-By Rajashri Seal
Recently, a post on the blog argued in favour of chemical castration laws by hailing chemical castration as an effective and constitutionally sound measure against curbing rape, especially when such procedure is carried out with the consent of the sex offender. In the recent past, there has been a clamour for bringing in chemical castration laws, especially in the aftermath of the gruesome Hyderabad rape case. This post attempts to unpack the (mistaken) assumptions that underlie such oft-repeated arguments and argues that chemical castration normatively should not and practically cannot be a policy solution for curbing rape. It advances three arguments to highlight why using chemical castration for sex offenders might actually be counterproductive, by using a feminist lens. First, it argues that such laws fail to consider the power dynamics present in any sexual crime. Second, it shows how such laws undermine the bodily autonomy and privacy of the sex offender concerned by conflating ‘treatment’ with ‘punishment’. Third, it highlights how such laws embody the medicalisation of social control and why such an approach is problematic.
Understanding Rape as Power
Using castration as a response to curb rapes is fallacious as it wrongly assumes that rapes occur because men cannot control their extreme sexual urges. As feminist scholars like Catharine Mackinnon have repeatedly argued, rape is not just about sex but also about power. Characterising rape only as a crime of sex is misleading because it deliberately overlooks the aggression and humiliation which are central to rape and which are routinely sustained by patriarchal forces. Understanding the violence, aggression and power dynamics implicit in rape is important to appreciate that often sex is only a means to further these ends. Often, rape is not about sex at all, but about reinforcing patriarchal hegemony and showing women “their place”. This can be seen in instances where Dalit women are raped to assert caste supremacy and reinforce hierarchical norms. To focus then only on the sex is myopic because it privileges a biological motivation for rape while also simultaneously obscuring the social structures that enable rape. This makes it easier to characterise rape as an isolated ‘individual’ problem which needs treatment rather than a cultural problem which needs greater introspection and engagement.
There is another problem with using the “men cannot control their sexual urges” trope. This trope presents a strange duality to suggest that men who commit sexual crimes are on one hand, like vicious predators who have no conscience or morality and hence, will not stop such deviant behaviour until they are forcibly stopped. On the other hand, in the case of pedophilia, for instance, they are also often described as victims suffering from a compulsive sexual disorder wherein they simply cannot control their urges. Thus, even if they want to stop sexually abusing children, they simply cannot do so, as they cannot overcome their sexual fantasies and temptations. Often, these two seemingly divergent views are presented together to reinforce the perception of the ‘dangerousness’ of sex offenders in the popular imagination. Thus, while evil people may be punished for their deviance and sick people may be treated for their illness, sex offenders create a unique third category where they seem to embody a “perfect storm of illness and evil” that lies beyond the reach of conventional modes of punishment or treatment. Thus, chemical castration provides an intuitive appeal because it promises to simultaneously treat and punish sex offenders; by ridding them of their sexual compulsion while also being simultaneously retributive.
However, this approach is problematic. Firstly, it fails to consider that often even people who are subjected to chemical castration may commit sexual crimes again. Since chemical castration involves injecting hormones into the body to reduce sexual urges by lowering testosterone levels and has a temporary character, the sexual urges may resurface once the treatment is stopped. Thus, even while lowering recidivism rates, chemical castration does not prevent or stop reoffending altogether. Research suggests that chemical castration works best only for certain categories of sex offenders (for instance, paraphiliac persons as opposed to all categories of sex offenders) and may be effective, only when coupled with appropriate psychiatric diagnosis and therapy. Thus, without robust systems in place that can provide such therapy to sex offenders and actually create conditions for their betterment, it is facetious to suggest that chemical castration be used as a panacea for all sexual offenders. Secondly, it is important to note that not everyone who commits a sexual crime does so because of some compulsive sexual disorder. There may be many underlying causes behind their actions, including but not limited to, alcoholism, drug use, personality disorders like antisocial personality disorder, and so on, which may or may not have a nexus with the sexual disorder(s). Some of them may also rape because they are sexually aroused by the power they feel over their helpless victims. Thus, to use chemical castration as a catchall solution for all sexual offenders irrespective of their underlying motivations, by wrongly assuming that all of them suffer from some kind of sexual disorder, is a hasty response to nuanced issues, which require deeper deliberation.
Chemical Castration as being violative of the constitutional rights of the sex offender
In jurisdictions where chemical castration laws exist, chemical castration is usually presented as a condition for parole, probation, or reduced prison time and in India, it was suggested as an alternative to incarceration. However, there are problems associated with this approach.
The Right to Autonomy and Privacy
Firstly, chemical castration constitutes a violation of bodily and mental autonomy of the accused person. It does not simply diminish a person’s procreative rights; rather, it destroys the person’s very capacity to enjoy them. As far as bodily autonomy is concerned, chemical castration eliminates the offender’s capacity to enjoy his fundamental rights associated with sexuality for as long as the treatment lasts. Thus, even at a bare minimum, his procreative rights are violated for the entire duration of the treatment. Furthermore, chemical castration also produces many long-term effects like reduced bone density, depression, anemia, and so on. However, as opposed to this, incarceration does not contain any such adverse health risks. As Stinneford argues, since chemical castration impairs an accused person’s ability to think and perceive sexually; in effect, it goes far beyond mere infringement of sexual rights and is tantamount to “assaultive destruction or maiming”. Since it affects a person’s ability to generate sexual thoughts, in essence, it interferes with his ability to think in a particular manner by mentally conditioning him and thereby impacts his self-determination, all of which are essential to his constitutionally guaranteed fundamental rights.
Secondly, it directly impinges upon the privacy of the sex offender. The Supreme Court in Puttaswamy had held that the right to privacy encompasses the right to procreative freedom, which includes the right to contraception. It could also be argued that the right to refuse chemical castration would also be squarely covered within the right to privacy as it pertains to the accused person’s ability to decide for himself whether or not he would like to subject himself to the risks of the treatment. In fact, while Justice Chelameswar made an explicit reference to ‘decisional autonomy’ which would include among other things, intimate decisions such as the ability to refuse contraception, other Judges too made references to the centrality of ‘choice’ in protecting and furthering an individual’s autonomy. However, this right is not absolute. As per the plurality opinion authored by Justice Chandrachud, any interference with the right to privacy must meet the three-fold test of legality, which postulates the existence of a law; the need for the restriction defined in terms of a legitimate state aim, and proportionality wherein the means which are adopted are proportional to the object and needs which the law seeks to fulfill. JusticeKaul elaborated upon the proportionality standard by saying that the extent of interference upon the right to privacy must be proportionate to the need for such interference. Thus, this essentially means two things. First, that the State must demonstrate that there is a very clear necessity for the proposed law in a democratic setup and second, that such law infringes rights only minimally.
In the present case, while the ‘legality’ prong of the test can be satisfied if the State brings in a law mandating chemical castration or amends the existing law to provide for chemical castration and the necessity prong can be satisfied by stating that crime prevention constitutes a legitimate aim for the State, it is the proportionality prong where the State must affirmatively discharge its burden in case of a privacy infringement claim. As stated above, the State must show that chemical castration is the only way in which rapes can be prevented. However, this cannot be true since even if the best-case scenario is considered, what chemical castration does is merely reduce or eliminate feelings of sexual arousal. It does nothing to address or eliminate the deep-rooted violence which motivates sexual crimes. There have been cases, at least in the American context, wherein men who have undergone chemical castration while in prison, have gone on to commit sexual crimes even after being released. Thus, to wholly achieve the objective of crime prevention and public safety, sex offenders may have to continue undertaking the treatment indefinitely; an outcome which cannot be said to be constitutional as it would constitute violations of a disproportionate magnitude.
As Vanderzyl argues, perhaps incarceration does a better job at protecting society than chemical castration, as it removes the sex offender from society. As opposed to this, quite counter-intuitively, “chemical castration allows the offender greater access to potential victims without eliminating the hostility and rage causing the violent conduct.” Thus, it could be argued that if the goal of the criminal justice system is rehabilitation, then psychotherapy is a less infringing alternative. Similarly, if the goal is maintaining public safety, then incarceration could be another alternative. In either case, resorting to chemical castration without exploring alternative solutions and addressing their shortcomings (if any) would be counter-productive: it would provide a false sense of security, while simultaneously depriving the offender of his rights and doing nothing to address the underlying causes of rape.
Does ‘Consent’ of the Sex Offender Validate Chemical Castration?
Often, it is argued that by virtue of having committed the crime, a sex offender would lose both the moral as well as the legal capacity to object to any such treatment. However, this idea has been rejected by the Supreme Court which has categorically held that merely because a person is imprisoned does not mean that he loses all of his fundamental rights. In fact, the Court recognised that since a prisoner’s liberty is circumscribed by the very fact of his confinement, his interest in the residual liberty is all the more substantial to him. Thus, if a sex offender is subjected to unreasonable restrictions or interferences that frustrate his ability to engage in rehabilitation, then the Courts can always intervene. To argue that such restriction becomes valid if done with the ‘consent’ of the accused is misplaced because such an argument ignores the very coercive nature of the underlying choice. If an offender is presented with a choice between undergoing a chemical castration and an extended prison sentence on the other, the very restrictive nature of such choice renders consent meaningless. This is because, as William Green argues, the offender’s lack of liberty is of such an enormous magnitude that “he cannot choose freely and voluntarily, but he is forced to give consent to an alternative he would not otherwise have chosen.”
Some might also argue that since the crimes committed by the offender warrant severe punishment, the treatment proposed to be given to him should also be proportionally severe. In other words, if the sex offender has been sentenced to a long term of imprisonment, then he deserves a more intrusive form of treatment in the nature of chemical castration for instance, and vice-versa. However, what this approach does is that it allows desert-conditions to determine which forms of treatments could justifiably be offered to sex offenders. The problem with this approach is that it justifies chemical castration itself as a form of punishment. To draw from Lene Bomann-Larsen’s work on offering neurological treatment to correct behavioural problems in prisoners, she argues that allowing desert-considerations to determine treatment could lead to a scenario where one could say that for murder, the proper ‘punishment’ should be a full lobotomy; for rape, it should be chemical castration and so on. However, going down this path will completely detract from the rehabilitative goal of the penal system which offers the offender a chance to reflect on his behaviour and course-correct if necessary; something which the Court has repeatedly stressed on. Moreover, if chemical castration is considered to be a punishment, then it eliminates the need for any consent at all, in order to be justified. This is because any form of punishment presupposes tacit consent. By breaking the law, the offender willingly gives up certain rights and in relation to the commission of the crime, tacitly consents to the imprisonment. The courts need not ask for his actual consent to levy the sentence. Thus, there is an inherent fallacy in the positions of those who seek to justify chemical castration as a form for consensual ‘treatment’ for violent or child sex offenders, for their own betterment. On one hand, punishment does not need any actual consent in order to be justified; thus chemical castration should be offered as a form of treatment. On the other hand, desert conditions should be irrelevant to ‘voluntary’ treatment, if the end goal of the penal system is rehabilitation. Hence, it is always dangerous to conflate treatment with punishment. Instead, there should be a problem-solution match by finding out the correct fit between the violent behaviour underlying the sex crime (which may include even societal considerations) and a way to inhibit such behaviour through appropriate, narrowly tailored means.
Medicalisation of social control
Lastly, advocating for chemical castration as a means to prevent rape also underscores a deeper problem: the medicalisation of social control. Peter Conrad who had coined the phrase suggests that what this phrase essentially embodies is the problem of expert control and the individualisation of social problems. When using a medical solution to address criminal problems like sex crimes, advocates of chemical castration actually give medical professionals the authority to decide and judge appropriate behaviour, at the expense of their own authority. Thus, they allow for greater State and societal intrusion into their lives, based upon medical knowledge. This also makes it seem like the sex offenders are isolated individuals, which is strange because often it is the family members and the acquaintances of victims who sexually abuse them. Thus, the medicalisation of sexual crimes takes focus away from the larger rape culture that facilitates and condones such behaviour along a continuum.
This paper argued that chemical castration cannot be considered as an effective policy solution to prevent rapes. Firstly, using chemical castration to ‘treat’ sex offenders stereotypes them as being both evil and sick and makes it appear as an isolated individual problem while taking focus away from the larger rape culture that pervades in society. Secondly, such an approach impinges upon the constitutionally guaranteed rights of autonomy and privacy of the sex offenders and by equating ‘treatment’ with ‘punishment’, they detract from the rehabilitative goal of the penal system. It also argued that consent does not justify such treatment due to the inherently coercive nature of such consent. Lastly, it argued that allowing chemical castration would essentially privilege medical control of individual behaviour over a societal understanding of the same; thereby masking the underlying social factors that sustain rape culture.
[The author is a fifth year B.A. L.L.B(Hons.) Student at National Law School of India University.]