February 21, 2006
CASTRATION OF SEX OFFENDERS
By: Sandra Norman-Eady, Chief Attorney
You asked for background information on states that allow or require sex offenders to be castrated.
Eight states allow chemical or surgical castration of sex offenders. They are: California, Florida, Georgia, Louisiana, Montana, Oregon, Texas, and Wisconsin. California was the first state to allow chemical castration when its governor signed into law a measure allowing certain sex offenders to receive medroxyprogesterone acetate (MPA) treatment or its equivalent as punishment for their crime. MPA, an artificial female hormone, is commonly sold under the name Depo-Provera and is used to treat abnormal uterine bleeding, promote menstrual cycles, and treat symptoms of menopause. When used by men, MPA has the effect of reducing their testosterone levels to pre-puberty levels.
Florida, Georgia, Louisiana, Oregon, Montana, and Wisconsin followed California's lead and now allow treatment as punishment for certain sexual offenses. Florida, like California, makes treatment mandatory for repeat offenders. In all of these states treatment is a condition of release from custody and generally starts before the offender is released. In Louisiana, treatment is also a condition of sentence reduction or suspension.
Castration laws in California, Georgia, Louisiana, Montana, and Wisconsin only apply to offenders convicted of sex offenses against minors.
California, Florida, and Louisiana allow offenders who may or must undergo treatment to opt for surgical castration. Texas is the only state that currently allows certain repeat offenders to elect surgical castration without a treatment option.
Proponents of castration argue that it is justified and appropriate. Specifically, they argue that using castration to control sex offenders' irresistible urges to rape or molest again allows them to be released without endangering the public. Opponents argue that the side effects of chemical castration (e.g., life threatening blood clots and serious allergic reactions) are reason for avoiding it. Others have argued unsuccessfully that forced castration violates the protection against cruel and unusual punishment guaranteed by the Eighth Amendment to the U.S. Constitution.
STATE CASTRATION LAWS
Since the mid-1990's states have allowed, and in certain instances required, castration as a way of penalizing sexual offenders or as a condition to their release from custody. Table 1 shows castration laws by state.
Table 1: Castration Laws by State
Laws on Castration
Penal Code § 645
Courts may order first offenders of certain sex crimes committed against children under age 13 to undergo MPA treatment or its chemical equivalent before they are paroled. They must order repeat offenders on parole to undergo such treatment before parole. Offenders may choose surgical castration instead of chemical treatment.
The Department of Corrections (DOC) administers the treatment, which parolees must begin one week before their release from custody and must continue until DOC determines that it is no longer necessary.
The crimes that could subject parolees to chemical castration are:
2. oral copulation;
3. lewd and lascivious acts, including sex acts committed with force, violence, duress, or fear of immediate and unlawful bodily injury to the victim or a third person; or
4. rape by (a) force, violence, duress, or fear of immediate and unlawful bodily injury to the victim or a third person, or (b) threat of future retaliation.
Courts may sentence first offenders convicted of sexual battery to MPA treatment. Courts must sentence repeat offenders of this crime to treatment. “Sexual battery” means oral, anal, or vaginal penetration by, or in union with, another person's sexual organ or another object. “Sexual battery” does not include an act done for a bona fide medical purpose.
A sentence of treatment does not replace or reduce any other penalty the court could impose. The court order must specify the duration of treatment, up to life. In lieu of treatment, a defendant may ask for and a court may order physical castration if it finds the defendant's consent to be intelligent, knowing, and voluntary.
A court order for treatment is contingent upon a court-appointed medical expert's determination that the defendant is an appropriate candidate. The expert must make the determination within 60 days after sentencing.
In cases where a defendant is sentenced to a period of incarceration, treatment must begin at least one week before his release. The DOC administers the treatment.
Any defendant who fails or refuses to appear for, or allow, treatment is guilty of a 2nd degree felony, punishable by up to 15 years in prison, a $10,000 fine, or both.
A sentencing court may require a person convicted of aggravated sexual assault of a child under age 16 to undergo a psychiatric evaluation to determine whether MPA chemical treatment or its equivalent would be effective in changing the offender's behavior. If it would, the court may require treatment as a condition of probation.
An offender who is in custody when sentenced and who is required to undergo treatment as a condition of probation must begin treatment before his release. If he is not in custody at the time of sentencing, he must be taken into custody to begin treatment.
Treatment must continue after the offender is released and until he demonstrates to the court that treatment is no longer necessary. The offender must be advised of the treatment's side effects and must consent to the treatment in writing.
First offenders convicted of sex crimes against minors age 12 or younger and certain repeat offenders must have a mental health evaluation, including a treatment plan, before they are eligible for probation, parole, or a sentence reduction or suspension. Serial offenders are not eligible for probation, parole, or a sentence suspension.
A qualified mental health professional with experience treating sexual offenders performs the evaluation. The treatment plan may include MPA treatment or its chemical equivalent as a preferred method of treatment. The state administers treatment through a licensed medical practitioner. The practitioner must inform offenders of the side effects of treatment. Offenders may choose surgical castration instead of chemical treatment.
Offenders eligible for parole or probation, or granted a suspended sentence must begin MPA or a chemically equivalent treatment as ordered by the court or a qualified mental health professional and medical staff. Incarcerated offenders must begin treatment six weeks before their release. They must continue treatment during incarceration and any suspended sentence, probation, or parole, unless it is determined that the treatment is no longer necessary. Failure to continue or complete treatment is a ground for revocation of probation, parole, or sentence suspension.
Offenders are responsible for the costs of the evaluation, the treatment plan, and the treatment.
The crimes that subject first offenders to the mental health evaluation are:
1. aggravated, forcible, or simple rape;
2. sexual battery, 2nd degree sexual battery, or oral sexual battery;
3. incest or aggravated incest; and
4. aggravated crime against nature (unnatural carnal copulation committed with force and against a minor or person of unsound mind).
A court may sentence an offender who is convicted of sexual assault, rape, or incest involving a minor under age 16 and who is at least three years older than the victim to undergo MPA, its chemical equivalent, or any other medically safe drug treatment that reduces sexual fantasies, sex drive, or both. Offenders who commit these crimes but are not sentenced to treatment may volunteer for it.
Treatment must begin one week before release from confinement and must continue until the DOC determines that it is no longer necessary. Offenders must be informed of the side effects of treatment.
Failure to continue treatment constitutes criminal contempt of court for failure to comply with the sentence, punishable by 10 to 100 years in prison without possibility of parole.
The DOC must establish a pilot treatment program each year for 40 to 50 sex offenders who are eligible for parole or post-prison supervision. The program is to reduce the risk of reoffending by providing the offenders with hormones or antiandrogens, such as MPA treatment.
The department must:
1. screen potential participants, beginning six months before their eligibility for parole or post-prison supervision, to determine their suitability for treatment;
2. refer those most likely to benefit from treatment to a competent physician for a medical evaluation; and
3. refer those who pass the evaluation to a community physician for treatment upon their release on parole or post-prison supervision.
The State Board of Parole and Post-Prison Supervision must require hormone or antiandrogen treatment during all or a portion of parole or post-prison supervision as a condition of such release.
An offender required to undergo a treatment program violates a condition of parole or post-prison supervision and is subject to sanctions if he (1) fails to cooperate in the treatment program or (2) takes any steroid or other chemical to counteract the treatment.
Gov. Code 501.061
Repeat offenders of aggravated sexual assault of a child under age 14, sexual assault of a child under age 17, or indecency with a child under age 17 (i.e., touching or exposing the child for sexual gratification) may elect for orchiectomy (i.e., surgical removal of the testicles). However, orchiectomy cannot be a condition of probation or parole. And no official can consider an offender's decision to get the surgery as a factor in whether he should be released on probation or parole.
In addition to being a repeat offender, the person electing the surgery must: (1) be at least age 21, (2) request the procedure in writing, (3) sign a statement admitting that he committed the offense for which he is currently convicted, (4) undergo psychological and psychiatric evaluations and counseling, (5) submit his informed written consent to undergo the procedure to the physician performing it, and (6) consult with a monitor who has experience in mental health, law, and ethics.
An inmate may change his decision to undergo the procedure at any time before it is performed; however, he will be forever prohibited from having the procedure performed by the department.
Inmates are entitled to mandatory release or parole after they have served two-third of their sentence; except the DOC may deny the release of a serious child sex offender who refuses to participate in pharmacological treatment using antiandrogen or its chemical equivalent. A “serious child sex offender” is someone convicted of having intercourse with a child under age 13 (1st degree assault) or under age 16 (2nd degree assault).