"SURGICAL CASTRATION AS PUNISHMENT: EVALUATING ITS CONFORMITY THROUGH HUMAN RIGHTS LENSE"

 

AUTHORED BY – RISHABH,

KM. SRISHTI BHARDWAJ & DEVIKA SINGH

 

 

Abstract:

The recent enactment of law in Louisiana, state in Deep south- and south-central regions of the United States allowed surgical castration as punishment for minor child rapists has sparked debates within the international legal community. Scholars argue that such measures serve as deterrents against future crimes, aligning with utilitarian principles. However, human rights groups have voiced concerns regarding the ethical implications and potential violations of Human rights.

 

This article delves into the multifaceted issues surrounding surgical castration from both legal and ethical standpoints. It traces the historical origins of castration practices and examines the contemporary context of its application as a punitive measure. Through analysis of international human rights instruments such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the article highlights the tension between punishment and the protection of individual rights.

 

Central to the discussion is the ethical dilemma surrounding the consent of offenders to undergo surgical castration. While proponents argue that such consent is voluntary, closer scrutiny reveals the coercive nature of the circumstances, as offenders may perceive castration as a means to avoid lifelong imprisonment. Drawing upon legal precedents and ethical principles, the article questions the justifiability of allowing individuals to consent to self-mutilation as an alternative of imprisonment.

 

Moreover, the article critically assesses the efficacy of surgical castration as a deterrent and its ability to address the underlying causes of sexual offenses. By examining case studies and expert opinions, it underscores the complexity of sexual behaviour and the limitations of castration as a solution.

 

In conclusion, the article presents a nuanced exploration of the legal and ethical dimensions of surgical castration, emphasizing the need for a holistic approach to addressing sexual offenses that prioritizes rehabilitation and respect for human dignity.

 

Introduction

The republic government of Louisiana become the first state to implement surgical castration as the mode of punishment in certain sex crimes committed against minors. The law will go into effect on 01 August 2024. Along with Louisiana several other countries and states allow surgical castration as the mode of punishment like Czech Republic, Madagascar and state in Nigeria. The main target of the law is to punish the offenders guilty of aggravated sex crimes, including rape, incest or molestation committed against the children below the age of 13. The punishment will be awarded on the discretion of the Judge but at the same time, government advocated for the law by developing deterrence in the mind of potential offender by imposing such punishment.[1] As being advocated by the utilitarians and consequentialists, the deterrent theory of punishment focuses on creating deterrence in the mind of criminals (stop them from committing further crime) and in general public also.[2]  The step by the government has been criticized by the various human rights group and put up several issues regarding the same. In this article the researcher tries to find out how human rights are affected by this move of the government, what are the types and consequences of castration, castration as an alternative of imprisonment, and finally the legal and ethical issues involved in the consent of offender.

 

 

Chemical and surgical castration

The concept of the castration can be traced back to 4000 year ago from Egyptian mythology to 21st century in Madagascar.[3] From time to time the purpose of castration has been varied as per the needs like the royal guards, choir singers etc. has undergone castration to increase their efficiency whereas in the present era it is proposed to be used as a method of punishment for the culprit of minor rapist.[4] The word “castration” originated from from the Latin word "castrare," which means "to cut off." Usually, this practice was performed before attaining puberty which led to underdevelopment of sex organ which prevent sexual desires and behaviour, castration can also be performed after attaining the puberty which leads in the same consequences.[5] Castration is practiced in two ways i.e. chemical castration and surgical castration. Chemical castration is performed by using drugs which significantly lead to lowering the testosterone level, which prevents sexual desires,[6]  whereas the surgical castration performed by specialist by removal of genitalia (i.e. male sexual organ)[7]

 

Human Right perspective on surgical castration Punishment

Internationally there are various declaration, covenant, treaties etc. for the recognition and the protection of the human rights irrespective of their origin. Universal Declaration of Human Rights, spells out the basic rights that all human beings should avail. More explicitly, Article 5 of UDHR states,

“no one shall be subjected to torture or to cruel, inhumane or degrading treatment or punishment”[8]

From the article above a debate arises regarding the validity of surgical castration with respect to human rights. Likewise, International covenant on civil and political rights secures to members of human family “the inherent dignity, freedom, justice and peace in the world” more specifically Article 7 of ICCPR states

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.”[9]

From the provision mentioned hereinbefore, it is clear that being a human, one has fundamental rights which can’t be waived or overlooked in awarding punishment. Surgical castration overlooks the autonomy of an individual, as it impacts physically as well as psychologically which have lifelong effect on the individual leaving no option of reformation before the perpetrator. Though this practice deters the child sex offender and protect the society from such crimes, there has been cruel, inhumane and derogatory treatment of an individual.

 

Additionally, having regard to Article 5 of UDHR and Article 7 of ICCPR, “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” was adopted in, 1984[10] and Article 1 of convention states the definition of torture as-

“For the purpose of this Declaration, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.” In addition to it, it also states “Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.”  in furtherance Article 2 of convention put an obligation on state to make legislation to eradicate torture also, Article 3 specifically mentions that “exceptional circumstances like such as a state of war or a threat of war, internal political instability or any other public emergency may not be invoked as a justification of torture or other cruel, inhuman or degrading treatment or punishment”

surgical castration doesn’t qualify to be as a mode of punishment as firstly, as it will constitute “Torture” against offender as per the definition mention above as, the punishment is awarded to “punishing him for an act he has committed or is suspected of having committed”. Even if the punishment is sanction by law, it cannot involve torture or cruel, inhumane, or degrading treatment or punishment. The declaration prohibits any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for various purposes, including obtaining information, punishing for an act committed or suspected, or intimidating or coercing individuals.

Secondly, though there is a rise in sexual abuse cases, and to create deterrence in the mind of offender (as well as potential offenders), in shadow of these exceptional circumstances punishment of surgical castration is inflicted, but these doesn’t meet the standards laid under Article 3 of the declaration as public emergency cannot be the basis of justification for torture or other cruel, inhuman or degrading treatment or punishment. 

 

Michelle Bachelet Jeria, former United Nations High Commissioner for Human Rights, clearly stated in her interview that, death penalty leads to violation of human rights likewise the punishment of surgical castration violates the international human rights laws and also considered this to be a draconian punishment and would further lead to violation of human rights further advised the states to adopt victim centric approach also, to train law enforcement and judicial officers.[11]

 

Castration as an Alternative of Imprisonment

In the case of Jeffrey morse Judge made a statement that “the trading of body parts for a lesser sentence” would set a “dangerous Precedent”, Jeffrey morse confessed his guilt of sexual assault of a 9-year-old girl and involvement in similar offences months earlier. He undergone the surgical castration, on January 20, 1998 in order to get an alternative of incarceration but he was sentenced 26 years in prison by the judge.[12] The decision of the judge was ethically, morally and legally justified as, in what type of criminal justice system the offender has a right to choose his own punishment. Furthermore, in the case four expert witnesses stated that surgical castration will reduce the recidivism rate in Morse but the state witness stated that there is high probability of occurrence similar sexual offences, also Michael bailey[13] and Aaron S. Green berg[14] stated that “we expect that there will be few failures but failures there will be”[15],  hence it means that surgical castration isn’t a reliable method to control the sexual appetite of the offender and there are chances reoccurrence of the such offence. Sexual offences are not just limited to insertion of the sex organs they imply more than that, behavior of sexual offender results from the psychical component and hormonal influence though by castration hormonal influence can be controlled but the psychical component would be there to regulate the sexual appetite, which will lead to reversion of the sexual acts in the offender.

 

Steven Allen Butler,[16] charged for assaulting 13-year-old girl, while he was on probation on an indecency conviction of a girl child. He demanded to undergo surgical castration rather than facing life imprisonment, initially Judge Michael McSpadden grant the permission, but Doctors and lawyers opposed the castration as “Not the answer” to the problem. Cassandra Thomas[17], rightly said "It sounds good. It makes you feel good, but in the long haul it doesn't deal in any way with the basic issues of sexual assault."  Surgical castration involves the removal of genitalia, but the offender is capable of having erection[18], which means he is capable of performing sexual activities, also there are cases in which it has been seen that the offender didn’t use his sexual organ to assault the victim rather he used hands, fingers, other objects, etc. for gratifying his lust, sexual hormones are not the only factors which influence the sexual appetite in an offender there are psychological factors also. Jeffrey Morse and Steven Allen Buttler[19] case set the very foundation why surgical castration can’t be awarded as an alternative to imprisonment, as if the offender is imprisoned it guarantees they are unable to reoffend, ensuring complete reliability and they can be psychologically treated. The treatment of these offenders is the only cure to this problem rather than mutilating them.

 

The “volunteered Coercion” objection to surgical castration

Advocates of castration often defend the practice by presenting several arguments, including the reduction of sexual drive, obtaining consent from the offender, and the belief that it will protect society by deterring future criminals. However, upon closer examination, the issue of obtaining consent from the offender raises significant concerns. Also, as rightly quoted by Michelle Bachelet Jeria, former United Nations High Commissioner for Human Rights that “evidence shows that the certainty of punishment, rather than its severity, deter crime”[20].

 

Firstly, the notion of consent in this context is inherently suspect. Offenders who choose to undergo surgical castration may not do so entirely voluntarily, but rather as a perceived alternative to facing lifelong imprisonment. Human nature dictates a strong inclination towards living within society rather than behind bars, leading offenders to consent to castration as a means to reintegrate into society. This decision is not entirely free from coercion, as the desire for freedom heavily influences the offender's choice.

 

Disagreeing with J. Michael Bailey & Aaron S. Greenberg's assertion that coerced actions can still be considered voluntary, it's crucial to recognize that the incentive of regaining freedom heavily coerces the offender's decision-making process. The desire to reunite with family and resume a semblance of normal life, coupled with the opportunity to potentially evade further incarceration, significantly skews the offender's perception of voluntary consent.

 

The case of Klaus Grabowski[21] from Germany serves as a stark example. Despite a history of heinous crimes against children, Grabowski consented to surgical castration as an alternative to life imprisonment. His choice, driven by the allure of freedom, underscores the questionable nature of such consent.

 

Furthermore, from a legal standpoint, the concept of consent to surgical castration may not be justifiable. India, in the case of Gian Kaur v. Union of India[22], apex court asserted that the right to life does not include the right to die, emphasizing the sanctity of life as a divine concept. Viewing surgical castration through this lens reveals its inconsistency with the divine notion of life. Allowing individuals the option to mutilate themselves contradicts the sanctity of life and raises ethical concerns.

 

Moreover, surgical castration fails to address the root causes of sexual offenses. Research suggests that offenders are often driven by rage rather than solely by sexual appetite, as evidenced by the use of objects other than genitalia in committing assaults[23]. Therefore, the effectiveness of castration in preventing future offenses remains uncertain.

 

Lastly, the question arises: if an offender, despite undergoing surgical castration, reoffends, should they still be held liable? This dilemma highlights the inadequacy of surgical castration as a foolproof method for controlling sexual impulses. Offenders may consent to castration under the belief that it will prevent further offenses, but the possibility of recurrence raises significant legal and ethical questions regarding their culpability.

 

In conclusion, the practice of obtaining consent for surgical castration raises complex ethical and legal issues. The perceived voluntariness of such consent is compromised by the coercive nature of the circumstances, while the ethical justifiability of allowing individuals to mutilate themselves contradicts fundamental principles of life and dignity. Moreover, the efficacy of castration in preventing future offenses remains uncertain, further complicating its ethical and legal implications.

 

Conclusion and Suggestions

The implementation of chemical and surgical castration as a means of punishment for sexual offenders in Madagascar has ignited a debate, particularly concerning its compatibility with human rights principles. While proponents argue for its potential deterrent effect and protection of society, opponents raise valid concerns regarding the infringement of fundamental human rights, the efficacy of castration as a deterrent, and the ethical implications of obtaining consent from offenders.

 

From a human rights perspective, surgical castration raises significant red flags, as it violates the principles outlined in international declarations and covenants, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The infliction of severe physical and psychological suffering upon individuals, even in the context of punishment, contradicts the fundamental tenets of human dignity and the prohibition of torture or cruel, inhuman, or degrading treatment.

 

Moreover, the ethical and practical shortcomings of surgical castration as an alternative to imprisonment are evident. While it may reduce testosterone levels and potentially curb sexual impulses, it fails to address the underlying psychological and behavioural factors that contribute to sexual offenses. Additionally, the issue of obtaining genuine consent from offenders is fraught with coercion, as the prospect of freedom incentivizes individuals to agree to castration as a means of escaping prolonged incarceration.

 

Given these complexities, it is vital to reconsider the use of surgical castration as a punitive measure and explore alternative approaches to addressing sexual offenses against minors. Rather than resorting to drastic measures that risk violating human rights and may prove ineffective in preventing recidivism, efforts should be directed towards comprehensive rehabilitation programs, psychological interventions, and community support networks aimed at addressing the root causes of sexual violence and facilitating the reintegration of offenders into society.

 

 

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[1] “Louisiana is now the first state to allow surgical castration for sex crimes against minors,” NPR, July 1, 2024, https://www.npr.org/2024/07/01/nx-s1-5020686/louisiana-new-surgical-castration-law#:~:text=Louisiana%20is%20now%20the%20first%20state%20to%20allow,sex%20crimes%20against%20minors%20to%20undergo%20surgical%20castration.

[2] Karim and E, “The Critical Evaluation of the Different Theories of Punishment” Jahangirnagar Review 471-489 (2020).

[3] Abraham Morgentaler and Han M Hanafy, “The Testis, Eunuchs, and Testosterone: A Historical Review Over the Ages and Around the World” 12 Sexual Medicine Reviews 199–209 (2023).

[4] O'connor, L, Z. Werner, et.al., “More than a Nick: Male Surgical Castration Throughout History” 21 The Journal of Sexual Medicine (2024).

[5] Britannica, The Editors of Encyclopaedia. "castration". Encyclopedia Britannica, 18 Oct. 2023, available at: https://www.britannica.com/topic/castration. (last visited on 23 February 2024).

[6] Hudi Winarso, Abraham Arwinta Sakti, et.al., “"Chemical Castration in Perpetrators of Sexual Violence."” 5 Jurnal Indonesia Sosial Teknologi (2024).

[7] Jean D. Wilson, Claus Roehrborn, et.al., “Long-Term Consequences of Castration in Men: Lessons from the Skoptzy and the Eunuchs of the Chinese and Ottoman Courts” 84 The Journal of Clinical Endocrinology & Metabolism 4324–4331 (1999).

[8] United Nations, Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217 (III) (Dec. 10, 1948).

[9] United Nations Office of the High Commissioner for Human Rights, International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), U.N. Doc. A/6316 (Dec. 16, 1966).

[10] United Nations Office of the High Commissioner for Human Rights, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, U.N. Doc. A/39/51 (June 26, 1987).

[11]  “Rape is wrong but death penalty, castration, not the answer: UN rights chief,” UN News, October 15, 2020.

[12]  J. Michael Bailey and Aaron S. Greenberg, “Science and Ethics of Castration: Lessons From the Morse Case,” 92 Northwestern University Law Review 1225-1246 (1998).

[13] Ph.D., Department of Psychology, Northwestern University

[14] J.D., University of Chicago, Department of Psychology, Northwestern University

[15] J. Michael Bailey and Aaron S. Greenberg, “Science and Ethics of Castration: Lessons from the Morse Case,” 92 Northwestern University Law Review 1225-1246 (1997-1998).

[16] BUTLER v. STATE. Court of Appeals of Texas, Houston (1st Dist.), No. 01-92-00822-CR, 1999

[17] President, National Coalition against sexual Assault.

[18] Douglas J. Besharov and Andrew Vachhs, “Sex Offenders - Is Castration an Acceptable Punishment,” 78 ABA Journal 42-45 (1992)

[19] BUTLER v. STATE. Court of Appeals of Texas, Houston (1st Dist.), No. 01-92-00822-CR, 1999

[20] “Rape is wrong but death penalty, castration, not the answer: UN rights chief,” UN News, October 15, 2020, https://news.un.org/en/story/2020/10/1075452.

[21] Andrea Peirano, “The Murder of Anna Bachmeier,” Odd Murders and Mysteries, available at: https://www.oddmurdersandmysteries.com/the-murder-of-anna-bachmeier/. (last visited on  24 February 2024).

[22] Smt. Gian Kaur v. The State of Punjab, 1996 SCC (2) 648.

[23] Douglas J. Besharov and Andrew Vachhs, “Sex Offenders - Is Castration an Acceptable Punishment,” 78 ABA Journal 42-45 (1992).