Chemical Castration

CHEMICAL CASTRATION
A brief of California's Law and It's Consideration in India

By Aditi Sharma

BA. LL.B 1st year

Dr. B.R. Ambedkar National Law University

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Table of Contents

What Is MPA?............................................................................................................................3

What Does MPA Do?.................................................................................................................3

Types of sex offender.................................................................................................................4

What exactly paraphiliac is ?.....................................................................................................4

California....................................................................................................................................4

Voluntary Treatment..............................................................................................................4

Unsuccessful Chemical Castration.........................................................................................5

Arizona v. Christophe........................................................................................................5

Section 645 of California Penal Code....................................................................................5

Old Version........................................................................................................................5

The "New" Section 645 of the California Penal Code , Amended One.............................5

Montana's Chemical Castration Law, April 19, 1997................................................................6

Georgia's Chemical Castration Law 1 May 1997......................................................................6

Florida's Chemical Castration Law May 30, 1997.....................................................................7

Challenges to Chemical Castration Law....................................................................................7

State v. Brown........................................................................................................................7

Considering What is cruel ?...................................................................................................8

Can it be introduced in India?....................................................................................................8

Recent Petition.......................................................................................................................9

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California was the first state to allow chemical castration of sex offenders in the mid-1990s.

Chemical castration involves injecting anti-androgens in a person, which lowers the level of
testosterone — the male hormone — in the body, reducing sex drive and the capacity to get
aroused. It is a reversible process, if injections are stopped.

What Is MPA?

The "chemical" in question is the antiandrogen synthetic progesterone, MPA, manufactured

and marketed by the Upjohn Company as Depo-Provera. MPA was first synthesized in 1954
and was initially introduced in 1959 as a treatment for gynaecological disorders. Depo-
Provera was then found to be an effective female contraceptive.8 MPA was first used to
decrease men's sexual drive in 1958.

After years of disagreement over the side effects of MPA, the Federal Drug Administration
("FDA") withdrew its approval of MPA in 1974. Much of the opposition to Depo-Provera's
approval cantered around studies done on dogs (beagles) and rhesus monkeys that resulted in
malignant breast tumours in some of the dogs and endometrial cancer in some of the
monkeys. After nearly a twenty-year ban, however, on October 29, 1992, the FDA again
approved Depo-Provera for use in the United States. In the Physicians' Desk Reference
("PDR"), Depo-Provera is "indicated only for the prevention of pregnancy." But, once
approved by the FDA and marketed by the manufacturer, a drug may be prescribed for
conditions beyond the scope of its "indicated" use. In this case, the non-indicated use is
chemical castration.

What Does MPA Do?

A "castration" occurs in that MPA, when injected into men, causes a reduction in the
production and effects of testosterone

MPA is believed to lower testosterone levels by

 increasing testosterone metabolism by the liver and

 decreasing the amount of LH (luteinizing hormone) and FSH (follicle stimulating
hormone) released

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Types of sex offender

Type I: denies the commission of the crime or the criminal nature of the act.

Type II: confesses to the commission of the crime, but places the blame for the crime on
nonsexual or nonpersonal forces, such as alcohol, drugs, or stress.

Type III: the violent criminal who is motivated by nonsexual gain, such as anger, power, or
violence.

Type IV: is the paraphiliac who exhibits a pattern of sexual arousal, erection and ejaculation,
which is characterized by a specific fantasy or its actualization. MPA has only been
demonstrated to be an effective therapy for paraphiliac.

What exactly paraphiliac is?

The four types may appear distinct, diagnosing a sex offender as a paraphiliac requires:

1. A comprehensive evaluation of the driving forces behind the behaviour as well as the
emotional response to the behaviour.
2. Fundamentally, there are persistent fantasies about some type of deviant sex. In turn,
these fantasies create intense cravings which, if left unsatisfied, result in negative
feelings. Satisfaction of these cravings requires precise recreation of the fantasy.
3. It must be understood that the occurrence of a particular behaviour associated with
paraphiliacs does not make the diagnosis of paraphilia. Rape may be committed as
an act of violence meant to humiliate the woman by either a mentally retarded man
... or by a psychotic man. None of these are paraphilias.
4. However, rape may be committed by one responding to fantasies about coercive sex
and may be the manifestation of a paraphilic disorder.

California's Law

Voluntary Treatment

All this indicates that MPA treatment for sex offenders is effective only on male paraphiliacs
who are willing to undergo the treatment. It is believed that MPA, by reducing the amount of
testosterone in the system, diminishes the "compulsive sexual fantasy" of the paraphiliac. The

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paraphiliac is therefore "no longer motivated to commit sex offenses and is thus more
amenable to psychotherapy."

Unsuccessful Chemical Castration

Arizona v. Christophe1

1. The defendant's pre-sentence report of his first conviction for child molestation
recommended he receive either behaviour modification therapy or chemical
castration.
2. The state instead gave Christopher insight therapy, which was unsuccessful, and
Christopher subsequently molested more children, resulting in a second conviction.
3. Christopher challenged this second conviction based on the state's denial of effective
treatment for his condition, thereby failing to actually offer him an avenue of
rehabilitation.

Section 645 of California Penal Code

Old Version

Section 645 of the California Penal Code mandates that a twice-convicted sex offender of
children under thirteen begin MPA treatment upon parole.

Because it is the first statute of its kind, as soon as a parolee challenges the statute, the
California courts will have the important responsibility of judging the constitutionality and
ethicality of this broadly-worded law.

The "New" Section 645 of the California Penal Code, Amended One

a. Any person guilty of a second conviction of any offense specified in subdivision,

where the victim has not attained 13 years of age, shall, upon parole, undergo
medroxyprogesterone acetate treatment or its chemical equivalent, in addition to any
other punishment prescribed for that offense or any other provision of law.
b. The parolee shall begin medroxyprogesterone acetate treatment one week prior to his
or her release from confinement in the state prison or other institution and shall
continue treatments until the Department of Corrections demonstrates to the Board of
Prison Terms that this treatment is no longer necessary.

1
Arizona v. Christophe 652 P.2d 1031 (Ariz. 1982)

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A number of provisions within section 645 must be emphasized here as they are important to
the analysis that follows: -

 MPA treatment will only be a condition of parole for convicted sex offenders; it will
not be given to incarcerated sex offenders under this law.
 MPA treatment will be mandated for all second-time sex offenders who accept parole,
not just paraphiliacs.
 The drafters’ term MPA treatment as "punishment."
 There is no provision for counselling treated parolees.
 The law also applies to women, for whom MPA serves only as a contraceptive

Montana's Chemical Castration Law, April 19, 19972

1. Montana passed a "chemical castration" law that is quite different from section 645.
2. Montana's law is totally discretionary in that it gives judges the power to order MPA
treatment for a defendant's first or second offense.
3. The law also gives judges the power to order the treatment even if the defendant has
completed his sentence.
4. Montana law does not tie MPA injections into an offender's parole conditions.
5. If the offender refuses the ordered treatment, he will be held in criminal contempt of
court.

Georgia's Chemical Castration Law 1 May 19973

1. Georgia passed a "chemical castration" law that is also discretionary for judges.
2. Importantly, Georgia's law also requires that the offenders receive counseling during
their MPA treatment and that they consent in writing to the procedure in other words,
it is, presumably, voluntary.

Florida's Chemical Castration Law May 30, 1997

1. Requires a medical expert to determine if the defendant is an "appropriate candidate"

for MPA treatment.
2
MONT. CODE ANN.
3
GA. CODE ANN.

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2. Additionally, a defendant who refuses MPA treatment is guilty of a second-degree

felony.
3. Louisiana's "chemical castration" law, which its legislature passed on July 10, 1997,
also is discretionary for judges and has a counselling requirement.

Challenges to Chemical Castration Law

State v. Brown4

In State v. Brown,107 the Supreme Court of South Carolina ruled that a defendant's accepting
surgical castration as a condition of a suspended sentence and probation was invalid as the
condition itself (not the fact that there was a condition) was against public policy.
Additionally, castration, which was considered a form of mutilation, violated South
Carolina's constitutional prohibition against cruel and unusual punishment.

Under the reasoning in Brown, a challenge to section 645 could be brought contending,
among other constitutional rights, that the provisions of the new law violate the Eighth
Amendment's protection against cruel and unusual punishment, notwithstanding an offender's
acceptance-whether informed or coerced-of MPA treatment as a parole condition.

The Eighth Amendment's provision that a state shall not inflict "cruel and unusual
punishments" on individuals is applicable to the states via the Due Process Clause of the
Fourteenth Amendment. California's Constitution also mandates that "cruel and unusual
punishment may not be inflicted."

There is no distinction between the U.S. and California Constitutions as to what constitutes
cruel and unusual punishment.5

Considering What is cruel ?

What constitutes cruel and unusual punishment was set out by the U.S. Supreme Court in
1972 in the death penalty case Furman v. Georgia. 6

4
State v. Brown, 326 S.E.2d 410 (S.C. 1985)
5
People v. Webb, 862 P.2d 779, 806 (Cal. 1993) and People v. Jetter, 540 P.2d 1217, 1218 (Cal. 1975)
6
Furman v. Georgia, 408 U.S. 238 (1972).

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There, Justice Marshall explained that what is considered cruel and unusual punishment
changes with the 'evolving standards of decency that mark the progress of a maturing
society.'

Justice Brennan summarized that, although specific examples did not survive, there were four
general principles by which courts could determine what constitutes cruel and unusual
punishment.

As an "essential predicate" to the following three criteria,

 A punishment must not by its severity be degrading to human dignity.

 Therewith, the punishment must not be "inflicted in wholly arbitrary fashionclearly
and totally rejected throughout society
 or be patently unnecessary.

Importantly, Justice Brennan felt that none of these single principles would ever be blatantly
violated. A court hearing a challenge to section 645 should apply the above criteria to the law
and ask if administering MPA to parolees for which the hormone would have no proven
benefit would be cruel or severe enough to be "degrading to human dignity." Administering
any drug to any person for which there is only the chance of adverse side effects is likely
contrary to established norms in current society. A reasonable court would likely make this
determination.

Can it be introduced in India?

1. After the Nirbhaya incident there was a demand being made to introduce death
penalty in rape cases.
2. However, caution had to be exercised since there are several false rape cases that are
filed in India.
3. It was decided to stick to the provision that a death sentence will be imposed if there
is rape and murder.
4. This meant the section 376 IPC (rape) would be read with Section 302 (murder) in
case of rape and murder.
5. Legal experts point out that if at all there is a decision to introduce chemical castration
then it ought to be added to the existing law that is Section 376.
6. Here it has been proposed that chemical castration shall be used only in cases of child
rape.

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7. For those who rape children, chemical castration would be a better option as it kills
their urge and moreover such crimes are looked as a mental disease.
8. The Government has submitted a draft proposing chemical castration along with an
imprisonment of up to 30 years for rape convicts as part of the anti-rape law in India.
9. The ministry is preparing a detailed bill and the recommended changes are under
review. 
10. Government is also planning to re-define the Juvenile Act and lower their age.
11. One of the accused in the rape case is a juvenile and aged a few months less than 18
years.
12. A view has been expressed by a section that only those below 15 years should be
described as juvenile.

Recent Petition

Supreme Court Women Lawyers Association asks for chemical castration for child rapists.

Close on the heels of the government promulgating an ordinance that provides for death
penalty for those convicted of raping girls below the age of 12, the Supreme Court Women
Lawyers Association (SCWLA) has made a representation to the Prime Minister’s Office,
seeking chemical castration as additional punishment for child rapists.

The PMO has forwarded the petition to the Union women and child development (WCD)
secretary, directing the ministry to take appropriate action. 

Mahalakshmi Pavani, senior advocate and SCWLA president said, “Though, following
ordinance, courts can pronounce death penalty on those convicted of raping girls below the
age of 12, an additional punishment of chemical castration will act as a deterrent.”

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