By Jonathan Pugh

Tory Grant, the justice minister for New South Wales (NSW) in Australia, has announced the establishment of a task force to investigate the potential for the increased use of anti-libidinal treatments (otherwise known as chemical castration) in the criminal justice system. Such treatments aim to reduce recidivism amongst sexual offenders by dramatically reducing the offender’s level of testosterone, essentially rendering them impotent. The treatment is reversible; its effects will stop when the treatment is ceased. Nonetheless, as I shall explain below, it has also been linked with a number of adverse side effects.

Currently, in New South Wales offenders can volunteer for this treatment, whilst courts in Victoria and Western Australia have the discretion to impose chemical castration as a condition of early release. However, Grant’s task force has been established to consider giving judges the power to impose compulsory chemical castration as a sentencing option. Notably though, New South Wales would not be the first jurisdiction to implement compulsory chemical castration in the criminal justice system. For instance, Florida and Poland also permit compulsory chemical castration of sex offenders.

The use of chemical castration is in the criminal justice system is highly controversial. Although Grant supports his establishment of the task force by pointing out that 17 per cent of child sex offenders are likely to commit further offences within two years, many have raised concerns about the limited effectiveness of chemical castration in preventing recidivism amongst violent sexual offenders. In an extensive meta-analysis, Losel and Schmucker found an 11.1% recidivism rate amongst sex-offenders who had been castrated (either chemically or physically) following the offence compared to a 17.5% recidivism rate amongst non-treated offenders.[1]

Another concern that has been voiced following the announcement of Grant’s task force pertains to the side effects of chemical castration. The treatment has been linked with a number of adverse side effects including higher risk of osteoporosis, infertility, and feminisation of the body. Furthermore, since chemical castration reduces the subject’s ability to procreate, human rights groups have claimed that compulsory chemical castration amounts to ‘cruel and unusual punishment’ of the sort that is ruled out by the eighth amendment of the US constitution.

However, arguably the most salient ethical concern with permitting the imposition of compulsory chemical castration in the criminal justice system pertains to considerations of autonomy. A central tenet of medical ethics is that it is permissible to perform a medical intervention on a competent individual only if that individual has given his informed consent to that intervention. In turn, we tend to understand the importance we place on informed consent to be grounded by the value of individual autonomy.

As I mentioned above, currently in NSW, chemical castration is only permitted when the offender volunteers for treatment; the offender must thus consent to the treatment before it may be carried out. Moreover, since the length of the offender’s sentence is not contingent upon their undergoing chemical castration, there are few concerns about undue influence undermining the validity of the offender’s consent under the current system. Contrast this to the policy in Victoria and Western Australia; whilst chemical castration may ostensibly only be carried out on an offender if they provide valid consent in these jurisdictions, many have criticised this sort of policy on the basis that making an offender’s release contingent on their undergoing a medical intervention represents undue influence on their decision to undergo the treatment of the sort that undermines the validity of their consent. As such critics charge that the policy only pays lip service to the moral importance of consent, whilst in fact endorsing the use of a medical intervention in the absence of valid consent.

Whether or not we believe that offenders can validly consent to chemical castration in this context is an interesting theoretical question, but it is one that need not concern us here.[2] However, it serves as an interesting comparison to the prospect of imposing compulsory chemical castration. What is interesting about this latter practice is that there can be no doubt that it is a non-consensual treatment. It is no surprise then that medical professionals in Australia have been quick to oppose the policy. For instance, a spokesperson for the Royal Australian and New Zealand College of Psychiatrists told a media outlet that the college opposed the use of compulsory chemical castration on sex offender on the basis that:

(Our) Code of Ethics states that psychiatrists shall seek valid consent from their patients before undertaking any procedure or treatment.

How then can the practice of carrying out a non-consensual medical intervention on a criminal offender be justified, given the premium placed on individual autonomy in medical ethics? A simple solution to this problem would be to appeal to a consequentialist theory of punishment, and claim that if compulsory chemical castration is effective at reducing recidivism, then the ends can justify the means. However, even if we assume that a consequentialist theory of punishment is plausible, and that chemical castration is effective at preventing recidivism, this response avoids the deeper theoretical problem. The prospect of compulsory chemical castration in criminal justice raises questions that are at the intersection of medical ethics and criminal justice ethics; the problem that supporters of compulsory chemical castration have to resolve is why do considerations of consent not have the final word in the criminal justice context, if we presume that such considerations often trump consequentialist concerns in medical ethics.

One argument might begin by observing that we treat criminal offenders in various ways without their consent, and in ways that we would not treat other citizens, because criminal offenders have forfeited many of the rights that ordinary citizens enjoy, by virtue of carrying out their criminal offence. For instance, we incarcerate criminal offenders for long periods of time, and force them to carry out community service against their will. Why not suppose that offenders have similarly forfeited their right to refuse medical treatment?

However, it is one thing to claim that offenders have forfeited their right to free movement and association (which may be understood to safeguard ordinary citizens from being incarcerated against their will); it is quite another to claim that they have also forfeited their right to refuse a medical treatment. Indeed, the right to refuse medical treatment is bound up with the offender’s right to bodily integrity, and, some might claim, a putative right to mental integrity. In order for this argument in favour of compulsory chemical castration to get off the ground, one would need to explain why offenders have also forfeited these rights. This is likely to be a difficult task, since the right to bodily integrity is often understood to be more robust than the right to freedom of movement and association that we infringe when non-consensually incarcerating criminal offenders. However, my colleague Thomas Douglas has argued against this widespread view.[3]

An alternative argument in support of the use of non-consensual chemical castration might point to other contexts in which the use of non-consensual medical interventions has been deemed to be permissible. Despite the importance placed on informed consent in biomedical ethics, there are a number of cases in public health in which non-consensual medical interventions (broadly construed) have been carried out in the interests of the wider public. For instance, it seems plausible to suggest that it may be permissible to infringe the rights to free movement and association of individuals in order to prevent the transmission of infectious diseases; consider, for instance the wide-spread use of quarantine and isolation in the recent Ebola epidemic. Furthermore, states have occasionally implemented compulsory public health measures that involve bodily invasion; consider for example the use of compulsory occupational health screening and examination programmes. A supporter of compulsory chemical castration might argue that if it is permissible to carry out certain non-consensual medical interventions in order to prevent threats to public health, why should we not also carry out non-consensual interventions to prevent threats to public safety posed by violent sex offenders, especially when the latter pose culpable threats in a way that the former do not.

I do not mean to endorse either of these arguments here – there are a number of potential disanalogies that one might raise. For instance, one important disanalogy between the compulsory use of chemical castration and the practices considered above is that the former but not the latter seem to pose a direct threat to mental integrity. I cannot resolve this question here. Rather, these arguments suggest that we cannot simply dismiss the compulsory use of chemical castration as immoral by appealing to the fact that it is non-consensual. Rather, we must explain how this practice differs from the forms of non-consensual (non-medical) treatment we already impose on criminal offenders, and the use of non-consensual medical interventions in public health. Our answer to this question must be informed not only by an adequate understanding of the role of consent in medical ethics, but also by considerations in penal theory.

For those who are interested in this topic, I am currently addressing these sorts of questions in a Wellcome Trust funded project with my colleagues Thomas Douglas (Principal Investigator), David Birks, and Lisa Forsberg. You can find out more about our work on the project here: http://www.philosophy.ox.ac.uk/neurocorrectives

[1] Friedrich Lösel and Martin Schmucker, “The Effectiveness of Treatment for Sexual Offenders: A Comprehensive Meta-Analysis,” Journal of Experimental Criminology 1, no. 1 (April 1, 2005): 128, doi:10.1007/s11292-004-6466-7.

[2] For discussion, see John McMillan, “The Kindest Cut? Surgical Castration, Sex Offenders and Coercive Offers,” Journal of Medical Ethics, May 11, 2013.

[3] Thomas Douglas, “Criminal Rehabilitation Through Medical Intervention: Moral Liability and the Right to Bodily Integrity,” The Journal of Ethics 18, no. 2 (June 1, 2014): 101–22, doi:10.1007/s10892-014-9161-6.