By: Hardik Maheshwari
Introduction
Chemical castration refers to use of chemicals or drugs to halt sex hormone production, and is a highly controversial subject that has gained importance over the years. In 1979, Justice VR Krishna Iyer, who was the Chief Justice of the Supreme Court at the time, may have been the first person in India to propose chemical castration as a substitute punishment for rape victims. He was said to have stated that voluntary castration is a "better recipe for this hyper sexed human than outright death." Again, following the nation-shaking Nirbhaya event in 2012, there was a discussion on whether chemical castration should be used as a punishment for sexual offences which is proposed by then BJP leader Venkiah Naidu. The government on the same line with Venkiah Naidu put out a draft bill specifying punishment for rape in India with chemical castration and a 30-year prison sentence but eventually the proposal got nullified by Verma Committee in 2013 which was established with the recommendation that changes be made to the Criminal Law to expedite the trial process and increase the severity of punishment for offenders who are charged with sexual assault against women but according to the Verma Committee it defeats basic provisions of human rights and is unconstitutional in nature. The blog argues that chemical castration as the treatment and punishment can be done to reduce recidivism, ensuring that the individual will not be caught repeating similar crimes when he returns to society.
Meaning of Human Castration
Castration is a term for a medical procedure that, depending on the patient, either totally stops or significantly reduces sex desire. There are two kinds of castration: ‘chemical’ and ‘physical.’ A person's testicles are surgically removed in physical castration, and chemical castration involves the use of Medroxyprogesterone acetate (MPA), an antiandrogenic drug that reduces the body's production of ‘gonadotropins’ and can decrease testosterone levels. In the 20th Century, many European countries observed that castrated offenders had a recidivism rate of 1.1-7.4%, while non-castrated offenders had a much higher rate of 50-84%. The results of these programs indicated that decreasing testosterone levels was a critical factor in decreasing repeat offences among a specific group of sex offenders. Researchers in the United States started to explore using chemicals to control hormones after conducting this initial research. This approach was believed to be more beneficial compared to surgical castration because it can be reversed and removes the negative perception associated with physical castration for the individual.
How Chemical Castration has gained Importance over the Years
The most effective, earliest, least expensive, fastest, and most dependable method of stopping many crimes, illnesses, and acts of violence was physical castration in mediaeval times. Similar to a vasectomy, surgical castration completely removes the capacity to procreate. Many European countries have been using surgical castration as a treatment for sexual offenders since 1906; in post-war Germany, this practice was mandated until 1970. In European countries, the surgical castration of sexual offenders is now governed by statute. However, due to concerns about cruel and unusual punishment, surgical castration has been criticized and declared unconstitutional in the United States of America (USA). Hormone suppressors, or chemical castration, were first studied as an alternative to surgical castration in 1966, by providing medroxyprogesterone acetate (MPA) to a bisexual transgender patient undergoing treatment for sexual abuse of their 4-year-old kid, John Money became the first American to be used chemical castration on and the method has shown great success in treating sex offenders.
In the case of Furman vs. Georgia, US Supreme Court laid down that the death penalty was unconstitutional when applied in an arbitrary or discriminatory manner as it violates Eighth Amendment of US Constitution which states cruel and unusual punishments should not be inflicted and chemical castration is not a cruel or unusual punishment. Although, the Gregg v. Georgia case from 1976 led to the reinstatement of death sentence. In terms of chemical castration, all that is required is a simple injection, and the body is not irreparably disfigured. In addition to being less harsh than the death penalty, it allows the offender to reintegrate into society under governmental supervision. Chemical castration lessens the offender's sexual cravings, thereby reducing the risk to society. Moreover, a less invasive technique may not effectively meet the state's goal of lowering the number of rapes.
The reason for introducing chemical castration as a punishment is very specific: to reduce recidivism, to punish sexual offenders in a way that is not cruel, and to lower the number of sexual offenses. The question posed is whether countries around the world are considering chemical castration as a punishment, and the answer is yes.
Following many high-profile sexual offences against minors, Polish President Lech Kaczynski passed a bill in November 2009 authorizing the compulsory chemical castration, the therapeutic use of anti-androgenic medicines to certain sexual offenders.
Pakistan's government enacted two anti-rape laws on November 24, 2020, which stipulate that the perpetrators must be chemically castrated and that special courts must be established for trial purposes. The Criminal Law (Amendment) Ordinance, 2020 and the Anti-Rape (Investigation and Trail) Ordinance, 2020 are the two laws in question. The legislation comes after an incident involving the alleged rape of a woman and her minor daughter in Sindh’s, Kashmore district. There are several other countries like Ukraine, Canada, Denmark, Germany, Israel, Kazakhstan, Norway, Sweden, etc. who have approved for chemical castration.
So, a number of countries have sorted out a way to reduce recidivism and to lower the number of sexual offences by implementing chemical castration as a punishment.
Why should India implement Chemical Castration as a Punishment and the Problems associated with its Implementation
According to Section 376 of the Indian Penal Code, 1860, a man convicted of rape faces a minimum sentence of ten years in jail, with the possibility of a life sentence. The seriousness of the offence is taken into account while determining the penalty. The Indian Legal System is retributive in nature rather than reformative because the infrastructure and ambition for rehabilitation are lacking in the system and also, reformation as a concept is absent in policy-making. But the laws on Chemical Castration as a form of punitive punishment was considered in special cases, as seen in a draft bill proposed after the Nirbhaya incident in 2012. The bill suggested chemical castration along with a 30-year prison sentence for rape in India. However, this proposal was ultimately nullified by the Verma Committee.
In the case of Maru Ram v. Union of India, the court asserts “In general, reformers and psychologists have not been able to lower the recidivism rate of convicted felons. Repeaters have not been deterred by strictness or leniency... Admitting that there is a cure for criminality through rapid social therapy is crucial.” Probation combined with chemical castration may be that therapy, ensuring that the individual will not be caught repeating similar crimes when he returns to society, but being retributive in nature Indian Legal System fails to consider that there could be some cases in which the perpetrator of the rape is not in a healthy mental state and needs to get appropriate medical treatment that may help heal his sexual disorders but depending on the situation, some cases may demonstrate an offender's mindset that is beyond rehabilitation, and therefore, harsher penalties may be necessary. The study conducted by R. Cauley found that the recidivism rates for rapists and child molesters were 46.2% and 36.9%, respectively, these rates were noticeably elevated compared to the rates of other offences, nevertheless the utilization of chemical castration can decrease recidivism rate from above 40% to just 5%. Another study, conducted by Johns Hopkins University on 626 sexual offenders who had been given MPA. Within five years, less than 10% of them re-offended. However, during the same period in America, the recidivism rate for sexual crimes was nearly 65%. These research studies explore the idea that castration can lower recidivism rates for sexual offences but the present punishment for sexual offences in India only includes imprisonment which may extend up-to capital punishment. In 2015, Justice Kirubakaran dealing with a rape case asserts "Traditional laws are not stringent enough to yield any desired positive result. Suggestion of castration looks barbaric, but barbaric crimes should definitely attract barbaric model of punishment,". He asserts this statement after pointing out the increment in rape cases year on year.
Critics of using chemical castration to prevent rape in India argue that it goes against Article 21 of the Indian Constitution. It defeats the requirements of Right to Privacy and personal space of the patient, but these rights may only be breached if the act of chemical castration is done on the criminal without his agreement or it is involuntary castration, but that is not the case here. In the case of Nasiruddin Ali vs. The State of Assam, court asserts that rape is a violation of a victim’s fundamental right Article 21 of the Constitution and a woman's bodily sovereignty and uniqueness are attacked when she is raped.
Conclusion
Incarceration by itself is unable to diminish sexual offences in today's society and, unfortunately, often serves to strengthen the offender's desire to perpetrate these crimes. Sexual crimes are a significant issue for public health, and according to current data, these incidents are on the rise annually. Prevention of re-offending and guaranteeing community safety should be emphasized, even if it entails prioritizing public safety above the rights of perpetrators. Chemical Castration is a useful reformative technique as it discourages the offenders from committing sexual offences, and eventually decreases the recidivism rate. The existing legal system in India is not stringent enough to decrease sexual offences, so chemical castration is proposed as a method to reduce such cases, as it halts sex hormone production.
Comments