Castration of repeat sexual offenders: an international comparative analysis.

• Author: Russell, Stacy

TABLE OF CONTENTS

1. INTRODUCTION

   1. Castration in the United States:

      The Debate at Home

   2. Castration Abroad:

      Framing the International Debate

   3. Purpose of Analysis

2. WHY DOES THE ISSUE OF CASTRATION CONTINUALLY

   REAPPEAR?

   1. United States

   2. Scandinavian Countries

   3. Australia

   4. Canada

3. WHAT PROPOSALS ARE BEING SUGGESTED TO DEAL WITH

   THE "SEX CRIMES PROBLEM" NATIONALLY AND ABROAD?

4. THE PROCEDURE

   1. Chemical Castration

   2. Surgical Castration

5. THE HISTORY OF CASTRATION

   1. Abroad

   2. The United States

   3. Castration for "Curative Purposes"

6. THE LEGISLATION

   1. Sweden

   2. Finland

   3. Norway

   4. Czech Republic

   5. Denmark

   6. Germany

   7. Individual State Action in the United States

   1. Texas

   2. California

   3. Wisconsin

7. COMPARATIVE, ANALYSIS OF STATUTES

8. DOES SEX OFFENDER TREATMENT WORK?

9. IS CASTRATION TREATMENT WORKING IN EUROPE?

   1. Denmark

   2. Germany

10. IS THE PROCEDURE COMMON IN EUROPE?

11. ETHICAL CONSIDERATIONS 456

    1. When Should a Judge Become an M.D.

    2. Physician Involvement

12. CONCLUSION

1. INTRODUCTION

   Public policy arguments continue to rage in the United States over the use of castration as punishment--or even as treatment--for repeat male sexual offenders.(1) While some argue it should be accepted as an alternative sentencing or treatment measure,(2) others say it is an easy answer to a difficult problem.(3) Some legal scholars make the argument that castration as a conditional punitive measure is unconstitutional under the United States Constitution's Eighth Amendment bar against cruel and unusual punishment.(4)

   1. Castration in the United States: The Debate at Home

      Many states have proposed some type of legislation regarding castration for sexual offenders.(5) For example, in Texas, a voluntary castration bill for repeat sexual offenders was introduced recently.(6) Other states have introduced similar statutes which have failed to pass the state legislature and become law. In 1995, approximately sixteen states were considering chemical castration for sex offenders.(7) Making the debate even more uncertain is the fact that involuntary castration has been rendered unconstitutional by the United States Supreme Court.(8)

      One of the main issues in the castration debate is whether taxpayers should pay for a prisoner's voluntary castration. Taxpayers are already required to pay for extended prison sentences. Another issue worthy of consideration is the question of whether taxpayers should fund counseling in prisons to reform sexual offenders.

      Various prisoners in the United States and abroad have requested to be castrated.(9) In Texas, Larry Don McQuay requested surgical castration, arguing that prison had done nothing to deter him from molesting children in the future.(10) McQuay is one of the most vocal prisoners advocating castration as a treatment of sexual deviants.(11) While McQuay has only been convicted of one count of child molestation, he admits to having committed at least 235 criminal acts involving child molestation.(12) McQuay said, "I dreamed of the violent rape of a 12-year-old girl .... Yeah, I could see where I was getting pleasure out of it, and I'm a couple of steps away from killing a victim."(13) McQuay feels certain that castration is the beat and only option available to him to prevent him from molesting children in the future.(14) McQuay is so certain that only surgical castration will stop his predations that he has asked a criminal justice reform group, Justice for All, to help him raise money for the operation.(15) McQuay was recently released into a halfway house where he again requested castration.(16) The publicity surrounding McQuay's recent request seems to have led to a reexamination by politicians and the legal community of the viability of castration.(17)

      Prior to 1995, Texas gained notoriety when District Court Judge Michael McSpadden was prepared to grant Steven Allen Butler probation if he voluntarily underwent castration.(18) Judge McSpadden was condemned by many in Texas and throughout the legal and medical communities for ordering the procedure,(19) and he eventually withdrew the offer.(20)

      One of the reasons proffered for the refusal of the Texas Department of Criminal Justice to allow castration is the specter of liability.(21) Further problems arise in attempting to find doctors who will perform the controversial procedure.(22) This issue was tantamount in the recent McQuay request.(23) The citizens group Justice for All was successful in raising the funds for the procedure, but could not locate a doctor to perform the requested castration procedure.(24) One reason for this may be that doctors, like state officials, fear repercussions in the liability area. Additionally, doctors generally do not wish to be involved in the punishment of an offender.(25) One doctor has compared it to practices in Nazi Germany when doctors conducted experiments on prisoners.(26) "The idea that physicians would be used by the criminal justice system to perform mutilation on prisoners in order to effect punishment would be against a doctor's ethics as well as the Hippocratic Oath."(27)

      In 1991, Martin C. Curnow was convicted of child molestation and two counts of rape of a child in Washington.(28) While serving a 180 month sentence, Curnow requested that the Washington courts allow him to be surgically castrated.(29) The procedure however was denied as not being "medically necessary" for an inmate.(30) Washington's department of corrections health care coordinator stated that no treatment in prisons would be funded unless the treatment is deemed "medically necessary."(31) The same argument was made by an Assistant County Attorney in Harris County, Michael Fleming, who stated that elective procedures are unavailable to inmates.(32)

      The "medical necessity" of the procedure depends on whether the castration is deemed treatment for the inmate or punishment. This issue has been discussed at length in papers by doctors, ethicists, and legal analysts.(33)

      The most explosive issue in the castration debate is the topic of involuntary castration. Involuntary castration is a violation of the Eighth Amendment of the United States Constitution.(34) In Michigan, a judge conditioned a sentence of five years probation on a pedophile's voluntary submission to chemical castration.(35) The Michigan appeals court, however, ruled that the chemical castration was an unlawful condition of probation.(36) This example may support the notion that providing voluntary castration to repeat male sexual offenders is more constitutionally and ethically acceptable.

      However, this solution begs the question: Does the justice system want to treat these violators or merely exact retribution for their crime against society? In Texas, for example, only about 200 of the more than 25,000 imprisoned sex offenders are in a treatment program designed specifically for these types of criminals.(37)

      In one midwestern town, "Wayne" owned the local newspaper, coached little league, and organized the towns annual "watermelon feed."(38) What the town did not know was that Wayne also molested little boys.(39) Wayne pleaded guilty to two charges of child molestation.(40) He consented to more than three months of treatment by chemical castration.(41) Wayne said "I realized 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."(42)

   2. Castration Abroad. Framing the International Debate

      Examples of pedophile offenders requesting castration have also occurred outside the United States. In England, a man known only as Tom requested surgical castration after spending seventeen years in prison.(43) Prison officials refused, however, and he was eventually released from incarceration.(44) After his release, Tom went on a forty-two day hunger strike and even tried to castrate himself.(45) He later found two psychiatrists who supported him and was eventually castrated at his own expense.(46) Tom says that he now has no sexual urges at all and is unable to get an erection.(47) Tom argues that the surgery has spared four or five children from the horrors of molestation since his release from prison.(48)

      In London, Mark Witham requested and received a chemical castration drug after being convicted of sixteen instances of homosexual pedophilia.(49) After he began treatment, the Mental Health Act Commission stopped his treatment because of concerns about possible side effects.(50) Whitman later sued, and the High Court decided the treatment was outside the commission's jurisdiction(51) and allowed Whitman to resume taking the drug in May 1988.(52)

      In recent years, the Catholic church has been barraged with accusations of sexual abuse of children by Catholic priests.(53) In response to the outcry, the Catholic church in the United States began a treatment program for pedophile priests.(54) The program, called the St. Luke Institute, began treating priests in 1985.(55) The St. Luke Institute uses chemical castration in its treatment program to "suppress libido."(56) Whatever the circumstances, the issues surrounding the appropriateness and utility of castration are multifarious and controversial.

   3. Purpose of Analysis

      The purpose of this Comment is to survey the use of castration on sexual offenders in the international context. Proponent's of castration measures in the United States rely on international studies to support it as a punitive measured.(57) No substantial studies of this nature have been performed in the United States. Without the data these studies provide, reliable evidence to support or condemn the idea of castration is limited.

      This comment will first consider the use of castration procedures domestically and internationally. Next, it examines the history of castration around the world. Parts V and VI analyze and compare several U.S. state legislative initiatives and foreign laws which allow castration procedures. Finally, Parts VII-X...