant crimes against children, commonly referred to as pedophiles, are recognized as suffering from a disability. The latest edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) characterizes a pedophile as one who has suffered from “recurrent, intense sexually arousing fantasies, sexual urges, or behaviors involving sexual activity” with prepubescent children. The individual has either “acted on these sexual urges” or such urges and fantasies cause incredible difficulty or distress in their life. Pedophilia is one of the most common paraphilias listed in the DSM-IV. There are both male and female pedophiles, however, the rates of female pedophilia are so incredibly low and there is so little research on the subject that many doubt their existence. It should be noted that not every pedophile actually acts on their urges, nor does every person who commits such deviant sexual acts qualify as a pedophile under the DSM-IV.
There are two main groups of child sexual abusers. Those sex offenders who are primarily sexually attracted to children are known as “fixated” or “preference” offenders and those who are normally attracted to adults, but who also attack children are known as “regressed” or “situational” offenders. Situational offenders are more likely to blame their behavior toward children on drugs, alcohol, or other outside factors. Their behavior is impulsive and each attack can usually be linked to significant life stressors. These offenders will commit sexual acts with children as if the child is a surrogate for an adult companion. There are also violent pedophiles that attack children due to anger, the need to feel power, violence, or just sadistic pleasure.
Some of these regressed or situational offenders realize that what they are doing is not right and hate their sexual proclivities toward children. However, many offenders cannot stop themselves and it is as if they are addicted to these children. Alternatively, a number of offenders see nothing wrong with what they are doing. Some think that the child wanted the experience, enjoyed it, and that it was educational for the child. Fixated offenders often view children as being seductive and teasing the offender. There are many theories as to why one develops a sexual attraction towards children, but no one knows exactly why this happens. It has been attributed to a number of factors which include, but are not limited to: difficulties in forming intimate relationships, brain abnormalities, being sexually abused as a child, and even having a brother. In the end it does not matter what category of child predator the offender falls into or why, but that every single one of them is incredibly dangerous.
B. Recidivism Rates
Merely imprisoning child predators will not stop the attacks on children. The average prison sentence for a child sexual abuser is eleven years and, once released, there are incredibly high re-offense rates. Prison is not much of a deterrent for sex offenders as many of these individuals “revert to earlier patterns of behavior” without further treatment. Mere imprisonment may deter some offenders, but most are still going to offend regardless of what the penalty is. Being that, in a number of cases, the abused child and the sexual predator are often the only ones that know of the offense, the risk of actually being caught is very low. Therefore, while the punishment for such an offense is often quite severe, it does not stop the offender from sexually victimizing children: many are driven by their urges and do not view getting caught as a reality.
Case studies conducted on released child sexual abusers have uncovered appalling results including that approximately 50-70% of those released eventually re-offend. While some researchers argue that these rates are much lower, findings of low rates can be attributed to data collected from unreliable sources. Being that the numbers in these studies are all based on self-reports and police or conviction records, a majority of attacks have gone unreported. Studies have found that offenders commit two to five times more offenses than those for which they are arrested or convicted. Often, before an offender is released, assessments are done to determine if he presents a substantial risk of reoffending. However, so many factors are linked to sexual recidivism that it is impossible to predict who really presents a substantial risk, making life imprisonment the only way to ensure that the offender will not reoffend.
II. Inadequate Solutions
A. Sex Offender Registration
Since implementing a life sentence for every sex offender, or even just for every child molester and pedophile is unreasonable and unrealistic, states have taken steps to keep communities safe from released sex offenders. In 1947, California was the first state to have any kind of registry system for sex offenders, and it now has more registered sex offenders than any other state. Today, there are currently over 11,000 registered sex offenders residing in Los Angeles County alone. Throughout the late Twentieth Century, the laws regarding sex offender registration have evolved, in large part, due to the numerous attacks on children. It was not until the 1990’s, after the brutal rape and murder of seven-year-old Megan Kanka in New Jersey, that a public outcry was heard for something more to be done to protect the nation’s children. Unbeknownst to Megan or her family, their new neighbor across the street was a recently released sex offender. When Megan went over to her neighbor’s house to see a puppy, she ended up being raped and strangled to death with a leather belt. No one in the community had any idea that they lived near a sexual predator.
After Megan’s death, New Jersey passed an entirely new kind of sex offender registration law. By the late 1990’s, implementing sex offender registration laws was not anything new: over 25 states had already put such laws into action. However, there was a big difference between the laws enacted in New Jersey after Megan’s death and those throughout the rest of the nation. New Jersey became the first state to require public notification in addition to the individual registering as a sex offender. New Jersey’s new law caught political attention as the Federal Omnibus Crime Bill was passing through Congress, which contained the Jacob Wetterling Crimes Against Children and Sex Offender Registration Act (“Jacob Wetterling Act”).
President Clinton amended the Jacob Wetterling Act by signing Megan’s Law so that, in addition to requiring every state to compile a registry for sex offenders, the states were required to release relevant information to the public about such individuals residing in the state. Compliance with the act was deemed so crucial that 10% of a state’s federal funding was made contingent upon the timely passage of similar laws in each state. Sex offenders required to register have challenged these laws as an invasion of privacy. Given that the purpose of these laws is to protect the community and keep children safe from sexual predators, the states have held that such regulations are legitimate. The U.S. Supreme Court even ruled that laws requiring sex offender registration and community notification are constitutional. The Court held that the “mere injury to reputation” that these laws may cause, “even if defamatory, does not constitute the deprivation of a liberty interest.” While these laws are a step in the right direction, more needs to be done to ensure the safety of our children. Even with public notification systems in place, a child predator remains dangerous.
B. Capital Child Rape Statutes & Their Unconstitutionality
A number of states have realized that a community’s awareness of convicted child molesters will not, by itself, ensure the safety of its children. In fact, starting in 1993, a number of states went a little too far and enacted statutes that made it a capital crime to rape a child under the age of twelve. Almost twenty years before these states began enacting capital child rape statutes, the U.S. Supreme Court held in Coker v. Georgia that issuing the death penalty for the rape of an adult woman is unconstitutional as it is a disproportionate punishment for a crime in which there is no loss of life. In Kennedy v. Louisiana, in 2008, the U.S. Supreme Court applied similar logic in finding that implementing the death penalty in cases of child rape was a grossly excessive punishment which violated the Cruel and Unusual Punishment Clause of the Eighth Amendment. At the time the decision was handed down, Louisiana, South Carolina, Montana, Georgia, and Oklahoma all had laws which deemed the rape of a child to be a capital offense.
Arguably, these states found the rape of a child to be such a deplorable act that even though the offender had not taken a life, he deserved to have his life taken for the commission of such an act. In fact, the Governor of Louisiana, Bobby Jindal, stated in an interview that he found the Court’s decision in Kennedy to be an “awful decision.” In reaction to the Court’s decision, Governor Jindal stated: “That’s ridiculous . . . We don’t want anybody in Louisiana harming our children. We think these monsters need to be stopped . . . If there is any other crime other than taking human life . . . that screams out for the death penalty it’s those criminals that harm our children.”
While the state requested a rehearing on the case due to certain factual errors, the Court denied the request in October 2008. The Supreme Court’s decision in Kennedy v. Louisiana still stands, so implementing the death penalty for the rape of a child constitutes cruel and unusual punishment in violation of the Eight Amendment. Society’s abhorrence to crimes of this nature is obvious. However, the dilemma as to what to do with those who commit sexual crimes against children remains. Imprisonment keeps pedophiles away from children. However, those released back into the community often end up reoffending. The death penalty is far too harsh a punishment, yet more needs to be done to protect our children. Punishing offenders simply is not enough; it is necessary to take all steps possible to rehabilitate them.
C. Treatment, Surgery & Disappointment
In reality, “active pedophiles who find their way into the few treatment programs around the country turn out to be less of a risk than those who are locked up for a while and released.” Scientists in the 1940’s realized that “[p]unishment alone is a wasteful and useless procedure” for a child sexual abuser. Time spent in prison does nothing to treat the offender’s sexual proclivities toward children. These offenders need serious help in controlling their urges and leaving children alone.
A number of treatments have been used on pedophiles and child molesters, some of which are bizarre and even seem absurd. Aversion therapy, also known as covert association or covert sensitization, is a common cognitive behavioral treatment that has been used to treat child molesters. Here, the deviant sexual behavior or fantasy is associated with unpleasant stimuli so that the offender will associate the deviant fantasies with the unpleasant stimuli and no longer find them arousing. Even though aversion therapy is promising for some offenders, the effects are not long lasting. The unpleasant associations “lose their pervasive effectiveness quite quickly” and need to be strengthened continuously, which is difficult to do.
Other treatments include directed masturbation and satiation procedures. Directed masturbation is where an individual masturbates to pictures of adults or to adult sexual fantasies in an attempt to associate the pleasure of having an orgasm with these fantasies and images. The hope is to increase the offender’s ability to become sexually aroused by adults. However, this treatment is useless against the situational offender who is already attracted to adults, but still goes after children. As for the satiation procedures, there are two different types: verbal and masturbatory. Verbal satiation is where the offender is directed to say deviant fantasies out loud until it becomes boring and tedious. Masturbatory satiation is a procedure in which the offender is directed to masturbate to deviant sexual fantasies for prolonged periods of time without orgasm. The idea is that the uncomfortable experience will be associated with the “deviant sexual interest” thereby diminishing it. While these procedures are undoubtedly unpleasant, they appear to do little to lessen the offender’s attraction to children.
Other treatments including anger management, conflict resolution, social skills training, and victim empathy have also been implemented. One case study even used music therapy and drum playing to treat a child molester. The proponents of music therapy say that it allows the offender to express himself, develop listening skills, learn self control, and reduce the offender’s resistance to therapy and level of denial. However, while the case study showed that he became more open and learned to play the drums, nothing actually indicated that the offender was less likely to sexually victimize children.
Unfortunately, psychological and behavioral treatments alone are not effective in treating all pedophiles and child predators. First of all, a number of released pedophiles will not even seek out treatment unless their urges cause them great distress or a court has forced them to undergo treatment. Others who want help may be afraid to talk to anyone about what they have done. Pedophiles and sexual predators who have attacked large numbers of children usually have not disclosed all of their offenses. They have been trained to deny their offenses, being that in the legal system, further disclosure of any unknown offenses will only lead to lengthier prison sentences. With society’s abhorrence to sexual crimes against children, it is not uncommon for many such offenders to be afraid of telling anyone about their offenses, including therapists, for fear of incarceration. Also, a number of those who do undergo such psycho-behavioral treatment do not actually receive any benefit from it. Research has revealed that while some offenders are effectively treated with just psychotherapy and behavioral reassessment therapies, this same treatment is completely ineffective on other sexual offenders. These offenders need more than just a few therapy sessions to prevent them from reoffending.
On the more drastic side, physical castration and neurosurgery are two options that have also been considered for the treatment of child molesters. Neurosurgery “involves removal of part of the hypothalamus to . . . decrease sexual arousal and impulsive behaviors.” The procedure was more common in Europe than it ever was in the United States. However, it was rarely ever implemented and, in reality, has not been used in decades. Additionally, “this procedure has a high failure rate and adverse [consequences].” Plus, mandating that part of the offender’s brain be removed crosses ethical and moral lines. Therefore, because brain surgery is ineffective, highly invasive, and unethical, it cannot be considered as a serious treatment for pedophiles and other child predators.
Physical castration is a drastic measure, although it is nowhere near as dangerous, ethically unsound, or constitutionally questionable as neurosurgery. Though physical castration has its advantages, a number of flaws remain. Physical castration, or orchiectomy, is a surgical procedure in which a man’s testes are removed. This causes a dramatic drop in the levels of testosterone in the body which severely decreases a man’s sex drive. Studies have shown that the offender will feel calmer, happier, more passive, and less likely to reoffend. The offender is better able to suppress violent and aggressive urges making it easier for him to live in society. Additionally, while the sexual recidivism rate for non-castrated offenders is around 50%, the re-offense rate for a sex crime among castrated offenders is usually 1-5%.
While physical castration proves to be highly effective, there are a number of ethical and constitutional concerns associated with it. There is no problem if a patient voluntarily undergoes such treatment completely out of their own free will, which some patients have done in order to stop their deviant sexual urges and live normal lives. However, there are a number of problems when physical castration is statutorily mandated for those who commit such offenses. First, it is a permanent procedure. While certain effects can be reversed by injections of testosterone, nothing can replace what was removed through this invasive surgical procedure. Physical castration is literally a life sentence. Therefore, just like executing an innocent individual who was wrongly convicted, nothing can be done to remedy a wrongly convicted sex offender who was forced to undergo surgical castration. In addition, there are a number of adverse mental and physical side effects including metabolic changes, depression, and suicidal tendencies. While certain states allow for sex offenders to voluntarily undergo physical castration to avoid longer sentences or chemical castration, no state requires the offender to undergo physical castration. Forcing someone to undergo a permanent and life altering surgical procedure challenges what is ethical and constitutional.
III. Chemical Castration: A New Hope
An almost perfect solution to keep child molesters from reoffending would be a treatment with the effectiveness of surgical castration, but without the ethical dilemmas. This solution is chemical castration, which a number of states have already implemented. Many people find any type of castration an unsettling punishment due to its improper uses throughout history. However, chemical castration is one of the most effective and least restrictive ways to help treat child predators and keep children safe.
A. The Why & How of Chemical Castration
Chemical castration has been experimented with ever since the 1940’s with the use of anti-androgens to lower the testosterone levels of sexually dangerous males. About two decades later Dr. John Money became the first person in the United States to administer the anti-androgen drug Medroxyprogesterone Acetate (MPA) to sex offenders. While other chemical agents have been administered to such offenders throughout the world, MPA is the most commonly administered drug in the U.S. for the purposes of chemical castration. In fact, the MPA is administered through injections of the drug Depo Provera, which is used by many women as a hormonal contraceptive. The reason it has such different effects on men that undergo such treatment is that women only receive 150 mg of the drug every 3 months. Sex offenders receive the drug every week, usually in higher doses.
MPA is able to reduce the occurrence of sexual imagery and lessen the offender’s level of sexual desire. MPA is administered through weekly intramuscular injections of 100 to 1,000 milligrams of the drug, depending on the needs of the offender. The MPA inhibits the release of the follicle stimulating hormone and the lutenizing hormone from the brain’s anterior pituitary gland. Essentially, the drug causes the brain to believe the body has enough testosterone and so it does not allow the testicles to produce anymore. The effect is a reduction in the levels of testosterone in the offender’s blood down to that of a pre-pubescent male within one to two weeks; this low level of testosterone greatly lowers the offender’s sex drive. The offender is then temporarily impotent and, when the drug is in full effect, there is a reduction in orgasm, sperm production, sexual frustration, and the frequency and satisfaction of masturbation. One of the most appealing aspects of chemical castration is that the offender is made calmer and more responsive to psycho-behavioral treatment. The injections suppress the offender’s sexual urge and desire as well as make it easier for the patient to concentrate on therapy, control his behavior, and prevent relapse.
The drug has the incredible effect of keeping the pedophile or child molester from offending, but scientists disagree as to how long the drug needs to be administered. Some researchers have stated that the hormone therapy should be for a few months, others for up to five years, and some researchers argue that the taking of these medications should never stop. The main argument for continuing the treatment is the fact that the effects of the drugs, especially MPA, are reversible once weekly injections stop. It is said that in order to properly treat the offender, they must undergo behavioral therapy as well as the hormonal treatments in order to treat the problem as a whole. The idea is that proper treatment will treat the person and not just try to get rid of the offending behavior. Either way, there is no doubt that the administration of these drugs is effective and has kept numerous offenders from sexually victimizing children. As stated by one released offender undergoing hormone therapy treatments, “I realised [sic] that I could walk down the street, see boys I found sexually attractive, and not be possessed by thoughts about having sex with them . . . It took that edge off.”
B. Recent Legislation
Recognizing the overall societal benefit, a number of states have already enacted chemical castration statutes for certain sex offenders. California was the first state to implement a chemical castration statute in 1996 when it made the procedure a condition of probation for certain offenders. Today, a number of states have followed California’s example including Montana, Iowa, Wisconsin, Louisiana, Oregon, and Florida. In fact a number of states have gone even further than California in their adoption of such statutes. California requires offenders to undergo chemical castration if they are convicted of multiple offenses against a victim under the age of thirteen. Louisiana, Wisconsin and Iowa also require that the offenses must be against a child for MPA injections to be implemented, but Florida, Oregon, and Montana have no age requirement for the victim. While some states leave it up to the court’s discretion, California, Iowa, and Florida all make MPA injections a mandatory condition of release for those with multiple convictions. In addition, Iowa, Louisiana, California, and Florida allow offenders to avoid MPA treatments if the offender voluntarily undergoes physical castration. Plus, Texas only gives the offender the decision to undergo voluntary surgical castration as a condition of release and does not offer chemical castration as an option. These states have all realized that more than just imprisonment is necessary to keep a sex offender from re-offending, and most of them realize that chemical castration is the most proper means to achieve that end.
C. Chemical Castration vs. Incarceration
Another reason why chemical castration is so appealing is that it allows the offender to be out of prison and comes at a cost that is exponentially lower than incarceration. In 1985, state governments spent $9 billion on corrections. In 1993, state, local, and federal governments combined spent almost $100 billion on the justice system and, in 1996, states spent about $27 billion on corrections. The average cost of housing and caring for an inmate is approximately $20,000 per inmate per year. Furthermore, the actual amount spent on incarceration is much higher being that costs for projects such as building new prisons are not included into agency budgets. With these costs, keep in mind that between 1980 and 1994 alone, the population of imprisoned sex offenders grew approximately 330%. Of these offenders, two-thirds sexually victimized minors and more than half of that population went after children under twelve years of age.
Even when such offenders are released from prison, many of them are involuntarily committed to hospitals and continue to cost the state money. Ever since the 1930’s there have been laws pertaining to “sexual psychopaths” or “sexually violent predators” that require that such offenders are institutionalized after they have served their time in prison or after being found not competent to stand trial. Today, when an offender is placed in one of these institutions they can regularly petition for release. Nevertheless, the offender is usually held until both a psychologist and the court agree that the individual’s “personality disorder” or “brain abnormality” has “changed” so that he is “deemed safe” for release. There are currently seventeen states that fund the involuntary commitment of such individuals. The cost of the programs varies between the states and the yearly cost ranges from $500,000-$45 million.
As of 2002, weekly injections of MPA cost $160 per month. While this is the cost of the drug alone and does not include additional costs involved with probation or further therapy, the difference in cost remains phenomenal as the average cost of one inmate’s incarceration is over $1,660 per month. This difference is magnified when coupled with the fact that incarceration can be fifteen times more expensive per prisoner than for those on parole or probation. In addition, Iowa and Louisiana require the offender to pay for his own treatment once released to lower costs even further. Implementing chemical castration as a condition of release could allow prisoners to get out of prison sooner, help them control their urges, get jobs, and reduce prison crowding and spending. In fact, it has even been stated that “0.5 to 0.7% of gross domestic product is lost by incarcerating felons rather than placing them in jobs.” Even the American Bar Association endorses probation over imprisonment, as cited in State v. Christopher, finding it to be:
a desirable disposition . . . [as it] maximizes the liberty of the individual while vindicating the authority of the court; it eases the reintegration of the offender into the community; it minimizes the hidden costs that imprisonment places on the family of the offender; and is it the most economic form of correctional supervision.
The Christopher court agreed that a good reason for granting probation was to “alleviate the overcrowding in our prisons by not incarcerating those people with whom the state can adequately deal in other ways.” Requiring chemical castration for released child molesters and pedophiles is the most logical choice in to drive down costs and recidivism rates as well as help get some of these people out of prison to become fully functioning members of society.
IV. The Constitution & Why Chemical Castration Is Perfectly Acceptable
The United States Supreme Court has never directly assessed the constitutionality of chemical castration. While some find the administration of MPA to sex offenders to be a questionable procedure, chemical castration is not harsh enough to be classified as cruel and unusual punishment. Because it is so effective, the effects are reversible, and it deals with the safety of children–an unquestionably compelling state interest–this procedure is not in violation of the Constitution.
A. Chemical Castration Is Not Cruel & Unusual Punishment
According to the Eighth Amendment of the United States Constitution, the federal government prohibits any punishment that can be categorized as “cruel and unusual”. In 1972, in Furman v. Georgia, the U.S. Supreme Court held that excessive punishments which are “greatly disproportioned to the offenses charged” constitute cruel and unusual punishment in violation of the Eighth Amendment. Therefore, any punishment that is grossly excessive to the crime charged is prohibited.
The only court in history that found chemical castration to be a disproportionate sentence was the Michigan Supreme Court in People v. Gauntlett in 1984. In Gauntlett, MPA was going to be administered by injections of Depo-Provera to a man who was convicted of raping his fourteen-year old stepdaughter and molesting his twelve year old stepson. The court believed that administering these injections was an “unlawful condition of probation.” This is because the Food and Drug Administration (FDA) had not approved the drug when the decision was handed down in 1984. At that time it “had not [yet] gained acceptance in the medical community as a safe and reliable medical procedure.” Today, however, this argument has no merit because the drug was deemed safe and approved by the FDA in October of 1992.
Even though the drug is safe, there are still some unpleasant side effects of chemical castration. These include, but are not limited to, loss in bone density, weight gain, loss of body hair, depression, and fatigue. The majority of these side effects are reversible and the most severe ones are rarely experienced. This is one of the reasons that the dosage of MPA given to the offender is often kept as low as possible. While it is necessary to put an end to deviant sexual behavior, the offender’s safety is not disregarded. Even though some offenders may receive the injections for the rest of their lives, the dosage may be lowered over time if deemed necessary or if the offender shows improvement. Courts take these side effects into account in ordering individuals to undergo such chemical therapy. If the courts simply forced individuals to undergo or continue treatment that would result in serious harm, then the procedure could be seen as cruel and unusual punishment.
In addition to protecting the individual’s health, states with mandatory chemical castration statutes have procedural safeguards in place to protect the offenders from abuse. Florida, for example, does not allow the mandatory administration of MPA injections to be carried out unless the procedural requirements of the state’s chemical castration statute have been followed exactly. If the procedure has not been strictly followed, even slightly, the court will not uphold that portion of the offender’s sentence. The courts realize that chemical castration is a serious matter and do not nonchalantly impose such treatment on individuals.
Those against the treatment may argue that it is not wholly effective. While findings so far have been impressive, there has not been any study with results showing that 100% of those who underwent the procedure did not re-offend. Therefore, some people who receive these injections will not be affected by them. However, the drug is so effective that a vast majority of people who do receive the injections will benefit from them. As one offender stated, “the only way the streets will ever be safe is to put me on a course of injections where I can be controlled and I can be switched off.” Therefore, even if certain offenders do not respond positively to the treatment, it is still a treatment that works for a majority of offenders and will save many children from the horror of sexual molestation.
In addition, a majority of jurisdictions that use MPA injections require offenders to receive the drug until it is deemed unnecessary. So if a person is wrongly convicted of an offense, it is unlikely that he will have to take the drugs for the rest of his life. A wrongly convicted individual who must undergo MPA injections as part of his parole or probation is taken out of prison: he might receive the injections for a while, but will be taken off the drug once it is realized that he does not need it. His sexual functioning will return to normal and any other side effects will reverse themselves over time. This is in direct opposition to a wrongly convicted individual who receives a life sentence or the death penalty. In most jurisdictions that administer MPA injections, the wrongly convicted child molester gets out of prison and undergoes injections that he will be taken off of eventually.
Chemical castration is not a disproportionate punishment for the crime of raping or molesting a child. This treatment is nowhere near as harsh as putting a person to death for the rape of a child or even requiring a person to undergo physical castration. In fact, administering weekly injections that reduce a person’s sex drive is more humane than a number of other treatments that have been utilized. Additionally, one of the main reasons the Supreme Court held that the death penalty was an excessive punishment for the rape of a child was because the crime did not involve the taking of a life. The only thing chemical castration takes from the offender is his sexual desire. Therefore, it is a perfectly proportionate penalty as it is this overwhelming desire that causes the offender to sexually attack innocent children. Chemical castration is a serious penalty, but not a disproportionate one.
Chemical castration is the answer to the question of what to do with child molesters and pedophiles. It is unconstitutional to execute such individuals and it is incredibly expensive to keep them imprisoned or involuntarily committed for the rest of their lives. There is a very high risk that such an offender will end up back in prison, and many treatments that have already been attempted do not have high enough success rates. In Trop v. Dulles, the Supreme Court declared that the law must “draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” In today’s maturing society, legislation and failed treatments have led us to chemical castration. Therefore, chemical castration is, in fact, the answer. This treatment is what the “standards of decency,” from which the law is to draw its meaning, have evolved into regarding the treatment of child molesters and pedophiles. These crimes are reprehensible, but in today’s society it is necessary to turn to such treatment in order to actually solve the problem rather than simply dispose of the offenders.
B. The Fourteenth Amendment’s Right to Privacy
The Due Process Clause of the Fourteenth Amendment guarantees that no state shall “deprive any person of life, liberty or property without due process of law.” In addition, the Supreme Court has interpreted the Fourteenth Amendment’s liberty interests to include an individual’s right to privacy. This makes it slightly problematic to sentence individuals to undergo chemical castration. The procedure infringes on their fundamental right to have a child, as well as the right to refuse medical treatment, both of which are protected under the Fourteenth Amendment’s right to privacy. However, making chemical castration a mandatory condition of probation or parole does not unconstitutionally burden the rights of the offender. The state has a legitimate interest in the safety of its children and chemical castration is the least restrictive way to advance such an interest. Therefore, while a convicted child molester’s constitutional rights are slightly burdened in sentencing him to undergo the procedure, they are not violated.
1. The Right to Refuse Medical Treatment
The Fourteenth Amendment’s right to privacy includes the right of a competent person to refuse treatment as a liberty interest protected under the Due Process Clause. In assessing whether a regulation unconstitutionally infringes upon this right, it is necessary to balance the individual’s liberty interest against the interest of the state. For example, “if a patient cannot be confined without endangering other [s] . . . and yet he refuses medication that would curb his dangerous tendencies, this would be one factor to weigh in overriding his decision to refuse.”
In Washington v. Harper, the Supreme Court officially declared that the right to refuse medical treatment is a liberty interest protected under the right to privacy through the Due Process Clause of the Fourteenth Amendment. While it is not a fundamental right that can only be burdened by a compelling state interest, the Court held in Harper that a higher standard than rational basis review should be implemented. The Supreme Court declared here that in determining if an incarcerated individual could be forcibly medicated, it is necessary that such regulations be “reasonably related to the penological interests.” If the offender is fully competent, then the Fourteenth Amendment gives the offender the right to refuse the MPA injections. Incidentally, while incarcerated, a child molester does not pose a threat to those around him or himself. It is only once he is back in society and living in the community that he represents a threat to others. It is upon the offender’s release that he poses a very serious threat to the community. In this case, the State’s interest in protecting children from sexual attacks justifies the mandatory imposition of the treatment for these offenders and there is no doubt that such a treatment is rationally related to the “penological interest.”
2. The Right to Have a Child
In Skinner v. Oklahoma, the Supreme Court first recognized that everyone has the right to have children. The court stated that procreation is “one of the most basic civil rights of man” which is “fundamental to the very existence and survival of the race.” Years later in Griswold v. Connecticut, the Court declared that there is a right to privacy for married individuals that is protected under the Fourteenth Amendment. This decision invalidated a state law that illegalized contraceptives as it overly invaded the privacy rights of married couples and infringed upon their fundamental right to decide whether or not to have a child. This right to privacy was extended to all individuals in Eisenstadt v. Baird. In Eisenstadt, the Court ruled that a state law which allowed the distribution of contraceptives to married couples to prevent pregnancy, but not to unmarried individuals for the same reason, violated the Equal Protection Clause of the Fourteenth Amendment. The Court stated that a married couple is not an entity on its own, but is merely “an association of two individuals.” The Court went on to state that “if the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”
This right to privacy was again extended in 1973 in Roe v. Wade. In Roe, the Court ruled that the fundamental right to privacy was “broad enough to encompass a woman’s decision whether or not to terminate her pregnancy.” While a woman’s fundamental right to privacy included the right to choose, the state could constrain this right as long as it had a compelling state interest allowing the constraint to survive a strict scrutiny standard of review. The Court held that a woman was not entitled to terminate her pregnancy at any time or for whatever reason she wished. At some point the state’s interest in the protection of fetal life may “become dominant.” The state’s interest reaches a compelling level when it is protecting the unborn child at the stage of viability where the fetus is capable of surviving outside of the mother’s womb. Here the Court gave the states a way to try to implement regulations on a woman’s constitutionally protected right to an abortion.
Decades later, the Court used the same reasoning in Gonzales v. Carhart in upholding Congress’ 2003 ban on partial birth abortion as constitutional. This decision effectively banned women from having abortions in the third trimester of their pregnancy. In ruling on Carhart, the Court heavily considered the health and life of the unborn child. In implementing the ban, Congress found partial birth abortion to be a “gruesome and inhumane procedure that is never medically necessary and should be prohibited.” The Court found that this type of a procedure had the “power to devalue human life” and requires specific regulations due to the moral and ethical concerns that justify such additional provisions. The Court supported Congress’ creation of a bright line rule to distinguish abortion from infanticide as it found the two become very similar as the pregnancy goes farther along. So while a woman still has a constitutionally protected right to an abortion, her rights are sometimes outweighed by the life of the unborn child. In dealing with such late term abortions, this decision was not about the individual bodily autonomy of the mother or her right to decide whether or not to bear children. This decision was, in large part, about the life of the unborn child.
The rationale in Carhart is analogous to the justification for administering MPA injections to convicted child molesters and pedophiles. In dealing with the treatment of child sexual predators, we are not so concerned with the rights or bodily autonomy of the offender. While the offender’s rights and needs must be considered, the main point of treating these offenders is to end the sexual victimization of children. Therefore, the administration of the treatment is very much for the child’s safety. A woman has the right to have an abortion in the earlier stages of her pregnancy. Once she enters into the last few months of her pregnancy, the state has stripped her of her right to choose whether or not to have a child. It is at that moment when the child’s life becomes dominant over her right to choose. Similarly, the child predator has the right to fantasize and entertain thoughts about children. It is not until he has actually acted on his thoughts and desires and attacks a child that he would be made to undergo treatment. It is at that moment of conviction when he has crossed the line and the state may alter his rights because the life, sexual safety, and bodily autonomy of a child dominate over his right to privacy.
One might argue that administering MPA injections to these offenders would have to meet a higher standard than any restrictions imposed on a woman’s right to choose. In Planned Parenthood v. Casey the Supreme Court ruled that a woman’s right to an abortion is a liberty interest, but not a fundamental right. Therefore, instead of a compelling state interest as required when a fundamental right is in jeopardy, the regulation must simply be rationally related to a legitimate state interest and refrain from placing obstacles in a woman’s path to obtaining an abortion. In contrast, laws requiring convicted sex offenders to undergo chemical castration would have to pass the higher standard of strict scrutiny review. In order for a regulation to pass strict scrutiny standards, it must be supported by a compelling state interest and it must be the least restrictive measure possible to achieve this goal. Children who go through the horror of molestation often suffer later in life because of for the difficulties in coping with such a traumatic experience. Keeping children safe from sexual predators is an unquestionably high priority, as evidenced by legislation within the last several decades. There is no question that protecting children from sexual predators is a compelling state interest.
In addition, there is almost no question that administering injections of MPA is the least restrictive measure available to advance the states’ interest of protecting children. MPA does not necessarily strip an individual of his right to decide whether or not to have a child. It simply diminishes the offender’s sexual desire. If it is determined that the offender can cease treatment, then his testosterone levels will return and the physical effects will reverse. In addition, while it is more difficult, it is still possible for a person undergoing MPA treatments to have erections and even ejaculate with the help of a partner. It is also possible to adjust the dosage, if necessary, to avoid total impotence and combat unpleasant side effects. Even if the offender is unable to do these things, he can have sperm samples frozen so that he may still have a child. Just because offenders undergoing MPA treatments experience low testosterone levels and a sense of “erotic apathy” does not mean that they no longer have the ability or option to bear children.
Additionally, MPA injections actually allow offenders to be released from incarceration and even become fully functioning members of society. One offender undergoing MPA injections stated that he no longer had “that major sex urge within” him. He is now trying to take part in more things because he has “more hope” that he is not going to “get into . . . trouble.” When comparing MPA injections to all other implemented or experimented treatments used on offenders, chemical castration is clearly the least restrictive means to achieve the compelling state interest of protecting children from sexual attack. Therefore, regulations which require convicted child molesters and pedophiles to undergo chemical castration do not violate the Fourteenth Amendment.
In sum, chemical castration is the nation’s next step in dealing with pedophilia and child molestation through punitive and rehabilitative measures. The procedure is, no doubt, a deterrent for some and an immensely therapeutic process for others in learning to control and cope with their deviant sexual desires. Recent legislation evidences the nation’s fear of sexual predators, especially those who pursue children. Incarceration and other forms of treatment have done little to actually solve the problem. Those that were most effective went too far, whereas other therapies were often ineffective and borderline barbaric. Chemical castration, on the other hand, is effective, safe, and humane.
Chemical castration is also incredibly cost effective. The cost of the treatment is miniscule when compared to the expense of incarceration or involuntarily commitment in a state hospital. Lastly, and most important, chemical castration is constitutional. It is not an overly excessive punishment for the offense charged, especially in comparison with other punishments and treatments that have been utilized for such offenders. It does not violate the right to have a child or the right to refuse treatment due to the compelling interests of the state and the nature of the drug. Chemical castration is the treatment to which we have been led after decades of recidivism and failed treatment for child molesters and pedophiles. This drug can give offenders a second chance at life, and give children less to be afraid of in the world.