Page 17 of 32
The Institute does not support making chemical castration compulsory – either as a mandatory
order if the trigger conditions are satisfied or giving courts a discretion to make a sentencing order which compels the offender to submit to drug treatment. Coercive treatment of this
nature infringes ethical and human rights principles and is contrary to the general right to refuse medical treatment and to submit to a number of known possible side effects of the
drugs.Instrumental arguments about the effectiveness of such treatment as a means of reducing sexual recidivism are reasons for offering such treatment to sex offenders but do not justify
compelling offenders to undergo such treatment as part of a sentencing order.
10
56. The report notes that: drugs such as Medroxyprogesterone acetate MPA are sometimes used in
the treatment of sex offenders; where drugs are used for volunteers this is not particularly o t o e sial; ut that he i al ast atio is ot a se te i g optio i a Aust alia ju isdi tio
see paragraph 6.4.33.
F. United States of America US
57. Several US states have adopted laws since the mid-1990s that provide for CC. Variations of the
discretionary and mandatory CC sentencing regimes exist or existed in at least the following other US jurisdictions: Montana; Iowa; Wisconson; Georgia repealed; and Oregon repealed.
11
58. Specific reasons for the introduction of these laws provided by legislators are discussed below in
relation to the CC sentencing regimes of three particular states: California; Florida; and Louisiana. The following are more general factors that have been cited as potentially explaining the
introduction of such laws. One such factor is the perception in the US that prisons were overcrowded, coupled with the realisation that most offenders will eventually be released from
prison.
12
CC may be cheaper than imprisonment. A d CC la s a e pa t of a tough o i e
policy; or be a politically motivated response to public pressure our outrage about particularly terrible offences or series of offences.
California 59.
Does the criminal law provide for a form of chemical castration CC? California Penal Code section
645
13
provides that a person convicted of certain types of offences may or must be sentenced to undergo medroxyprogesterone acetate MPA treatment. This law passed through the California
10
Tasmanian Law Reform Institute, Sentencing: Final Report, No 11, June 2008, available at http:www.utas.edu.aulaw-reformpublicationscompleted-law-reform-projects
.
11
Zachary E. Oswald, Off with His __: Analyzing the Sex Disparity in Chemical Castration Sentences , Mich. J. Gender L. 19 2013 471, 483. Available at: http:repository.law.umich.edumjglvol19iss25483.
12
Zachary E. Oswald, Off with His __: Analyzing the Sex Disparity in Chemical Castration Sentences , Mich. J. Gender L. 19 2013 471, 480. Available at: http:repository.law.umich.edumjglvol19iss25483.
13
CA Penal Code § 645 through 2012 Leg Sess. The law may be viewed at Justia, http:law.justia.comcodescalifornia2011penpart-1639-653.2645, accessed on 24 February 2016. It may also
be accessed at FindLaw, http:codes.findlaw.comcapenal-codepen-sect-645.html, accessed 24 February 2016. See also the California Government website. The relevant amending law was Assembly Bill 3339 1996. See: Peter
J. Gi i oIII. Ma dato Che i al Cast atio fo Pe pet ato s of “e Offe ses Agai st Child e : Follo i g
Califo ias Lead , Pepp. L. Rev. 1 1998, available at: http:digitalcommons.pepperdine.eduplrvol25iss13.
Page 18 of 32
legislative process in May, August and September 1996 and commenced operation on 1 January 1997. The sentencing regime specifies the use of the drug MPA. It appears to have been used as a
model for similar laws in other jurisdictions in the US, notably Florida and Louisiana, which are reviewed below.
60.
To which offences may CC apply? MPA treatment may or must be ordered if an offender has
committed the offence of rape or other offences of a sexual nature and the victim of the offence is not yet 13 years of age.
61.
How is the law relating to CC structured? According to section 645a, the court may order that a
person, upon parole, undergo MPA treatment if convicted of a first specified offence. Thus, for the first offence, the sentence is discretionary. According to section 645b, a person guilty of a second
offence shall undergo MPA treatment. Thus, if there is a second conviction for a specified offence, MPA treatment is mandatory. Alternatively, a person may undergo voluntary and permanent
surgical treatment.
62. Section 645d provides that treatment shall begin one week prior to release; and shall continue
u til the Depa t e t of Co e tio s de o st ates to the Boa d of P iso Te s that this t eat e t is o lo ge e essa .
63. Finally, Section
f p o ides that the Depa t e t of Co e tio shall ad i iste this se tio a d i ple e t the p oto ols e ui ed this se tio . Pa ag aph f fu the p o ides that othi g i
those protocols shall require a physician or surgeon to participate against his or her will in the administration of the provisions of section 645. Paragraph f also provides that the protocols shall
include, but not be limited to, a requirement to inform the person about the effects and side-effects of treatment.
64.
Practice and implementation issues. In 2010, there were media reports that, despite the
mandatory nature of the sentencing regime, the regime was not being implemented on a widespread basis.
14
65.
Why were these laws introduced or why is a sentence involving CC imposed?It has been difficult to
locate primary materials such as official documents discussing the proposed legislation concerning the reasons why the law was made. The primary motivating factor expressed by the California
Go e o s offi e appears to have been the promise that CC will reduce rates of recidivism.
15
14
CB“ , Califo ia La Ma dates Che i al Cast atio of Ce tai Offenders , Ma ,
http:www.cbs8.comstory12443091california-law-mandates-chemical-castration-of-certain-offenders, accessed on 26 February 2016.
15
Peter J. GiminoIII , Mandatory Chemical Castration for Perpetrators of Sex Offenses Against Children: Following
Californias Lead , 25 Pepp. L. Rev. 1 1998, available at: http:digitalcommons.pepperdine.eduplrvol25iss13
. Gi i o uotes a Age e F a e P ess a ti le: Califo ia
Go e o “ig s Cast atio Legislatio , “epte e
.
Page 19 of 32
66. A Los Angeles times article points out that the law passed through both chambers of the legislature
very quickly and legal scholars have pointed out that there were very few votes that opposed the passing of the legislation.
16
The Los Angeles Times quoted the Governor, Pete Wilson, as follows:
We do ot p ete d that a la is a pa a ea… This is o e o e alua le tool fo la enforcement. But as long as it protects one girl or one boy, then keeping it on the books is worth
enduring all of the criticism the opponents can muster.
67. Assemblyman Hoge, who was closely involved in the lawmaking process, is quoted by the New York
Times as stating the following: There is no crime out there more heinous than child molestation. These are our most helpless
citizens. California and Californians are fed up with those who prey on kids, and were going to jail them and make it so that when they return to society as a whole, they dont have the desire
to do what they used to do.
17
68. This California law appears to have been a causative factor for a number of other states in the US to
pass similar legislation. Two of those – Florida and Louisiana – are discussed in detail below. Indeed,
the Los Angeles Times quotes Assemblyman Hoge as follows at the time of the signing of the law: We have now set the stage for America--
a d e hope ou a e liste i g A e i a … We a do this all over the country. This is going to have the biggest impact on this horrible, horrible crime
of any legislation ever seen.
18
Florida 69.
Does the criminal law provide for a form of chemical castration CC?In Florida, a law
19
that commenced came into effect in October 1997 makes provision for CC as a distinct sentence that
the Court may, and in some cases must, impose. The codified reference for the law is Florida Statutes 794.0235
a d its title is Ad i ist atio of ed o p ogeste o e a etate MPA to pe so s convicted of
se ual atte .
20
As is the case with the California law, it specifies the type of drug to be used. Indeed, the law is very similar in its structure to the law in California and also Louisiana.
16
Los A geles Ti es, Moleste Cast atio Measu e “ig ed , “epte e
, http:articles.latimes.com1996-
09-18newsmn-45100_1_child-molestation , accessed 26 February 2016.
17
Ne Yo k Ti es, California Child Molesters Face Chemical Castration , August ,
http:www.nytimes.com19960827uscalifornia-child-molesters-face-chemical-castration.html, accessed 26 February 2016.
18
Los Angeles Times, Molester Castration Measure Signed , 18 September 1996, http:articles.latimes.com1996- 09-18newsmn-45100_1_child-molestation, accessed 26 February 2016.
19
Ch. 97-184, § 1, 1997 Fla. Laws 3455 codified at FLA. STAT. § 794.0235 1997.
20
The law may be viewed at: Official Internet Site of the Florida Legislature, Statutes, FLA. STAT. § 794.0235, http:www.leg.state.fl.usstatutesindex.cfm?App_mode=Display_StatuteSearch_String=URL=0700-
07990794Sections0794.0235.html , accessed 22 February 2016.
Page 20 of 32
70.
To which offences may CC apply?A Court may sentence a defendant to be treated with MPA if the
person is convicted of sexual battery under s 794.011. Sexual battery essentially includes any form of sexual penetration of a child; or without consent.
71.
How is the law relating to CC structured?Section 794.02351 provides that the ou t … [m]ay
se te e a defe da t to e t eated ith ed o p ogeste o e a etate MPA … if the defe da t is o i ted of se ual atte … e phasis added . Thus, upo a fi st o i tio , MPA is a
discretionary sentence. Subsection 2 provides that the court shall sentence a person to be treated with MPA upon a second conviction for sexual battery. Thus, for a second offence of sexual battery,
the sentence is mandatory.
72. If a person is sentenced to be treated with MPA, that sentence may not be imposed instead of or
reduce any other sentence. Physical castration may be ordered with consent of the defendant. If a person fails to submit to treatment, this constitutes a separate offence.
73. “u se tio
a p o ides that su h a se te e shall be contingent upon a determination by a ou t appoi ted edi al e pe t, that the defe da t is a app op iate a didate fo t eat e t. The
la does ot defi e the te app op iate o spe if hi h fa to s a e ele a t i the determination whether the defendant is an appropriate candidate. Subsection 3 provides that
[ ]othi g o tai ed i this se tio shall e o st ued to e ui e the o ti ued ad i ist atio of ed o p ogeste o e a etate MPA t eat e t he it is ot edi all app op iate.
74. The se te e ust spe if the du atio of t eat e t fo a spe ifi te of ea s, o i the
dis etio of the ou t, up to the life of the defe da t. T eat e t o e es o late tha a eek
prior to release. 75.
Practice and implementation issues. Subsection p o ides that The Depa t e t of Co e tio s
shall p o ide the se i es e essa to ad i iste ed o p ogeste o e a etate MPA t eat e t. 76.
In the case of Tran v State of Florida,
21
the District Court of Appeal of Florida considered a mandatory sentence of MPA treatment. The appellant challenged the constitutional validity of the
MPA sentence regime. The Court, however, did not consider this argument because it found the sentence was not lawfully imposed on other grounds.
77. The Court relevantly stated the following in relation to the MPA sentencing regime:
We eje t the states o te tio that the MPA statute is fo e edial t eat e t pu poses, as opposed to punishment. The language of the entire statute speaks of MPA in terms of a
se te e a d a pe alt . … As a atte of statuto o st u tio , it ould appear that a sentence to administration of MPA does constitute punishment. Pursuant to the statutory scheme, the
administration of MPA is imposed as part of a criminal sentence. Indeed, section 794.0235 is placed within Floridas criminal code, rather than
u de Flo idas pu li health ode. … “i e the
21
965 So.2d 226 Fla. Dist. Ct. App. 2007, Warner J, Klein and Hazouri JJ concurring. The case may be viewed at: Case text,
https:casetext.comcasetran-v-state-13 ,accessed 22 February 2016.
Page 21 of 32
legislature has deemed MPA treatment a penalty, we conclude that it is part of the defendants pu ish e t a d se te e.
78. Apparently even the various states that have mandatory laws, such as Florida, only rarely actually go
ahead with mandatory treatment if the offender does not also consent.
22
79.
Why were these laws introduced or why is a sentence involving CC imposed?The researcher has so
far had great difficulty in finding primary source material that explains or justifies the MPA sentencing regime.
80. As the discussion of the MPA sentencing regime by the Florida appeals court in Tran makes clear,
the MPA se te i g egi e is a pe alt a d pa t of the defe da t s pu ish e t a d se te e. It is therefore punitive in nature.
81. Spalding points to motivating factors of Florida legislators for the MPA sentencing regime which
included the following:
23
the MPA sentencing regime is necessary to alleviate the increasing sexual offence rate in the US; and that the MPA sentencing regime will reduce the number of repeat sex
offe de s. “paldi g su a ises this as follo s: The reasoning advanced for the enactment of
Flo ida s he i al ast atio statute is that eha ilitatio of se offe de s a d thesafet of Flo ida s citizens are sufficient justifications for establishing chemical castration as a condition of release for
convicted sex offenders.
24
Louisiana 82.
Does the criminal law provide for a form of chemical castration CC?In June 2008, Louisiana
‘e ised “tatutes LA ‘e “tat : . , e titled Ad i ist atio of ed o p ogeste o e a etate pa to e tai se offe de s , o
e ed a e i to effe t .
25
The law not only explicitly specifies a form of castration as a sentencing option, but also specifies which drug is to be
administered.
83.
To which offences may CC apply? The offences for which it is imposed are specified inLA Rev Stat
14:43.6 and include aggravated forms of rape and incest. 84.
How is the law relating to CC structured?Upon a first conviction for a specified offence, the Court
may se te e the offe de to e t eated a o di g to a s hedule of ad i ist atio o ito ed
22
“ha a Va “l ke, Go do P Waldo, a d Willia Bales Hit E Whe e it Hu ts: Mo eta a d No t aditio al Punitive Sanctions , in International Handbook of Penology and Criminal Justice, eds. ShlomoGioraShoham, Ori
Beck, and Martin Kett, 2008, p 141.
23
La Hel “paldi g, Flo ida s 1997 Che i al Cast atio La : A ‘etu to the Da k Ages , Florida State University Law Review 25 1998 117, 118; 138.
24
La Hel “paldi g, Flo ida s 1997 Che i al Cast atio La : A ‘etu to the Da k Ages , Florida State University Law Review 25 1998 117
, . “paldi g s a ti le is st o gl iti al of the MPA se te i g egi e. He
points to several constitutional issues; legal, ethical and practical issues relating to the administration of the drug; and also questions the effectiveness of the treatment for certain types of sex offenders.
25
Justia, http:law.justia.comcodeslouisiana2011rstitle14rs14-43-6, 21 Feb 2016.
Page 22 of 32
the Department of Public Safe t a d Co e tio s. ‘“ : . A Thus, the se te e is dis etio a
for a first offence. 85.
If a person is convicted of a second specified offence, the Court shall sentence the offender to be treated. Thus, the sentence is mandatory. RS 14:43.6 B1.
86. The law further provides that the treatment may not be imposed in lieu of or reduce any other
penalty. The Court may order physical castration if the defendant consents. RS 14:43.6 2. A court appointed medical expert must determine the suitability of the treatment. Also, the treatment shall
commence not later than one week prior to the release of the defendant. If the defendant refuses to undergo treatment, this is an offence and upon conviction the offender shall again, mandatory
be imprisoned for not less than three but not more than five years.
87.
Practice and implementation issues.Medroxyprogesterone acetate is administered through
injection. As of 2011, three years after the law commenced, it appears that this sentencing option was not commonly used by judges in Louisiana, even where it may be lawfully imposed.
26
88. The law was considered by the Louisiana Supreme Court in State Ex Rel. Herbert Nicholson Versus
State of Louisiana.
27
Relevantly for this research tasks, the Court held that: …the chemical
castration requirements of the new statute are expressly part of the punishment that a court may i pose fo the se i es e u e ated i La.‘.“. : . . The Court further stated that therefore,
a d e ause the E Post Fa to Clause p ohi its et oa ti e application of new laws that increase the pe alt fo hi h the i e is pu isha le … a d e ause e fi d o lea l e p essed legislati e
i te t to appl this su sta ti e ha ge i the la et oa ti el , the la does ot appl retroactively.
89.
Why were these laws introduced or why is a sentence involving CC imposed? The Governor of
Louisiana at the time, Bobby Jindal, made a statement at the time the law came into effect. According to one press source, Governor Bobby Jindal said that he wanted to create a deterrent to
hei ous a d disgusti g i es. We thi k it s iti al to gi e the judi ial s ste a d ou la enforcement officials every tool possible to punish these monsters and keep them away from our
hild e .
28
26
Sentencing Law and Policy Blog, Louisia a judges ot usi g autho it to o de he i al ast atio fo se
offe de s ,January 10, 2011, http:sentencing.typepad.comsentencing_law_and_policy201101louisiana- judges-not-using-authority-to-order-chemical-castration-for-sex-offenders.html, accessed 20 February 2016. See
also The Ad o ate, No Che i al Cast atio fo Co i ted , Ma ,
http:theadvocate.comnewsneworleansneworleansnews12292887-123no-chemical-castration-for-convicted ,
accessed 20 February 2016.
27
Case No. 2013-KH-0072.
28
Huffi gto Post, Louisiana Gov. Jindal Authorizes Chemical Castration Of Sex Offenders, Ma ,
http:www.huffingtonpost.com20080626louisiana-gov-jindal-auth_n_109342.html , accessed 20 February
2016.
Page 23 of 32
90. A copy of the press release may be viewed at the Vote Smart website.
29
That press release contains the following quotes from Governor Bobby Jindal:
The Sex Offender Chemical Castration Bill is a good bill, and I am especially glad to sign it into Louisiana law today, on the same day the Supreme Court has made an atrocious ruling
against our states ability to sentence those who sexually assault our children to the fullest extent. Those who prey on our children are among the very worst criminals imaginable.
Not only as the Governor of this great state, but as a father of three children, I believe that sexually assaulting a child is one of the very worst crimes and I am glad we have taken such
strong measures in Louisiana to put a stop to these monsters brutal acts. I want to send the message loud and clear - to the Supreme Court of the United States and beyond - make no
mistake about it, if anyone wants to molest children and commit sexual assaults on kids they should not do so here in Louisiana. Here, we will do everything in our power to protect our
children and we will not rest until justice is won and we have fully punished those who harm them.
91. The language of the law is punitive in nature. Its primary purpose appears to be to punish those
convicted of the offences to which it applies. The Louisiana Supreme Court made this point in the case of State Ex Rel. Herbert Nicholson, quoted above.
92. Further, the language used by the Governor in the press release indicates several further purposes
of the law. The first is that it should have a general deterrent effect – that is, it aims to stop persons
from committing the offences to which it applies. It also seeks to protect the community. Finally, it is also intended to serve the purpose of denunciation. Finally, the Governor repeatedly referred to
offences against children.
G. Jurisdictions in Europe
