© Edwin Ng 2001
One might well start with the question of what exactly is chemical castration? Unlike conventional physical castration, where part of, or the entire sexual organ of a person is removed, or surgical castration; where the reproductive function of the sexual organ of the person is incapacitated through surgery, chemical castration involves the application of a chemical into the bloodstream of the person which suppresses the persons desire for sex.
It is interesting to note that chemical castration laws still do not apply to female sexual offenders even though there is evidence of crimes of such a nature.
In the States ( e.g. California) where chemical castration is legitimised as a form of punishment, the offender on which the punishment is imposed must not only have committed a crime that is sexual in nature but must have committed it repeatedly, a minimum of two times. The offence must have been against a minor and the offender must be suitably incarcerated for a period of time before being released on parole, during which time the chemical castration is imposed.
Under utilitarian considerations, which states that any action, including punishment, which produces the greatest amount of overall happiness or welfare, should be the only course of action to be undertaken. For the utilitarian, punishment serves a threefold purpose: One, it serves as a deterrent effect on the general population. Two, it has a reformative effect on the offender. Three, it prevents the offender from doing further harm to society.
Lets us consider the first proposition. While the idea of chemical castration may deter many a potential rapist, in actual fact this may not be true. According to C. L. Ten, there is little evidence to suggest that punishment has a general deterrent effect. Moreover, Californias forcible rape statistics actually rose from 4.0 per cent of total crime committed in 1997 when the punishment was first institutionalised, to 4.3 per cent in 1998. (Criminal Justice Statistics Centre - www.cag.state.ca.us/cjsc). However, it would seem to serve its individual deterrent by making it difficult for the penalised offender to have sexual urges towards another child because of his own unpleasant experiences with the law and the humiliation of chemical castration. There is some evidence of individual deterrent effect as cited in C. L. Tens Crime and Punishment where a case in which some shoplifters who were apprehended and interrogated refrained from committing the same crime again. Again however, it only works in certain fields. Moreover, in the case of our chemically castrated sinners, they simply rape their victims with knives and baseball bats and the sort
Two, punishment has a reformative effect. Taking into consideration that the prisoners have been imprisoned before the application of the castration, it would seem that any reformative effect that the punishment has on the offender would have made itself felt during the imprisonment. Therefore if the offender has already been reformed by the incarceration itself, chemical castration would be superfluous. However, if the period of detention serves no such purpose, how possible is it for the castration to do the same? Serious deliberations must be given to the fact that the chemical castration is administered to the offender while under parole, and that includes the restrictions that usually accompany the sexual offender under parole; not to loiter around schools, parks and playgrounds etc. There are grave doubts as to whether the offender is truly reformed since he will have no sexual urges to speak of to tempt him. The bigger question is whether or not the offender will be able to control himself since he will experience the sexual urges that he lost while under parole. Now that his suppressed sexual urges are allowed to surface, whos to say that he will not revert back to his deviant ways?
However, the important issue is whether these criminals are sexually motivated to carry out their attacks on minors. According to Dr Wong Yip Chong, Senior Consultant Psychiatrist and Medical Director of Adam Road Hospital, rape is a result of the offenders need to assert dominance (The New Paper, 10 Mar 2000, Kill rapists sex drive with chemicals?) and not necessarily a consequence of an overwhelming sex drive. According to him, repeat offenders may have the urge to commit the act (of sexual aggression) over and over again because they have come to enjoy the act of aggression in a way that is personal to them. (Chemical) [c]astration would therefore, only be effective with counselling and psychotherapy. This view is also echoed by Professor Li Man Kay, President of the Singapore Urology Society, [t]hey need psychotherapy or re-education as anti-testosterone drugs alone cannot prevent them from committing more offences. (The New Paper, 10 Mar 2000, Kill rapists sex drive with chemicals?). Therefore, the issue here is muddy where chemical castration is supposed to help the offender reform himself when act of sexual assault itself has nothing to do with the criminals sexual desires.
Thirdly, does chemical castration have an incapacitative effect on the offender? This would seem to be so if the reason behind the offence was a sexual one. However, if the offender does not have a sexual motive behind his act then chemical castration would serve no such purpose after all. In fact, he may very assault another child in a sexual manner without feeling any such desire for the child, for personal satisfaction or perhaps some sadistic inclination.
Finally utilitarianism has been criticised for legitimising the punishment of the innocent. If this is true, then chemically castrating the innocent when the situation so allows for the fact that this course of action would definitely produce the best overall welfare would be justifiable.
The retributivist gives moral reasons for the punishment of a crime. The reasons, according to C. L. Ten vary in scope, in kind, in their own strength and in the accounts of how punishment should fit the crime. I have included the different discussions of the theories by C. L. Ten (in Crime and Punishment) below and applied them to chemical castration.
Various retributive theories include the theory that punishment annuls crime. However the fact that the harm to the victim has already been done, in no way does it seem that chemically castrating the offender would somehow reverse the fact. Unless of course that theory is expanded to include the fact that the world is once again restored to its original state after the castration. This is very hard theory to subscribe to since the victim of the sexual offender is very unlikely to forget her ordeal, and it is just as improbable that her various emotional and psychological make-up will return to its former innocence before the attack. Granted that the victim constitutes part of the world, this part of the theory would undoubtedly fail in its attempt to justify chemical castration.
Nozicks justification for punishment allows the offender to connect with the right values. In his nonteleogical view, the offender would not be as pleased as he was if he had not been punished Apply his theory to chemical castration and a problem arises. The castrated criminal may well be very displeased with the fact that he has lost his sexual function, however the punishment serves no evident benefit either to him or to the public in general. In fact, if he were to be connected with right values, a very strong reprimand would have sufficed, why the need for castration? He is not reformed; he may only remain less pleased - and unconvinced that his action is wrong.
Contemporary retributivists also claim that the offender deserves his punishment. Kleinig suggests that intuitively, wrongdoers deserve to suffer. However, this may not stand in the light of the fact that punishment cannot be justified if it does not produce any good consequences. Moreover, the State has no right to deprive an individual of his sexual urges when this could possibly cause a great deal of harm to the persons dignity. Two wrongs do not make a right even where a minor is concerned.
The view that chemically castrating the offender corrects the unjust distribution of happiness and suffering cannot stand. We would have to take into account the entire span of the offenders and victims life and come to a conclusion on the amount of happiness and suffering that each has. That would take too much resources and be potentially intrusive.
Equality of treatment among wrongdoers. If other lesser crimes have been punished by the State, why not sexual assaults on minors? However, this consideration does not support chemical castration as the sole means of punishment and is dependent on other grounds such as how the punishment of lesser crimes are determined in the first place.
Chemically castrating the offender would give satisfaction to the victim and the public. This part of retributism sounds suspiciously like utilitarianism or the desert theory, which have already been discussed.
Finally, chemical castration is justified because it removes the unfair benefits forcibly taken by the criminal and restores the just equilibrium of benefits and burdens upset by the criminals act. The assumption that the criminal has taken unfair advantage of a system where everybody else plays by the rules of self-restraint and he does not is dubious as society principally abides by the rules because of the fear of punishment and not because they have voluntarily taken up the burden of self-restraint.
Therefore, utilitarian and retributivist theories do not justify chemical castration. Perhaps the Revised Combined Theory which states that punishing a person is justified if and only if (a) he is an offender who has voluntarily violated a legitimate law, or an innocent person whose punishment will inflict much less suffering on him than the suffering that at least one other innocent person would have experienced as an additional victim of crime had there been no punishment; and (b) punishing him does not have serious adverse effects on others, and punishing those who have voluntarily committed similar or lesser offences is justified on utilitarian grounds.
This apparently all encompassing theory does not seem to answer why chemical castration should be the answer to sexual offences against minors. In fact, the Revised Combined Theory does not state whether one or another form of punishment would apply in an infinite number of different circumstances. This is important as we live in a morally plural society where one form of punishment would not work against another type of crime. It also does not address the extent of punishment that should meted out to an individual. While it would be unthinkable for us to remove the appendages of a shoplifter, it would be completely acceptable in a state like Teheran.
Chemical castration is absolutely justifiable in a case where the criminal is driven by his sexual desires to attack his victim. Otherwise it would serve neither the utilitarian, retributivist nor the Revised Combined Theory.