Chemical castration laws, such as one recently adopted in the U.S. State of Louisiana, raise challenging ethical concerns for physicians. Even if such interventions were to prove efficacious, which is far from certain, they would still raise troubling concerns regarding the degree of medical risk that may be imposed upon prisoners in the name of public safety as well as the appropriate role for physicians and other health care professionals in the administration of pharmaceuticals to competent prisoners over the inmates’ unequivocal objections. This paper argues that the concerns raised by chemical castration are grave enough that, until they are adequately addressed by policymakers, physicians ought not to participate in the process.
KeywordsCastration Sex crimes Law Louisiana Sterilization
One of the central tenets of liberty in Western democracies is the recognition that an individual’s control of his own bodily integrity and of his reproductive decisions ought to be limited only under extraordinary circumstances (Helscher 1994; Gostin 2003). In the United States, a unanimous Supreme Court ruling, Skinner v. Oklahoma (1942), effectively outlawed surgical castration as a form of criminal punishment for nonsexual crimes. Writing for the Court, Justice William O. Douglas classified procreation as “one of the basic civil rights of man” and described the impact of sterilization as permanent, “far-reaching and devastating” (1942, 541). According to Douglas, laws such as the State of Oklahoma’s Habitual Criminal Sterilization Act (1935), which permitted castration of men who had committed three “felonies involving moral turpitude,” were to be held to the strictest standard of judicial scrutiny—and were highly unlikely to stand (Skinner v. Oklahoma 1942, 537). While the involuntary sterilization of psychiatric patients and wards of the state continued in the United States for another four decades, the castration of prisoners as a part of their punishment was universally proscribed.
In the 1970s, two concurrent phenomena brought the issue of castration as punishment back onto the national stage. The first was public outrage at a perceived epidemic of child sexual abuse. Widespread media coverage of a Children’s Hospital National Medical Center Report in 1977 (which found child sexual abuse more common than tonsillectomies or broken arms) and of legislative hearings in the State of Illinois the following year (which found more than 30,000 children were victimized statewide annually) led to demands for stiffer criminal penalties against convicted molesters. At the same time, the development of progestin-only contraceptives, such as depot medroxy-progesterone acetate (DMPA or Depo-Provera), which entered European markets in 1969, raised the prospect of “castrating” men with high doses of hormones. Policymakers and public health experts suddenly found themselves confronting the question of whether it was ethically permissible to treat convicted sex offenders with these hormone-based contraceptives, either as voluntary or mandatory measures, in the hope that so-called chemical castration would reduce the likelihood of recidivism.
Unfortunately, policy decisions have proceeded rapidly in this area—often in contravention of existing scientific evidence and longstanding ethical norms. Since California in 1997 became the first state to initiate a mandatory chemical castration program for convicted pedophiles, eight more U.S. jurisdictions (Florida, Iowa, Georgia, Montana, Wisconsin, Oregon, and Louisiana) have followed with chemical castration laws of their own. Of these, Louisiana’s 2008 statute has proven the broadest: The law permits (and often requires) state judges to impose mandatory Depo-Provera injections for a wide variety of crimes committed against both children and adults, ranging from rape and sexual battery to consensual sexual relations between teenage step-siblings and the vaguely defined offense of “aggravated crime against nature” (Louisiana Code, 14.89.1, 2008) Unless it is struck down by the courts, this law is likely to increase substantially the frequency of chemical castration sentences in the Untied States and to serve as a model for other jurisdictions. A strong argument has been made elsewhere that the scientific basis for the efficacy of these interventions is lacking (White et al. 2009). Although some preliminary research, such as that conducted by Berlin and Meinecke (1981) at the Biosexual Psychohormonal Clinic at Johns Hopkins University Hospital, had demonstrated a reduction in recidivism among offenders treated with Depo-Provera, White et al. have noted that “at present there is so few data to either support or refute the use of antilibidinal drugs, such as meproxyprogesterone, that it is difficult to justify their use outside of a well-conducted trial” (White et al. 2009, 1). However, even if such interventions were to prove efficacious, they would still raise troubling concerns regarding both the degree of medical risk that may be imposed upon prisoners in the name of public safety and the appropriate role for physicians and other health care professionals in the administration of pharmaceuticals to competent prisoners over the inmates’ unequivocal objections. This paper argues that the concerns raised by chemical castration are grave enough that, until they are adequately addressed by policymakers, physicians ought not to participate in the process.
Imposing Medical Risk
One of the traditional arguments mustered in favor of mandatory chemical castration has been that the side effects of the intervention are “minor” and the result is only “temporary” (Bund 1997, 157). Supporters of chemical castration claim that, unlike surgical castration or even vasectomy, the weekly shots involved in Depo-Provera administration are minimally invasive and extremely unlikely to lead to acute medical complications.1 Moreover, should a more efficacious treatment be developed, or an accused sex offender’s conviction be overturned as a result of new evidence, the hormone injections can be halted and the “castration” reversed without any adverse effects. The only significant medical effect of Depo-Provera, according to its proponents, is a reduction of testosterone levels and concomitant sex drive in the recipients—which is the intended purpose of the intervention. (Whether lifelong reduction of a convicted offender’s sex drive amounts in itself to unreasonable punishment, or even to torture, is a legitimate question—but one beyond the scope of this essay.) Advocates of chemical castration further note that the U.S. Food and Drug Administration (FDA) approved Depo-Provera for contraceptive use in women in 1992. Proponents have assumed the incidental side effects of use in male sex offenders would be similar to those found in women using the hormone for birth control—fatigue, weight gain, hot and cold flashes, phlebitis, insomnia, and nausea—although the doses required in men (300–500 milligram injections) are substantially higher than those used for female contraception (Berlin 1997, 169).
The long-term dangers of high-dose Depo-Provera injections, however, may prove far more significant than early advocates of chemical castration initially acknowledged. Among the serious side effects observed in men receiving castration-level doses of Depo-Provera are chronic nightmares, breathing difficulties, migraine headaches, diverticulitis, gall bladder disease, diabetes exacerbation, and, most significantly, both extreme hypertension and thrombosis leading to heart attacks (Spalding 1998). Altered liver function and severe mood changes have also been reported, as have irreversible instances of gynecomastia in patients who have discontinued therapy (Harrison 2007, 16). Recent studies have also revealed significant, and possibly irreversible, bone loss in women using Depo-Provera as a contraceptive over a lengthy period of time (Cundy et al. 1994, 247; Scholes et al. 2005, 139). As a result, the FDA has now imposed a “black box” warning against more than 2 years of Depo-Provera use as a contraceptive when such use is not essential (U.S. Food and Drug Administration 2004). While these severe and even life-threatening side effects may not occur in a large number of cases—the sample of chemically castrated prisoners still remains small, so the overall incidence is unclear—they are certainly not the “minor” risks that advocates had predicted in the 1980s. Moreover, these side effects are not an intended aspect of punishment but are, rather, an additional burden borne by convicted offenders.
More significantly, nobody knows the long-term effects of high-dose Depo-Provera exposure. Depo-Provera was kept off the consumer market in the United States for more than two decades, in part because of concerns that in animal trials it caused a wide variety of cancers (Veitch 1984). Several of these worries—most notably, the high incidence of breast cancer in dog models—were ultimately dismissed by the FDA because the doses involved were far higher than those used by women for birth control. However, the doses used in chemical castration are also far higher than those used in female contraception—so we do not know whether Depo-Provera is carcinogenic at the levels being imposed upon sex offenders. (Of note, FDA experts also argued at the time of approval that if there were any increase in breast cancer from Depo-Provera use, it would be largely offset by a concomitant reduction in endometrial cancer—but as men lack endometrial tissue, they are unlikely to benefit from this mitigating factor (Hilts 1992)). Another study of testosterone suppression, the mechanism of Depo-Provera efficacy, suggests a possible long-term risk of dementia (Almeida and Waterreus 2004, 1071). In effect, unwilling male sex offenders are being used as human guinea pigs in a longitudinal study of the effects of high-dose Depo-Provera exposure. Compounding this disturbing phenomenon is the fact that these former prisoners are likely to have minimal access to other health care resources. None of the jurisdictions that impose these interventions provide free medical observation, or even regular blood pressure checks, to the individuals receiving the hormones. Unlike state prisoners, who are constitutionally guaranteed a basic right to medical care, ex-felons are left to fend for themselves. It is hard to imagine a population less suited for a long-term study of a potentially fatal drug.
If the medical risks entailed by chemical castration appear to be increasingly high, the corresponding benefits are not nearly as clear. This is particularly true in the case of Louisiana’s statute, which imposes the penalty on a broad class of offenders—most notably those guilty of raping or sexually abusing adults. Early statutes drew heavily on the work of researchers such as Berlin and John Money that focused primarily on a narrow class of paraphiliacs, or type IV sex offenders, who exhibited “sexual arousal, erection and ejaculation from a specific fantasy or its achievement” such as sexual activity with children (Berlin 1997, 169).2 So little additional work has been done on chemical castration that the leading meta-analysis in the field concludes that these treatments are “experimental” and questions whether there is enough evidence to justify “implementing widespread and expensive measures to treat convicted sex offenders in an attempt to reduce recidivism rates and the attendant public outcry” (White et al. 2009, 1). Moreover, there is no reason to believe that Berlin’s and Money’s data, which in itself remains controversial, is transferable to those who attack adult men and women. In fact, many advocates for sexual assault victims have been highly critical of this approach. As Denis Snyder, the executive director of the District of Columbia Rape Crisis Center, warned The Washington Post during the first push for broad chemical castration laws, “sexual assault is a crime of violence and aggression … not the product of an uncontrollable sex drive,” so efforts at chemical castration legislation “misfocus the issue and feed into myths about rape” (Boodman 1992, 7) Even many of the most zealous proponents of chemical castration acknowledge that it should be targeted to classes of offenders most likely to benefit from the therapy, namely “preferential pedophiles”—individuals who prefer sex with children, even when sexual opportunities with adults are readily available (Harrison 2007, 16). Reducing the sex drive of other offenders may simply redirect their violent tendencies elsewhere, while lulling the public into a false sense of security. Such a broad-based castration policy as Louisiana’s also may expose thousands of convicted criminals to life-threatening hormones that have no hope of preventing them from committing further crimes.
Additionally, a convicted sex offender may have legitimate reasons, other than medical ones, to object to chemical castration. The right to reproduce, which may be compromised as another “side effect” of Depo-Provera therapy, is the most obvious. Criminal sentences that overtly prohibit felons from having children have repeatedly been struck down by U.S. courts (Slater 2008). Depo-Provera injections, which may deform sperm and lower sperm count, significantly reduce the potential to produce offspring; as a result, for some sex offenders, hormonal therapy becomes a de facto parenting ban. Needless to say, the slope from chemically castrating sex offenders to chemically castrating men and women guilty of child abuse or neglect is frighteningly slippery. This concern seems particularly acute in the United States in light of the history of involuntary sterilizations of psychiatric patients, developmentally-disabled adults, and other wards of the state through much of the 20th century. Another concern is that the physical impact of Depo-Provera on male appearance—from breast growth to hair loss—also may have a significant psychological and social impact. None of these factors taken alone necessarily would make the imposition of hormonal castration unethical. However, in aggregate, they certainly raise the impact of Depo-Provera injections to the level of a major medical intervention, analogous to forced surgery or compulsory shock therapy, rather than an incidental aspect of law enforcement akin to testing blood alcohol levels or providing a DNA swab. As such, this is the only area—outside of the forcible treatment of acutely psychotic criminal defendants in order to render them fit to stand trial—in which the U.S. justice system significantly compromises the bodily integrity of unwilling adults. Certainly, chemical castration is the only mechanism of punishment that does so. Yet if punishment is to be just, it must be relatively precise. The imposition of penalties whose potential long-term sequelae are largely unknown defies the widely valued penal standard that justice should be specific and sentences clearly delineated.
What Role for Physicians?
Even if the state is legally and/or morally justified in imposing chemical castration upon sex offenders, which is not at all clear, it does not follow that physicians and other health care providers may ethically take part in the administration of the necessary drugs. One of the bedrock tenets of the practice of Western medicine is that, barring a strong competing claim, the physician’s foremost duty is to his or her patients. Although for many years physicians, when acting as agents of the state, were viewed as acting outside the physician–patient relationship, that notion has come under increasing challenge (Appel 2011). At a minimum, it is safe to say that some of the duties incumbent upon physicians to their patients remain even when the medical provider is acting on behalf of a third party, whether the criminal justice system or a state agency or even a private third party such as an insurance company. Few and far between are the instances in which a doctor may sacrifice his patients’ welfare for the public good—and these nearly always involve either minor, incidental interventions, such as drawing blood from accused drunk drivers, or areas in which societal welfare is in grave peril and medical professionals offer the only reasonable agents of protection. For instance, we allow physicians to report communicable diseases, in part, because nobody else has access to this information or is otherwise reasonably equipped to do so. Increasingly, professional organizations and even state medical boards have refused to allow physicians to participate in larger violations of a patient’s autonomy or bodily integrity, such as executions.
With this framework in mind, one must ask two sets of questions regarding physicians and chemical castration. First, are involuntary Depo-Provera injections a form of medical treatment and does providing them actually serve the interests of the recipients? And, if so, does the context of these injections justify overriding generally accepted standards regarding the autonomy of competent patients? Second, if Depo-Provera injections are being conducted primarily in the name of the public good, rather than in the interests of individual patients, are these interventions either trivial or, alternatively, of such grave societal importance that they merit doctors abrogating their Hippocratic duty of non-malfeasance? And if this latter situation is the case, are health care providers the only individuals capable of carrying out these injection programs?
The contention that Depo-Provera is an effective treatment for preferential pedophiles is highly controversial, but there is no evidence that hormonal therapy alone, without adjunct counseling, is an effective treatment for those who sexually assault adults. Yet even if such therapy were effective, it likely would not justify doctors imposing it upon unwilling prisoners. Western medical ethics over the past three decades has come to embrace the principle that competent adults may refuse medical care—notwithstanding that some proposed interventions, such as blood transfusions, would in all probability save their lives. Even in the context of the criminal justice system, prisoners have the right to turn down health care (Appel 2003). (The only exceptions have been in cases of severe mental illness, where courts in several nations have held that inmates may be forcibly medicated in order to render them competent to stand trial.) One might conceivably argue that sexual fantasies cloud the thinking of sex offenders so deeply that their competence is impaired, but that seems a decidedly far-fetched claim (and not so far removed from arguing that the religious beliefs of Jehovah’s Witnesses or Christian Scientists cloud their thinking to the point of incompetence—a contention clearly at odds with longstanding approaches to questions of competence and the right to refuse care). In the absence of strong substantiation of this “paraphilic incompetence” claim, there seems no unique reason to deny sex offenders the same autonomy we grant religious dissenters. If one is going to advocate for forced treatment, it will have to be to further the interests of the public—rather than the offenders themselves.
The next question is whether some essential aspect of the public welfare calls for physicians to abandon both the principle of respecting patient autonomy and the principle to “do no harm” in the case of chemical castration—as they do in order to report hard-drinking school bus drivers or patients willfully spreading HIV. However, chemical castration is a prime example of a case where alternative means of protecting the public, which do not call upon physicians to violate their duties to their patients, do exist. The state has a whole host of options available to prevent recidivism—most obviously, incarceration of the offenders via longer prison sentences or civil commitment programs for those who are mentally ill or a danger to others. So while physicians are likely the only individuals who could safely supervise a chemical castration program, it is not at all clear that old-fashioned jail time does not achieve the same stated goals without imposing either high medical risks and consequences upon offenders or an unwanted moral quandary upon physicians. One might argue that a distinction should be made between state laws that mandate chemical castration and those that permit offenders to request castration voluntarily as a condition for early release. Yet obtaining meaningful informed consent from prisoners is a perennial challenge, particularly when their liberty is at stake. Many individuals might claim to prefer a higher risk of death from thrombosis in return for immediate freedom, but these same individuals might well be underestimating their danger in favor of their tangible benefit. Moreover, even if meaningful consent were obtained, the intimate nature of the high stakes trade-off involved might make the state’s offer unethical. By analogy, some convicts might prefer having a hand lopped off to serving a long prison sentence for larceny, but this does not mean we as an ethical society should permit them that choice—and most reasonable people likely would agree that we should not.
The administration of Depo-Provera to sex offenders may be comparable to the administration of lethal injections to capital offenders. Many state statutes require physicians to be present to either dose or administer these fatal cocktails. However, medical ethicists have increasingly spoken out against the role of health care providers in this process, arguing it violates the fundamental duties of physicians to patients without fulfilling an essential societal mandate that only physicians can meet. In 2007, North Carolina’s medical board issued a statement threatening to discipline providers who took part in the practice, and the State of California has had difficulty finding doctors to participate. Physicians in Kentucky futilely attempted to have Governor Ernie Fletcher’s medical license revoked for signing death warrants. Similarly, chemical castration shifts a physician’s primary duty from that of his or her patients to that of the state without a justifiably compelling cause. In some cases, the harm imposed may be just as great—as sex offenders receiving high-dose hormones and minimal other health care eventually succumb to the sequelae of hypertension, thrombosis, and a host of as yet unanticipated medical complications.
Conclusions: Necessary, But Not Available
Physicians have it largely within their own power to prevent policymakers from implementing chemical castration statutes. For instance, while Louisiana’s law does not contain a conscience exemption overtly permitting physicians to opt out of the practice, as do laws in several other states, it is difficult to imagine any legal or political grounds upon which Louisiana could conscript private physicians into chemically castrating patients. So, if no Louisiana physicians are willing to administer the injections or if the Louisiana State Board of Medical Examiners were to sanction physicians who did attempt to participate in the process, the state would be compelled to terminate its program. The statute even contains a proviso stating that “nothing in this section shall be construed to require administration of medroxy-progesterone acetate (MPA) treatment when it is not medically appropriate” (Act 441 2008, 3). By arguing that Depo-Provera therapy for sex crimes against adults is never appropriate, which current evidence suggests to be the case, Louisiana doctors could easily comply with both the letter and the spirit of the law. Physicians may have an ethical duty to insist that medical professionals are necessary to screen for the dangerous health effects of Depo-Provera injections and they also may have a professional obligation not to participate in the administration of these hormones. This paradox likely would force Louisiana to rethink its approach to the handling of paroled sex offenders and also should prevent other states from implementing broad chemical castration regimes. As long as the medical risks remain high and the public benefits uncertain, physicians have an ethical duty to refuse participation in this highly experimental form of medicalized punishment.
Other agents, such as Depo-Lupron or Tamoxifen, might also be used as castrating agents, with their own series of effects, but all U.S. state laws currently require either depot medroxy-progesterone acetate or its “medical equivalent,” and there is no evidence that any hormone other than Depo-Provera is currently being used in the United States. Goserelin (Zoladex), a luteinizing hormone-releasing hormone (LHRH) antagonist, is used in Great Britain.
Paraphilias are generally considered to include sexual gratification achieved principally through activities involving nonhuman objects, animals, or non-consenting partners.
- Act 441 of the Louisiana Legislature, 2008. SB 144.Google Scholar
- Appel, J.M. 2003. The forcible treatment of criminal defendants. Medicine & Health Rhode Island 86(11): 367–369.Google Scholar
- Appel, J.M. 2011. Capital punishment, psychiatrists and the potential “bottleneck” of competence. Journal of Law and Health 24(1): 45–78.Google Scholar
- Boodman, S.G. 1992. Does castration stop sex crimes? An old punishment gains new attention, but experts doubt its value. The Washington Post, March 17, 7.Google Scholar
- Helscher, D. 1994. Griswold v. Connecticut and the unenumerated right of privacy. Northern Illinois University Law Review 15(1): 33–62.Google Scholar
- Hilts, P.J. 1992. Panel urges contraceptives approval. The New York Times, June 20, 1992 6.Google Scholar
- Slater, D. 2008. The judge says don’t get pregnant. A lapsed law now sees new life. The Wall Street Journal, September 25, A18.Google Scholar
- Spalding, L.H. 1998. Florida’s chemical castration law: A return to the Dark Ages. Florida State University Law Review 25: 117–139.Google Scholar
- U.S. Food and Drug Administration. 2004. Black box warning added concerning long-term use of Depo-Provera contraceptive injection. FDA Talk Paper T04-50, November 17.Google Scholar
- Veitch, A. 1984. Cancer fears in US over Depo Provera. The Guardian, October 30, 4.Google Scholar
- White, P., C. Bradley, M. Ferriter, and L. Hatzipetrou. 2009. Managements for people with disorders of sexual preference and for convicted sexual offenders. Cochrane Database of Systematic Reviews, no. 4. doi:10.1002/14651858.CD000251.