CASTRATION OF SEXUAL OFFENDERS: A FOOT TOO DEEP INTO RETRIBUTIVISM
Taiwo .I. Abiodun-Oni
Castration of males and removal of female fallopian tubes for rapists in Kaduna State. Feels like a line from the stone age manual. Extremity of punishment is just another attempt at governments to resort to over regulation to solving every problem on the one hand and a tragic show of lack of dialectical creativity in the law making process which is an art in itself. This process must not be left in the hands of men who are blinded by bloodlust and short fused revenge.
Other than the rising spate of the sexual predations in recent times, it is no news that Nigerian correctional centres are inundated with inmates ranging from awaiting trial inmates to convicted felons and even to condemned criminals. This last set of inmates take up a huge chunk of space in these correctional centres being that it has been ages since any condemned criminal was led to the gallows. Given the population situation in these correctional centres, many state governments are under enormous pressure to find a way to provide relief for the system while still keeping truly dangerous criminals from being released back into society. One of the ways in which these state governments have adopted in addressing this problem is by tackling recidivism. Recidivism is the state of non-repentance from the commission of crime especially from persons who have previously been jailed and subsequently released from prison.
According to official statistics culled from a study, it has been found that child molesters had a 36.9% recidivism rate while rapists had a 46.2 % rate nationally. The simply implication of this is that, more than one in three child molesters will commit a crime again while close to half of all rapists will commit another crime upon being released. In efforts to try to reduce this number, states have instituted a plethora of options.
One of the options that seem to be gaining traction in recent times is the use of actual or chemical castrations especially in Northern Nigeria.
The idea of castration as a punishment did not originate in the United States. It was, in fact, around for centuries before America was even colonized. For example, in ancient times conquering armies would often castrate their captives as punishment for daring to be their enemies. One of the first uses of castration in the United States occurred during the 1800’s, “when slaves were routinely castrated as a punishment if suspected of having relations with white women.
However, the official castration of prisoners as a punishment in the United States truly began around 1899. It was also around this time that the concept of Eugenics first took root in the United States.
Adopting extremity to sentencing is not a strange commodity in the United States as we can see in the case of Buck v. Bell.
In this case, a feeble-minded eighteen year-old woman whose mother was also supposedly feeble-minded was convicted of a crime and then sterilized pursuant to a Virginia law. The Supreme Court ruled that the statute was constitutional stating, “It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for .the imbecility, society can prevent those who are manifestly unfit from continuing their kind”. Till this very day, this opinion has never been overturned, though it has been limited over the years and in fact almost every state continues the practice of sterilizing the mentally retarded in certain circumstances.
Many states in the United States of America practice castration as punishment for sexual offenders, some of these states are; California, Montana, Florida, Louisana and Oregon. Other than the United States of America, other countries like Denmark in 1929, Sweden in 1944, Finland in 1970 and Norway in 1977 also have castration laws.
Naturally, it doesn’t sound pleasant to the ears that a person would have to be castrated or biologically incapacitated in order to stop him from committing a crime. At first thought, it sounds cringeworthy and offensive to the natural order that a sentence that has a similitude to decapitation could be meted out to offenders in the name of punishment. As an addition to that, a bright mind may ruminate over the human rights implications, genocidal interpretation and the cruelty of that sort of punishment. It is on these thought process that the following discussions are held:
First and foremost, I feel it imperative to classify sex offenders into different types not for the purpose of being apologetic towards the offense as a whole but for the purpose of aiding a discussion on the subject of cruelty of offence. These four types are:
- 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 non-personal forces, such as alcohol, drugs, or stress.
- Type III is 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.
Quickly, an aggregation of expert opinion on the subject Depo provera (castration) point to the fact that sexual offenders that fall under Types I-III do not necessarily fall under the justifiable category offenders to which Depo Provera should be administered and that only sexual offenders who fall under Type IV qualify as such.
One potential legal test to determine what is cruel and unusual was outlined by the United States Supreme Court in the case of Furman v. Georgia. In that case, the court outlined the potential test (cumulative) as follows:
- If a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily
- if it is substantially rejected by contemporary society,
- if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes.
To satisfy the above, must be determined where chemical castration falls under each of three prongs: (1) whether the punishment is inherently cruel
(2) whether the punishment is proportional to the crime; and
(3) whether the punishment is excessive in relation to the achievement of legitimate state goals.
Under the first point, chemical castration will probably qualify as inherently cruel. Essentially, inherently cruel punishments are those that are inflicted in wholly arbitrary fashion or clearly and totally rejected throughout society. Therefore, the question is whether stopping a man from being able to have any real sex drive and inflicting an array of side effects is clearly and totally rejected throughout society. It can be argued that the use of chemical castration on sex offenders does meet the standard of being clearly and totally rejected.
If society as a whole finds the concept offensive when forced on a normal person, then why should someone convicted of a sexual offense be treated as less than an average person? However, given the prevalence of chemical castration programs and statutes, the use of Depo-Provera injections on sex offenders is not likely to meet this standard.
The next point is whether chemical castration is proportional to the crime, and the answer is no. When asking whether a punishment is proportional to the crime, it is wise to examine factors such as: how the punishment comports with society’s view of decency, whether the punishment is proportional to other serious crimes, and whether the punishment is consistent with that afforded to similar crimes in other jurisdictions. First, the concept of chemical castration does not likely comport with society’s view of decency, as it involves forcing people to take drugs with many side effects. It is essentially giving the state control of one’s body, which is not considered decent by most of society.
Second, this punishment is not proportional compared to other serious crimes. Most people consider sexual offenses among the worst crimes a person can commit. It is logical to compare the punishment of sexual offenses to the punishment of other horrible crimes such as murder. With murder, drugs are not usually forced on someone unless they are to be given a lethal injection under the death penalty. Instead, more time is spent in prison as a way of keeping the person away from society. This does not comport with the goal of chemical castration: get sexual offenders onto the street quicker while at the same time preventing recidivism. While it is true that states have been civilly committing sex offenders to keep them off the streets longer, that is counter to the purpose of chemical castration. In fact, the only time drugs are administered as a form of punishment is when a person is judged not guilty by reason of mental defect and then given medication as part of their required treatment in a state mental institution.
Comparing that situation to chemical castration does provide several similarities.
For example, the motive and justification behind both options are fairly similar. The common rationale behind civil commitment and chemical castration is the protection of the public in a way that prevents sex offenders from being a danger to society. In that context, treatment, as motive, remains a distant concern. Moreover, criminals found not guilty by reason of mental disease or defect, are not per se being punished. Instead, because they are unable to comprehend that what they did was wrong such criminals are committed and given treatment in an attempt to help them. Conversely, sex offenders are being punished through prison terms and then chemically castrated in an attempt to maintain control over them once they are released. Therefore, given the dis- parity of purpose and reasoning between those criminals found guilty by reason of mental disease or defect and those sex offenders who are forced to undergo chemical castration, a comparison actually is inappropriate.
The final point to be examined is as to whether chemical castration is cruel and unusual is whether the punishment is excessive when compared to the state’s legitimate interest. Chemical castration may actually pass this point. The state has a legitimate interest in exercising its prosecutorial powers protect the public whatever the case might be. One of the fundamental cornerstones of this power is the protection of children hence it is important to have a rundown of what exactly the goals of punishment are:
- Specific deterrence prevents crime by frightening an individual defendant with punishment. General deterrence prevents crime by frightening the public with the punishment of an individual defendant.
- Incapacitation prevents crime by removing a defendant from society.
- Rehabilitation prevents crime by altering a defendant’s behavior.
- Retribution prevents crime by giving victims or society a feeling of avengement.
- Restitution prevents crime by punishing the defendant financially.
Meanwhile, the mind of an untrained law maker is conceptually conditioned to accept that the Ideals of punishment as postulated by Feinberg who mentioned that punishment is a conventional device for the expression of attitudes of resentment and indignation, and of judgments of disapproval and reprobation, on the part either of the punishing authority himself or of those “in whose name” the punishment is inflicted. Punishment, in short, has a symbolic significance largely missing from other kinds of penalties. The same Feinberg added that that punishment must express more than just mere disapproval that it must amount to a symbolic method of hitting back at the criminal and of expressing “vindictive resentment.”
THE CRUEL FACE OF RETRIBUTION
Retribution is the theory that punishment is justified because it is deserved. If one scrolls through the literature on retributivism, it will be almost impossible not to notice an aura of moral entitlement which, in my opinion, is the product of the equation, accepted and advanced by most retributivist scholars, that justice is equals to giving offenders what they deserve. Under retributivism’s spell, proponents of making penalties harsher or of expanding capital punishment feel free to scoff at any suggestion that their favored policies might have more drawbacks than benefits, or might even serve no useful purpose whatsoever. For those are “mere” utilitarian sentiments, unworthy of consideration by the devotees of justice, and a policy need have no “useful” consequences at all so long as it can be perceived as “doing justice” or “giving people what they deserve.
It would therefore for seem that the Kaduna State laws or any other laws that pronounces castration or biological decapitation as punishment for a crime has taken a feet too deep into the murky waters of retributivism.
What could make matters worse would be when the lack of evidence or the manipulation or the concoction of same leads to the conviction of an innocent person who is sentenced to Depo Provera; what then shall we say if the truth of his/her innocence is brought to light in later years after the punishment has been carried out?
A PLACE FOR UTILITARIANISM
There is always a way out of the moral and legal conundrum that castration as a punishment may pose to the criminal justice system, and it seems that this singular way is the consciousness of accepting utilitarianism as the sole, fundamental and conceptual purpose for punishment.
Discussing crimes and punishments, Beccaria quoted Montesquieu where he said that every punishment that does not derive from absolute necessity is tyrannical. The proposition can be stated more generally in the following manner: every act of authority of one man over another that does not derive from absolute necessity is tyrannical. This is the foundation, therefore, upon which the sovereign’s right to punish crimes is based: the necessity to defend the depository of the public welfare from individual usurpations; and the more just the punishments, the more sacred and inviolable the security and the greater the liberty the sovereign preserves for his subjects.
For the utilitarian who regards punishment as bad in itself, a particular punishment will be justified only if the suffering it inflicts is less than the harm caused by the criminal act that would have taken place had there been no punishment. If various forms of punishment would achieve the same result, a utilitarian will opt for the most lenient punishment that minimizes the potential suffering. It follows that if a sentence of capital punishment or the lesser punishment of a term of imprisonment are both equally effective in deterring murder, the utilitarian will choose the lesser punishment and regard capital punishment as unjustified.
RECONCILING UTILITARIANISIM AND RETRIBUDIVISM TO PUNISHMENT
In addition to adopting utilitarianism, it may also be worth the while to reconcile utilitarian and retributive theories of punishment. For utilitarians, cruelty is not seen as necessary to justify punishment nor as a reason for punishment because desert does not look to the consequences of punishment, it simply punishes. For the utilitarian, the only good reasons for punishment relate to the consequences of that punishment. The contrast between the two theories lies in the fact that for utilitarians, the aim of punishment is to control future action, whereas the retributivists see the aim in terms of cruelty. The strength of the utilitarian argument is that rules can be changed according to changes in society, but that no such change is built into theories of retribution. Can a retributivist ever be forgiving or merciful?
During the sentencing process, offenders often say they are remorseful for their actions, and in this sense remorse represents regret and self-blame. Those charged with the task or determining the sentence are urged to accept statements of remorse as mitigating factors. The issue, therefore, is whether genuine remorse should lead a judge towards leniency. If the judge is a utilitarian, he or she will be concerned only about whether a remorseful offender will be less likely to reoffend. However, for the retributivist, the question is whether remorse should mitigate culpability, According to Walker, forgiveness has no degrees but may take the form of “interested” or “disinterested” forgiveness, with the victim being interested and the sentencing authority disinterested.
He suggests that whether from a utilitarian or retributivist viewpoint, the sentencing authority must choose the sentence that is most appropriate, and that a retributivist may take extenuating circumstances into account. He considers, however, that forgiveness, being an act of absolution, should not be considered an extenuating circumstance.
Thus, according to Bean, “forgiveness is a moral sentiment where ill-will is no longer retained. It may occur before or after punishment but does not affect it. Mercy must be distinguished from forgiveness because granting mercy is an act, but forgiveness is an attitude of mind. Mercy may be prompted by expressions of remorse or by a statement that the victim has forgiven the offender. Walker argues that mercy is not equivalent to “reasoned leniency” and that mercy, in effect, suggests other considerations such as proportionality and any suffering experienced by the offender, and mitigation generally.
It just would not seem right to a rational thinking member of society that chemical castration should a viable punishment option in this day and age. Committing a crime against nature feels like enough reason for the non justification of castration of males and the removal of female Fallopian tubes as a means of punishment for sexual offenders especially when the different types of sexual offenders are considered as this piece has discussed above.