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Citation: 18 Am. J. Crim. L. 1 1990-1991

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Articles
Chemical Castration: MPA Treatment
of the Sexual Offender
EdwardA. Fitzgerald*
Table of Contents
I. Introduction .........................
I1. MPA Treatment .....................
III. Statutory & Common-Law Implications .......
A. Sexual Psychopath Statutes ...........
B. Probation & Parole ................
C. Informed Consent ..................

IV. Constitutional Implications ..............

~
......
......
......
......

10
10
14
17

......
......

25
26

A. The First Amendment ...............

B. The Eighth Amendment .............
...... 31
C. The Right to Privacy - Individual Liberty . . ...... 39
1. The Right to Procreative Choice .......
...... 41
2. The Right to Refuse Medical Treatment . . . . . . .44
3. The Right to Treatment ...........
...... 49
V. The Goals of Criminal Punishment ..........
...... 53
O ......
57
Conclusion ......................
I.

NTRODUCTION

Whether the sex offender should receive treatment or punishment

for his crime poses a unique problem for the criminal justice system.
The enactment of "Sexual Psychopath" and "Sexually Dangerous Person" statutes illustrates the criminal justice system's ambivalence concerning sex offenders. These statutes, first enacted in Michigan in
1937,' were designed to remove the sexual psychopath from the community and provide him with treatment as an alternative to incarcera*Assistant Professor, Department of Political Science, Wright State University. J.D. 1974, Boston
College Law School; Ph.D. 1983, Boston University. The author wishes to express his thanks for the
comments made by Dr. J. Paul Fedoroff and Dr. John Money.
1. Pub. Act. No. 196, 1937 Mich. Pub. and Local Acts at 305; Criminal Sexual Psychopathic
Persons Act of 1939, No. 165, Mich. Comp. Laws 480.501 to 480.509(1948) (repealed in 1966 by
Pub. Act No. 267, effective March 10, 1967). Michigan's sexual psychopath statute was repealed in its
entirety and the legal category of criminal sexual psychopath abolished by Public Act 143, effective

August 1, 1968.

AM. J. CRM. LAW

Vol. 18:1 (1990)

tion.2 By 1971, twenty-seven states and the District of Columbia had

enacted such laws.3 The sexual psychopath statutes were, however,
universally criticized.4 One strain of criticism was that most states
lacked adequate facilities and forms of treatment to justify such commitment.'
As a result, many states repealed their sexual psychopath
6
laws.
With the progress made by medical science there is now a highly
promising treatment for at least one class of sexual offenders. This

treatment involves the administration of medroxyprogesterone acetate

(MPA), a synthetic progesterone manufactured by the Upjohn Company under the trade name Depo-Provera.8 MPA has been used as a
treatment for the class of offenders known as paraphiliacs-those persons compelled to commit sex crimes in order to realize a specific and
particularized sexual fantasy.9 MPA is an antiandrogenic drug which
2. S. BARKEL, J. PARRY & B. WNER, THE MENTALLY DISABLED AND THE LAW, 740 (3d ed. 1985).

3. Comment, The Illinois Sexually DangerousPersonAct: An Examination of a Statute inNeed

of Change, 12 S. IL. U.LJ. 437,437 n.2 (1988).
4. See Swanson, SexualPsychopath Statutes: Summary andAnalysis,51J.CRIM. L. & CRMINOL.
& POL Sc. 215 (1960-1961); Note, The Plightof the Sexual Psychopath:A LegislativeBlunder and
JudicialAcquiescence,41 NOTR DAMELAw. 527(1966); Comment,Evolution ofa ProceduralHybrid:
The Sexual Sociopath Statutes andJudicialResponse,13 CAL. W.L. REV. 90 (1976).
5. See Swanson, supra,at 224-25; Note, supra, at 541-45; Comment, supra,at 123.
6. Comment, supra note 3, at 437 n.2. The current statutes include: CoLO. REv. STAT.
16-13-201 to -216 (1986); CONN. GEN. STAT. ANN. 17-244, 17-245, 17-255 (1986); D.C. CODE ANN.
22-3503 to -3511 (1981 & Supp. 1987); ILL.REv. STAT. ch. 38, para. 105-1.01-105.12 (1985); MAss.
ANN. LAws ch. 123A, 1-10 (Law. Co-op. 1986); MIN. STAT. ANN. 526.09-526.11 (West 1975 &
Supp. 1987); NaB. Rav. STAT. 29-2911 to -2921 (1985); NJ. STAT. ANN. 2C:47-1 to 47-7 (West
1982); OR. Rav. STAT. 426.510, 426.650, 462.670, 426.675, 426.680 (1985); TENN. CODE ANN.
33-6-301 to -306 (1984 & Supp. 1986); UTAH CODE ANN. 77.16.1-.16.5 (1975 & Supp. 1987); VA.
CODEANN. 19.2-300 to -302 (1983); WASH. REv. CODE 71.06.10-71.06.270 (1975 & Supp. 1987).
For an excellent abstract of these statutes, see supranote 2, at 796-801.
7. Progesterone is a class of female hormones.
8. PHysicIANs' DESKREFERENcE,42d ed., 2123-24(1988). MPA is administered "to women with
adequate endogenous estrogen and transforms proliferative endometrium into secretory endometrium."
MPA "inhibits the secretion of pituitary gonadotropin which, in turn, prevents follicular maturation and
ovulation." MPA is also an "adjunctive therapy and palliative treatment of inoperable recurrent, and
metastatic endometrial carcinoma or renal carcinoma."
9. Paraphilias are sex disorders characterized by "recurrent intense sex urges and sexually
arousing fantasies generally involving either 1) nonhuman objects, 2) the suffering or humiliation of
oneself or one's partner (not merely simulated) or 3) children or other nonconsenting persons .... For
some people with a Paraphilia, paraphilic fantasies or stimuli may always be necessary for erotic arousal
and are always included in sexual activity, if not actually acted out alone or with a partner. In other
cases the paraphilic preferences occur only episodically, for example, during periods of stress; at other
times the person is able to function sexually without paraphilic fantasies or stimuli. The imagery in
paraphilic fantasy is frequently the stimulus for sexual excitement in people without a Paraphilia. For
example, female undergarments are sexually exciting for many men; such fantasies and urges are
paraphilic only when the person acts on them or is markedly distressed by them. The imagery in a
Paraphilia, e.g. of being humiliated by one's partner, may be relatively harmless and acted out with a

Chemical Cdstration
reduces the production and effects of testosterone, thus diminishing the
compulsive sexual fantasy.'0 The paraphilic offender undergoing treatment with MPA is no longer motivated to commit sex offenses and is
thus more amenable to psychotherapy that can enable him to adjust to
a new lifestyle."
Although there are some uncertainties regarding MPA treatment,
MPA should be used to treat the paraphilic offender who has been
committed as a sexual psychopath. The treatment will diminish his
compulsive sex drive and allow him to be released from confinement.
Courts should also require MPA treatment as a condition of probation
for the paraphilic offender. An offender granted such probation will
be spared the debilitating effects of incarceration, and will be able to
remain in the community and retain his social and family ties. As a
contributing member of society, he can work to earn the money to pay
for the MPA treatment. While undergoing MPA treatment, the offender will not pose any threat to the community. MPA treatment
offers the paraphilic offender his best chance for rehabilitation.12 In

turn, this rehabilitation will end his cycle of recidivism, thus providing
greater protection for society at large.
3
MPA treatment, which has been termed "chemical castration,"'

poses complex legal questions. The first series of questions revolves

around the statutory and common law implications of the treatment.
Can a convicted sexual paraphiliac be committed for treatment as a

sexual psychopath? Can treatment with MPA be required as a condi-

tion of probation? Can a convicted sex offender give his informed

consenting partner. More likely it is not shared by the partner, who consequently feels erotically
excluded from the sexual interaction. In more extreme form, paraphilic imagery is acted out with a
nonconsenting partner, and may be injurious to the partner (as in Sexual Sadism) or to the self (as in
Sexual Masochism)." AMERIcAN PsYcmAnuc AssOcIATroN, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DisoERmS 279 (3 ed. rev. 1987) (hereinafter referred to as DSM-m1I).
10. P. WALKER, W. MEYER, L. EMORY, & A. RuaN, ANTIANDROGENIC TREATMENT OF THE
PARAPHILIAS, IN GUIDELINES FOR THE USE OF PSYCHOTROPIC DRUGs 427-443 (1984); F. BERLIN, Sex
Offenders: A BiomedicalPerspectiveand a StatusReport on BiomedicalTreatment, in J. GREER AND I.
STUART, THE SE XUAL AGGmSSOR (1983) at 83-123.
11. VALKER, supranote 10; Berlin, supra note 10.
12. WALKER, supranote 10; Berlin, supra note 10; See infra notes 46,47,51, 52
13. Prior to the emergence of antiandrogens the only means to decrease testosterone levels in males
was by castration. Studies of castrated sex offenders in Europe demonstrated that castration diminished
the male sex drive and resulted in minimal recidivism. See Note, Castrationof the Male Sex Offender:
A Legally ImpermissibleAlternative, 30 Loy. L. Rnv. 377, 381 (1984); J. Ortmann, The Treatment of
Sexual Offenders: Castrationand Antihormone Therapy, 3 INT. J. OF L. & PSYCHIATRY 443 (1980);
Bradford, OrganicTreatmentsfor the Male Sexual Offender, 3 BEt-AV. Sci & THE LAw 355,366-68
(1985).

AM. J. CRIM. LAW

Vol. 18:1 (1990)

consent to the treatment? The second series of questions pertains to

the constitutional rights of the convicted sexual paraphiliac. Does the
treatment with MPA intrude upon his freedom of thought which is
protected by the first amendment? Does the treatment constitute cruel
and unusual punishment which violates the eighth amendment? Does
the treatment interfere with the offender's right to procreate which is
protected by the right to privacy? Can the state compel a convicted
sex offender to undergo the treatment without violating his liberty
which is protected by the fourteenth amendment? Does the convicted
paraphiliac have a right to treatment with MPA? The third series of
questions focuses on the criminal justice system. How should the law
view crimes committed by the sexual paraphiliac? Does the treatment
with MPA comport with the goals of criminal punishment? This article
will address and attempt to answer these questions.
II. MPA TREATMENT
MPA has been used as an organic therapy to treat sexual offenders. 4 Sex offenders can be divided into four types. 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 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. 5 The paraphiliac's pattern of sexual arousal can be traced back
to puberty, thus his particular fantasy has been reinforced by orgasm
many times. 16 Recognized paraphilias include pedophilia, exhibitionism, transvestism, voyeurism, frotteurism, fetishism, sexual
14.

Organic therapy refers to procedures which affect or alter through electrical, chemical, or

surgical means a person's thought patterns, sensations, feelings, perceptions and mentation, or to
conditioning techniques using the effects of electrical or chemical intervention into mental functions as
part of the conditioning program. Such therapies include psychotropic drugs, electrical stimulation of
the brain, psychosurgery, and organic conditioning techniques. See Shapiro, Legislating Behavior
Control,47 S. CAL. L. REv. 236,250 (1974).
15. WAL.KER, supra note 10 at 429; Walker and Meyer, MPA Treatmentfor ParaphiliacSex
Offenders, in VIOLENCE AND THE VIOLErr INDIvmuAL 353-73, (J.R. HAYS, T.K. ROBERTS, & K.S.
SOLWAY eds.) (1981).
16. WALKER, supranote 10, at 429 ; Walker and Meyer, supranote 15. The following excerpt
from a letter written by a convicted paraphilic rapist demonstrates the paraphiliacs lack of control over
his actions:

Chemical Castration
sadism, sexual masochism, and other psychosexual disorders including

some forms of rape. 7 MPA has only been demonstrated to be an effective therapy for paraphiliacs."'
The paraphiliac must be properly diagnosed.

Such a diagnosis

cannot be based solely on the offender's sexual behavior because such

behavior may be motivated by a number of different causes.' 9 The
offender's cognitive, emotional, and behavioral states must be examined. 0 The paraphiliac's cognitive state will demonstrate a persistent fantasy about sex, and his emotional state will disclose an erotic
craving which can only be realized by enacting the particular fantasy.
His behavioral state will reveal a stereotypical sex act because his erotic
pleasure is only maximized by the precise realization of the particular
fantasy.21 All of his paraphilias must be diagnosed so that relieving
one paraphilia does not result in its replacement by another sexual
fantasy.22
Once the offender has been properly diagnosed and has undergone
a complete medical examination to ensure that there are no medical
I am 32 years old and in the penitentiary for several rapes. All my life I've felt that
I wasn't normal .. being the sexmaniac I've been. After (each rape) I felt ashamed.
I tried to stop and could for a month or longer, but ended up doing it again. It was
as if I was being driven. I know it (doesn't) sound true or logical, but at a certain
point, I could not control myself... When I was arrested, I was so glad it was finally
over. The only things against the law I've ever done is because of sex. I don't like
to hurt people. Some people have told me I'm just a dirty person, and I did those
things because I wanted to and enjoyed it. This is not true. Maybe I did want to in
a way, subconsciously or something. But I did not enjoy being that kind of a person.
I have cried and hated myself. At a certain point understanding fails me. I can't
comprehend. What makes a person want to do these things?
Berlin and Coyle, SexualDeviationSyndromes, 140 JOHNS HOPKINS MEDICALJOURNAL 119,125 (1981).

17. Money, Forensic Sexology: Paraphilic Serial Rape (Biastophilia)and Lust Murder
(Erotophonophilia),44 Am. L OF PsYcHOTHERAPY 26 (1990). WALKER, supranote 10, at 432; Berlin,
supranote 10, at 92; Walker and Meyer, supranote 15, at 353-57; DSM-III identifies other paraphilias
which do not meet the criteria of any specific categories, such as 1) telephone scatologia (lewdness), 2)
necrophilia (corpses), 3) partialism (excessive focus on part of body), 4) zoophilia (animals, 5)
coprophilia (feces), 6) klismaphilia (enemas), 7) urophilia (urine), DSM-II, supra note 9 at 290.
18. WALKa, supranote 10, at430. Antiandrogens have also been shown to be effective in treating
aggression disorders which are unrelated to sexual dysfunction. See, Kelly and Cavanaugh, Treatment
of the Sexually DangerousPatient,21 CuRRENT PsYcwATrIc THERAPiEs 101, 104 (1982).
19. Berlin and Meinecke, Treatment of Sex Offenders with AntiandrogenicMedication: Conceptualization,Review of Treatment ofModalities, andPreliminaryFindings,138 AM. J. OF PsYCHIATRY
601,601-03 (1981); Berlin, supranote 10, at 86-88.
20. Id.
21. Id.
22. DSM-lll states that "[pleople with a Paraphilia commonly suffer from several varieties: in
clinical settings that specialize in the treatment of Paraphilias, people with these disorders have an
average of from three to four different Paraphilias," DSM-IlI, supranote 9, at 280; WALKER, supranote
10, at 431-32.

AM. J. QUM. LAW

Vol. 18:1 (1990)

complications,2' the offender, if he consents, may be treated with MPA.

MPA is not considered an experimental drug and can be prescribed by
any physician under the Food and Drug Administration Guidelines

relating to the "use of approved drugs for unlabeled indications."24 The

treatment includes a weekly intramuscular injection of a solution containing between 100 mg. and 800 mg. of MPA, with the typical dosage
being 500 mg.2 5 MPA binds to the muscle and is gradually released.
An additional dosage is not generally needed because the body does
26
not build up a tolerance for the drug.
MPA inhibits the release of the follicle-stimulating hormone and

the luteinizing hormone from the anterior pituitary gland in the brain.
This results in a decrease in testosterone production in the testicles.
MPA interferes with the effects of the testosterone and accelerates the
metabolism of testosterone in the body.2 MPA reduces the level of
androgen in the blood stream to that of a prepubescent male.2' MPA,
like all progestinic hormones, acts directly on the brain. 9 MPA
reduces the sexual imagery, thus providing the offender with relief from
23. Kelly, supra note 18, at 103; At the Sexual Disorders Clinic at John Hopkins Hospital, the
following tests are administered to all patients: 1) EKG, 2) CXPA and lat., 3) urinalysis, 4) CBC
with Diff., 5) SMA 6, 6) SMA 12, 7) testosterone, 8) FSH, 9) LH, 10) Millon Clinical Multiaxial
Inventory, 11) Multiphasic Sex Inventory, 12) Weschler Memory Scale, 13) MMPI, 14) BenderGestalt, 15) Affect Balance Scale, 16) SCL 90, 17) Eyesenck, and when necessary, 18) karotyping,
19) medical consults, 20) alcohol and/or drug consult. Letter, RE: Protocol for use of Depo-Provera,
March 7, 1986.
24. Under the Federal Food, Drug and Cosmetic Act, a manufacturer can only label, promote,
and advertise a drug for the uses which the drug has been proved to be safe and effective, This
requires the manufacturer to submit the drug for clinical trials, the results of which will be reviewed
by the Food and Drug Administration. Once a drug has been marketed, the Food, Drug and Cosmetic

Act does not limit the manner in which a doctor may present the drug. Such "unapproved" or
"unlabelled" uses are reported in the scientific journals and become part of accepted therapies. If
the manufacturer is so inclined, he may then undergo the requirements to have the drug approved
for the new usage under2l CFch. 1, part 312 (4-1-88 edition). FDA DRUG BUn., v. 12, no. 1, April
1982, at 2-3.
25. WALKER, supra note 10, at 433-34; Dr. Money points out that there is a noninjectable form
of MPA marketed in pill form. It is not well absorbed through the stomach lining, and is thus
unsatisfactory to treat paraphilias. See Money, Treatment Guidelines:Antiandrogen and Counseling ParaphilicSex Offenders, 13 J. oF SEx & MARrrAL THEAtPY, 219,221 (1987).
26. WAL.KER, supranote, at 433-34; Berlin, supra note 10, at 106-7; Money, supranote 25, at
221.
27. WALKER. supra note 10, at 433-34; Berlin, supra note 10, at 106-7; Money, supra note 25,
at 221; Kelly, supra note 18, at 103; Bradford, The Hormonal Treatment of Sexual Offenders, 11
Buu.ETiN OF mE AAPL 159, 163 (1983).
271
28. This constitutes a reduction from 575 nanograms/100 milliliters to 125 nanograms/100
milliliters, or less. Money, supra note 25, at 220
29. Id.; Berlin and Meinecke, supra note 19, at 603.

Chemical Castration
his compulsive fantasy. Formerly insistent and commanding urges can
be voluntarily controlled. 0 MPA does not cause any change in the
offender's sexual orientation."
A review of the studies indicates the following possible physiological side effects: 1) no change in blood pressure; 2) no change in body
chemistry; 3) the possibility of weight gain; 4) a dramatic decrease in
sperm count; 4) normal basal insulin levels, but also hyperinsulinaemic
response to a glucose load; 6) possible irregular gallbladder functioning
and diverticulitis while on long term therapy; 7) infrequent fatigue or
lethargy; 8) testicular atrophy; 9) diabetis mellitus; 12) no breast
changes.32 Other reported effects include hot and cold flashes,
phlebitis, headaches, insomnia, nausea, nightmares, dyspnea, hyperglycemia, leg cramps, loss of body hair, and increased basal body
temperature.33 It must be noted that any time a drug is used for a new

purpose, all possible side effects are registered. Most of the reported
side effects are extremely rare. All of the side effects are reversible
once the treatment ceases. Erection and ejaculation return within 7-10
days, along with the subjective awareness of the sex drive.'
There have been some reports of impotence, the lack of erections
and ejaculations, by individuals undergoing treatment with MPA. This
claim, however, is "totally untrue. 35 MPA does not cause impotence,
but "erotic apathy. 36 Patients who are undergoing the treatment do
not have spontaneous erections or ejaculations, but they have no trouble
doing so when prompted by a partner or researcher. Patients under
MPA treatment have only reported a minimal diminution of consensual
activity.37 Furthermore, it has been hypothesized that any reduction of
the sex drive can be remedied by adjusting the dosage of the drug.?'

30. Berlin, supra note 10, at 103; Money, supra note 25 at 221.
31. Berlin, supra note 10, at 105; Berlin and Meinecke, supra note 19, at 606.

32.

WALKE R,

supranote 10, at 436.

33. Id.; Berlin and Meinecke, supra note 19, at 605-7; Gagne, Treatment of Sex Offenders with
MPA, 138 AM. J. PsYcHIATRY 644 (1981).
34. Money, supranote 25, at 220-21.
35. WALKER, supranote 10, at 435.

36. Id.
37. Id.
38. Berlin, supra note 10, at 105-106; Berlin and Meinecke, supra note 19, at 603; Money,
Wiedeking, Walker, & Gain, CombinedAntiandrogenic and Counseling Programfor Treatment of
46, XY and47,XYY Sex Offenders, in HoRMoNEs, BEHAVIOR & PSYCHOPATHOLOGY 116 (1976).

AM.

J. CRIM. LAW

Vol. 18:1 (1990)

MPA has been shown to cause breast cancer in beagles and uterine
cancer in monkeys.3 9 This caused the Food and Drug Administration
to ban its use in the U.S. for female birth control. 40 MPA is, however,
marketed as a female contraceptive in over eighty countries.4 Its use
for female birth control has been advocated by the World Health Organization, the U.S. Agency for International Development, and the
International Planned Parenthood Federation.42 Recent studies indicate
that MPA is not carcinogenic to humans. 3
The first use of antiandrogens to reduce the male sex drive was
attributed to Dr. Foote who employed estrogens which caused unwanted
side effects, such as the feminization of appearance."4 In the United
States, the first research with MPA was performed in 1966 by Dr.
Money who treated a male bisexual transvestite who was engaged in
an incestuous relationship with his six year old son. 45 There have been

numerous studies which demonstrate the effectiveness of the antiandrogenic treatment in the United States 46 and Europe. 47 MPA has
39. PHYslciANs' DEsK REFERENCE, supra note 8, at 2123. Several commentators noted, "How
does one weigh a research finding that monkeys given fifty times the comparable dose of DepoProvera for 10 years have developed malignancies, while after 15 years on the market in developed
and developing countries, there is no evidence that the same drug induces cancer in people .. "
Potts and Paxman, Depo-Provera-ethicalissues in itstesting and distribution, 10 J. MED. ETHics 9,
13 (1984).
40. See Chen,Depo-Provera:UnderScrutiny, 123 Sci. NEws 122 (1983); Rosenfield, The Food
andDrugAdministrationandMPA, 249J. AM. MED. Ass'N. 2922 (1983); Sun, Depo-ProveraDebate
Revs Up at FDA, 217 ScL. 424 (1982); Sun, PanelSays Depo-ProveraNot Proved Safe, 226 SCh
950(1984).
41. Potts and Paxman, supra note 39, at 9-10.
42. Report of the Depo-Provera Study Group, Connecticut Department of Correction, 2
(October 4, 1983); Berlin and Krout, Pedophilia:Diagnostic Concepts, Treatment, and Ethical
Considerations,7 AM. 3. OF FORENSIC PSYCHIATRY 13, 25 (1986).

43. Connecticut Department of Corrections, supra note 42; Berlin and Krout, supra note 40,
(citing Sun and Rosenfield).
44. WALKER, supra note 10, at 427.
45. Money, Use of an Androgen-DepletingHormone in the Treatment of Male Sex Offenders,
6J. OF SEx REs. 165 (1970).

46. These studies are listed and reviewed in WALKER, supranote 10, at 427-28; Bradford, supra
note 27; Spodak, Falck, and Rappeport, The Hormonal Treatment of Paraphiliacswith DepoProvera,5 CRIM. JusT. & BEHAV., 304 (1978); Bradford, supra note 13, at 360-65.
47. In Europe, cyproterone acetate (CPA) has been used for antiandrogenic therapy. CPA is
not available in the U.S. Berlin & Meinecke, supra note 19, at 603. The European studies are
reviewed by Ortmann, supra note 13; Bradford, supranote 13. See also McConaghy, Blaszczynski,
& Kidson, Treatment of Sex Offenders with Imaginal Desentization andlor MPA, 77 AcrA
PSYCHIATRICA SCANDEANAVIA 199 (1988); Van Moffaert, Social Reintegration of Sexual Delinquents by a Combinationof Psychotherapyand Anti-Androgen Treatment, 53 AcrA PSYCHIATaiCA
SCANDEANAVIA 29 (1976); Comment, The Use of Depo-Proverafor Treating Male Sex Offenders:
A Review of the Constitutionaland Medical Issues, 16 TOLEDO L. Ray. 181, 185 n.12 (1984).

Chemical Castration
been proven to be a successful treatment for the paraphilic offender
when used under the following conditions. First, the offender volunteers for treatment. Second, the offender lacks an antisocial personality
pathology. Third, the offender does not have a severe substance abuse
problem. Fourth, the dosage is sufficient to suppress the testosterone
production. Fifth, a consenting pair-bonded partner is available.4"
MPA, however, is only a treatment, not a cure.4 9 The treatment
should be accompanied by psychotherapy to help the offender readjust
to a new lifestyle5 0 According to Dr. Money, MPA strengthens "the
threshold or barrier to sexual arousal," therefore, "the individual is
metaphorically on vacation from the demands and insistence of his
sexual drive, and is able to experience an erotic psychosexual realign-

ment in conjunction with counseling."'"

Dr. Gagne refers to MPA

treatment as "the treatment of choice for patients with deviant sexual

behavior. 52
Even though MPA is "extremely effective in decreasing deviant
sexual behavior,"5 3 there are still some unanswered questions regarding
the treatment. First, the long term effects of MPA are unknown. 54

Second, much of the evidence regarding MPA is from studies involving

Sex Offenders:
48. WALKER, supranote 10, at 435; Money and Bennett, PostadolescentParaphilic
Anti-Androgenic andCounselingTherapy Follow-Up, 10 INT.J. MENr. H.ALTH 122 (1981).
49. There are many benefits from MPA treatment. The primary behavior effect, the cessation of
deviant sexual behavior, is very rapid, especially when compared to psychotherapy alone. There are
also several clinical advantages:
1) Patients become optimistic and hopeful that indeed control of their paraphilia is
possible. Many were previously extremely pessimistic and hopeless: they did not
think anything could help.
2) Victims are not being harmed while therapy proceeds.
3) As a result, behaviors such as rape and pedophilia are treatable on an outpatient
basis, which is less costly than inpatient treatment or incarceration.
4) Issues concerning a clinician's duty to violate confidentiality becomes less
problematical because the illegal behavior stops early.
5) Concurrent psychotherapies may proceed without the patient having to deal with
the discouraging problem of weekly or even daily recidivism causing him to ignore
the small gains of weekly psychotherapy.
6) Clinicians are encouraged by the rapid and apparent success of treatment compared
to more traditional therapies where effects are less certain.
WALKER, supranote 10, at 433.
50. WALKER, supranote 10, at 537; Money, supra note 25, at 222-23; Dr. Berlin points out that
even though the medicine decreases the offender's sex drive, he still has to deal with his feelings of
"companionship, intimacy, affection, devotion, or love which may have previously been provided,"
Berlin, supranote 10,at 110-11.
51. Money, supra note 38, at 119.
52. Gagne, supranote 33, at 644
53. Grossman, Research Directions in the Evaluation and Treatment of Sex Offenders: An
Analysis, 3 BEtAv. ScL & THE LAw 421,435 (1985).
54. Id. at 426-29,435-37.

AM. J. CRIM. LAW

Vol. 18:1 (1990)

a small number of subjects or individual case studies. There has been

no large-scale study which demonstrates MPA's long term impact on
recidivism. 5 5 Third, the proper dosage levels for MPA have not yet
been determined. 6 Consequently, research on MPA treatment should
continue."
III. STATUTORY AND COMMON-LAW IMPLICATIONS

After the paraphiliac has been convicted of a sex crime, he may

be incarcerated to serve his sentence, committed to a mental institution
or prison hospital for treatment as a sexual psychopath, or granted
probation with various conditions. If the paraphiliac is incarcerated,
treatment with MPA is irrelevant. If the paraphiliac is committed as
sexually psychopathic, MPA could be used for his treatment. Since
MPA could be employed in a therapeutic setting, the courts could also
require MPA treatment as a condition of probation. In both circumstances, the sexual paraphiliac must give his informed consent for
the treatment.
A. Sexual Psychopath Statutes
In twelve states and the District of Columbia, the paraphilic offender can be committed for treatment as a sexual psychopath or
sexually dangerous person. 8 A sexual psychopath is not considered
to be either insane or normal. A sexual psychopath lacks control over
his sexual impulses and has a propensity to commit sex crimes. Sexual
psychopath statutes provide an alternative to incarceration in the penal
system; rather, they are designed to remove the offender from society
and place him in a setting where he will receive treatment.59 The
state's authority for enacting such statutes rests on its police power 6
or on the doctrine of parens patriae 6 '
55. Id.

56. Id.
57. Id.
58. Comment, supra note 3.
59. BARKEL, PARRY & WEINER, supra note 2, at 749-50; Swanson, supranote 4, at 215.
60. By virtue of the tenth amendment to the Constitution, states have authority to "make, ordain,
and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with
penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare
of the commonwealth and of the subjects of the same." Comm'r v. Alger, 61 Mass. (7 Cush) 53, 85

(1851).
61. Under the doctrine of parens patriae, the State has a sovereign right and duty of guardianship
as to persons found to be non suijurisand dangerous to the health, morals, and safety of its citizens,
and to themselves. State ex rel. Sweezer v. Green, 360 Mo. 1249, 1256, 232 S.W.2d 897 (1952).

Chemical Castration
Sexual psychopath proceedings vary depending upon the jurisdiction.
Such proceedings can be initiated after conviction by the
prosecuting attorney, the court, or the defense. 63 The court orders the
offender to be examined by qualified doctors, who then report their
findings to the court. Since the process is considered civil in nature,
rigorous procedural due process guarantees are not required. 6 Nevertheless, in 1967, the Supreme Court in Specht v. Patterson" found that
the chance of indeterminate confinement under a sexual psychopath
statute warranted such procedural protections as the right "to be present
with counsel, to have an opportunity to be heard, to confront witnesses
against him, to cross examine and to offer evidence of his own. 66 The
Court did not specify the standard of proof to be used in such cases,

although subsequent courts and state legislatures have employed

"beyond reasonable doubt" as the standard of proof.67
After the offender is judged to be a sexual psychopath, he is com-

mitted to a mental hospital or the prison psychiatric ward, possibly for

an indeterminate time. 68 Some states require periodic examinations of
the offender to monitor his condition.6 9 The offender cannot be
released until he is cured or no longer poses a risk to society. 0 The

effect of the offender's commitment as a sexual psychopath on his

sentence varies from jurisdiction to jurisdiction.
Sexual psychopath statutes have been criticized for various

reasons. First, the definition of a sexual psychopath is vague and overbroad.

It fails to distinguish between dangerous and non-dangerous

62. BARKEL, PARRY & 1VEiNER. supra note 2, at 739-43,796-99.

63. In every state except Washington and Illinois where sexual psychopath statutes are used, the
sexually dangerous person statute is part of the criminal proceeding dealing with the sex offense
conviction. In Washington, the Sexual Psychopaths and Psychopathic Delinquent statutes provide
detailed provisions where sexual psychopath and criminal sex offense proceedings occur concurrently.
The Washington act does not expressly state whether the proceeding is criminal or civil in nature.
Illinois allows sexually dangerous person proceedings to commence when charges are filed. Comment,
supra note 3, at 452 n.93.
64. Early challenges to such statutes argued that such laws were unconstitutionally vague and the
treatment of sexual psychopaths violated equal protection clause. The Supreme Court rejected both
assertions in Minnesota ex rel. Pearson v. Ramsey County, 309 U.S. 270 (1940); BARKEL, PARRY &
WEwIR, supranote 2, at 740-41.
65. Specht v. Patterson, 386 U.S. 605 (1967).
66. Id. at 610.
67. BARIKE., PARRY & WEiNER, supra note 2, at 741.
68. Presently only five jurisdictions allow indeterminate confinement: Colorado, District of
Columbia, Illinois, Massachusetts, and Minnesota. Id.
69. Swanson, supra note 4, at 218.
70. Id. at 218-19; BARKuL, PARRY & WENER,supra note 2, at 741.
71. Swanson, supra note 4, at 218-219; BARK., PARRY & WatNE, supra note 2, at 796-99.

AM. J. CRIM. LAW

Vol. 18:1 (1990)

offenders.72 Second, the sexual psychopath can be confined in a mental

hospital for a period of time which is greater than the sentence for his
offense.73 Third, there is no justification for treating sexual offenders
differently than other criminal offenders. 74 Fourth, if there is no treatment or only inadequate treatment available, such commitment constitutes cruel and unusual punishment. 5 Fifth, sexual psychopath
proceedings lack adequate procedural due process guarantees.7 6 Sixth,
the proceedings violate the offender's right to a jury trial, his privilege
against self-incrimination, and constitute double jeopardy.7 Despite
this criticism, the courts have upheld sexual psychopath statutes.78
In 1986, the Supreme Court dealt with Illinois Sexually Dangerous
Person Act 9 in Allen v. Illinois. The Illinois Sexually Dangerous
Person Act allows the commitment proceedings to commence when
criminal charges are filed against the offender. There is no necessity
of a criminal conviction.8 ' The offender is examined by two qualified
psychiatrists who present their report to the court.82 Under the Illinois
statute, the state must show that the offender 1) was under the influence
of the disorder for one year prior to the offense, 2) possesses criminal
propensities to commit sex offenses, and 3) demonstrates propensities
for sexual assault by his action. 3 Allen asserted that the introduction
of the psychiatric report violated his fifth amendment privilege against
self-incrimination. The Court, rejecting Allen's contention, held that
since sexually dangerous person proceedings were civil in nature, the
fifth amendment privilege was inapplicable. 4
If the paraphiliac is committed as a sexual psychopath, he has a
right to treatment for his condition. 5 His right to treatment is the quid
72. Swanson, supranote 4, at 220-21.
73. Id. at 221.
74. Id. at 222.
75. Id. at 224-25.
76. Id. at 223-24.
77. Id.
78. There has been only one case in which a sexual psychopath statute was declared unconstitutional. In People v. Fontczak, 286 Mich 51, 281 N.W. 534 (1938), the Michigan Supreme Court held
that the Michigan Sexual Psychopath Act was unconstitutional because it deprived the defendant of trial
by a jury of the vicinage.

79. ILL. REv. STAT., ch. 38, paras. 105-1.01-105.12 (1985).

80. 478 U.S. 364 (1986).
81. ILL. REv. STAT., ch. 38, para. 105-3 (1985).
82. ILL REv. STAT., cl. 38, para. 105.4 (1985).
83. ILL. REV. STAT., cl. 38, para. 105-1.01 (1985).

84. Allen, 478 U.S. at 375.

85. B.icu., PARRY & WEER, supra note 2, at 742-743.

Chemical Castration
pro quo for his loss of liberty resulting from the confinement.86 The
right to treatment for sexual psychopaths has been recognized by both
state87 and federal courts. 8 For example, in Millard v. Cameron, an
offender was committed for an indefinite period as a sexual psychopath
after being charged with exposing himself, a misdemeanor punishable
by ninety days imprisonment.89 The D.C. Circuit Court held that confinement under the District of Columbia's sexual psychopath statute
was "justified only on a theory of therapeutic treatment."9 The court
found that individuals committed as sexual psychopaths were referred
to as "patients" because "the title essentially provides for treatment,
rather than punishment." 9' The court stated that "the lack of treatment

destroys any othenvise valid reason for the differential consideration

of sexual psychopaths. 9 2
The treatment which is given to the sexual psychopath should afford him the possibility of rehabilitation. The Ninth Circuit Court, in
Ohlinger v. Watson, held that the opportunity for rehabilitation was
constitutionally required for sex offenders who were given indeterminate sentences under an Oregon statute.93 The court determined that
since these offenders were committed for treatment, their treatment had
to afford them "a realistic opportunity to be cured or to improve their
mental condition."' The lack of funds, staff or facilities could not be
offered as an excuse for "the failure to provide appellants with that
treatment necessary for rehabilitation." ' Since MPA provides the most
effective treatment for the rehabilitation of the paraphilic offender,96
MPA treatment should be offered to him. Furthermore, the existence
of MPA treatment legitimizes the paraphiliac's confinement as a sexual
psychopath.
86. See infra notes and text, section IHI-c-3.
87. Commonwealth v. Page, 339 Mass. 313, 159 N.E.2d 82, 85 (1959); In re Moulton, 96 N.H.
370,77 A.2d 26, 28 (1951);In re Maddox, 351 Mich. 358,88 N.W.2d 470,476 (1958); In re Kemmerer,
309 Mich. 313, 15 N.W.2d 652, 653 (1944).
88. Miller v. Overholser, 206 F.2d 415,419 (D.C. Cir. 1953).
89. 373 F.2d 468 (D.C.Cir. 1966).
90. Id.at 473.
91. Id.

92. Id.
93. 652 F.2d 775 (9th Cir. 1980). The statute at issue, OR. REv. STAT. 137.111 (repealed 1971),

was not Oregon's "Sexually Dangerous Persons Act," OR.REv. STAT. 426.5 10 et seq.

94. Id. at 778.

95. Id. at 779.
96. See supra notes 10, 38, 52, 53.

Vol. 18:1 (1990)

AM. J. CRIM. LAW

B. Probation & Parole

Courts should prescribe MPA treatment as a condition of probation

for the paraphilic offender. According to the Supreme Court, probation
"is the attempted saving of a man who has taken one wrong step and
whom the judge thinks to be a brand who can be plucked from burning
at the time of the imposition of the sentence." 97 Probation is a "creature
of statute," thus probation conditions are dependent on the statutory
language. 98 When a convicted offender is granted and accepts probation, he may be released from custody. 99 The court retains jurisdiction
over the offender for a period of time which can be no longer than the
maximum term for the offense."r
Whether probation is viewed as

either an "act of grace" by the trial judge or a contract between the

offender and the state, the judge retains broad discretion to prescribe
conditions which the offender must follow."0 ' Such conditions should
02
not be "unduly restrictive of the probationer's liberty or autonomy."'
Probation is a substitute for prison. The judge must formulate
conditions which ensure that the probation furthers the purposes of the
criminal law. To serve this goal, the probation conditions must be
"tailored to meet the special problems of particular offenders."'0 3 The
court can require an offender to undergo medical and psychiatric care
as a condition of probation. ' 4 Probation conditions can infringe on
the constitutional rights of the convicted offender." Probation conditions are acceptable as long as they are reasonably related to the
rehabilitation of the offender; protect the public; deter future criminal
acts by the offender and others; condign punishment; or any of the
aforementioned'0 6 Probation is part of the composite sanction imposed
for the violation of the law. The legitimacy of probation conditions
97. U.S. v. Murray, 275 U.S. 347,358 (1928).
98.

G. KILUNGER, H. KERPER & P. CROMWELL, PROBATION AND PAROLE IN THE CRIMINAL JUSTICE

SysTuM 34,39-40 (1976).

99. In some jurisdictions the court may order a term in jail as a condition of probation. Id. at 76.
100. Id. at 84-87; AMIcAN BAR ASSOCIATION, STANDARDS FOR CIMINAL JUSTICE 18:2-3(b)
(1980)(hereinafter referred to as ABA).
101. U.S. v. Tonry, 605 F.2d 144, 148 (5th Cir. 1979); U.S. v. Consuelo-Gonzalez, 521 F.2d 259,
264 (9th Cir. 1975); See also Note, JudicialReview of ProbationConditions, 67 COLUM. L. R. 181
(1967) and J. Best, P. Birzon, ConditionsofProbation:An Analysis, 51 GEo. LJ.809 (1963).
102. ABA, supranote 100, at 72,90-94; Consuelo-Gonzalez, 521 F.2d at 263.
103. Tory, 605 F.2d at 148.
104. ABA, supranote 100, at 72,97-99; KiLLINGER supra note 98, at 75.

105. Tonry, 605 F.2d at 148; Consuelo-Gonzalez, 521 F.2d at 264; See also Note, supra note 101;
Best, supranote 101.
106.

Tonry, 605 F.2d at 148.

Chemical Castration
must be viewed in this manner, not in isolation. 7 Probation conditions
"are means to an end, not an end in themselves."'0 8
Parole, like probation, is governed by statute. A convicted offender serves part of his sentence, then is released into the community
under state supervision for the remainder of his sentence.'0 9 Parole
boards are executive agencies statutorily empowered to regulate the
parole process. Due to vague statutory language, parole boards have
great discretion in deciding whether to award parole."0 The parole
board generally considers the possibility of recidivism, the welfare of
society, the offender's conduct while in prison, and the sufficiency of
the parole program."' Parole conditions, which are similar to probation
requirements, have been deemed constitutionally acceptable." 2 Parole
conditions, however, can be more stringent because the parolee is "con-

structively a prisoner of the state....

Since the acceptance of parole,

like probation, is contractual in nature, the offender can reject parole.""

Probation and parole both reflect an overriding concern with the
rehabilitation of the offender." 5 The American Bar Association recommends that probation should be utilized, instead of incarceration, in the
appropriate cases for several reasons. First, probation maximizes the
individual's liberty while vindicating the authority of the court.
Second, probation eases the re-integration of the offender into the community. Third, probation minimizes the hidden costs which imprisonment places of the offender's family, such as separation and a reduced
income. Finally, probation represents the most economical form of
correctional supervision." 6
Parole also serves other noteworthy goals. Parole helps reduce
the inequities resulting from judicial and prosecutorial discretion, and
provides an incentive that helps to reduce violence in prisons. Parole
helps to relieve overcrowding in prisons. Parole protects the public
because the state maintains supervision over the parolee."'
107.
108.
109.
110.
111.
112.
113.
114.
115.
116.

Id.

State v. Moretti, 50 N.J. Super. 223, 141 A.2d 810, 823 (NJ. Super. Ct. App. Div. 1958).
ABA, supra note 100 at 12,201.
Id. at 249, 255.
Id.at 249-51.
Id. at 278-79.
Id., citingIn re Heckman, 90 Cal. App. 700, 266 P. 585 (Cal. Ct. App. 1928).
Id. at 54-55,279.
Id. at 249-50; Ton-y, 605 F.2d at 147-48; Consuelo-Gonzalez, 521 F.2d at 263-64.
ABA, supranote 100, at 75-76; See alsoNote, ProbationConditionsandthe FirstAmendment:
When Reason Isn'tEnough, 17 CoLuM. L L. AND Soc. PROBS. 45,54 (1981).

117. KiLLNGER, supra note 98, at 200-02.

AM. J. CRIM. LAW

Vol. 18:1 (1990)

Critics assert that MPA treatment should not be required as a

probation condition for several reasons. First, probation conditions
must be reasonably related to the crime committed and to the future
criminality of the offender. Since rape is crime of hatred and anger,
treatment with MPA, which only suppresses the offender's sex drive,
is unrelated to the sex offense." 8 Second, the probation conditions
must be capable of being fulfilled during the term of probation. Since
MPA is only a sexual suppressant, it would have to be used for life
to be effective. This would constitute an unacceptable health risk for
the offender." 9 Finally, the cost and general lack of availability of
MPA treatment should preclude its use as a condition of probation. 20
Requiring a paraphilic offender to undergo treatment with MPA
should be an acceptable condition for probation or parole (hereinafter

referred to as probation). The recognition of paraphilia in the Diagnostic and Statistical Manual III demonstrates that sexual offenses are
not solely motivated by anger and hatred.' 2 ' In some cases, sexual
offenses have a biological basis and, in these case, MPA treatment is
reasonably related to the sexual offense committed. 22 The treatment
is offered to the paraphiliac who is compelled to commit sex crimes
in order to satisfy his incessant erotic fantasy. The treatment frees the
offender from his compulsive sex drive, the inconvenience of spontaneous erections, and the fear of relapse, thus making him amenable
to psychotherapy which will help him to reorder his life. While undergoing the treatment, the paraphiliac poses a minimal threat to the
public. The treatment with MPA increases the offender's autonomy
by eliminating his intrusive fantasy and allowing him to control his
behavior.'2
Judicial acceptance of MPA treatment as a condition of probation
should result in its greater availability. Law enforcement officials can
easily monitor MPA treatment.1t24 The offender can be required to arrange for the treatment with a doctor or at a clinic.a2 If the offender
118. Green, Depo-Provera, Castration, and the Probation of Rape Offenders: Statutory and
ConstitutionalIssues,12 U. DAYTON L. RaV. 1, 13 (1986).
119. Id. at 14.
120. Id. at 14; Connecticut Department of Corrections, supranote 42, at 8.
121. DSM-I, supra note 9.
122. Tomy, 605 F.2d at 148; Consuelo-Gonzalez, 521 F.2d at 263-64.

123. Seesupranotes 8-12,50and accompanying text; Seealsoinfranotes 125-26 and accompanying

text.
124.

Consuelo-Gonzalez, 521 F.2d at 266-7.

125.

In 1981, there were more than 50 centers in the U.S. where Depo-Provera was being used

to treat sex problems. Berlin and Coyle, Sexual Deviation Syndromes, 149 JOHNS HoPKINS MED. J.

Chemical Castration
fails to receive his shot, the probation department will be notified and

the offender's probation can be revoked.126 Furthermore, the offender

cannot counteract the effects of MPA treatment by taking testosterone

supplements." 7
The probation of the offender under MPA treatment represents the

most efficient use of the state's resources.128 It is very expensive to

incarcerate offenders. Society also loses the productive endeavors of
the offender while he is incarcerated. Paraphiliacs are present at all

levels of society. 29 Probation of these offenders under MPA treatment

allows them to remain in the community where they can earn money
to pay for the treatment and to support their families. 130 Thus, MPA
form of clinical management
treatment is "probably the most effective
131
for the sex offender on probation.
C. Informed Consent
The common law doctrines of assault and battery protect an individual from impermissible touching and the apprehension of such
contact.132 These common law principles apply to medical treatments
as well.'
Since probation is conditional'34 and MPA treatment is an
innovative therapy, 135 the convicted paraphiliac must give his informed
consent for the treatment.

119, 123 (1981). Depo-Provera treatment programs have been established at The Sexual Disorders
Clinic of John Hopkins Hospital, Isaac Ray Center of Rusk Presbyterian St. Lukes Medical Center,
Chicago and the New Hampshire State Hospital. Individualized treatment is conducted by Dr.
Randolph Read (San Diego) and Paul Wacker (San Francisco). See Hormone Treatmentfor Sex
Offenders, 14 Crim. Just. Newsletter, March 28, 1983, at 3; Chi. Tribune, February 27, 1983, 12,

at 1.

126. Uphoff, Depo-Proverafor the Sex Offender: A Defense Attorney's Perspective,20 CRtM.
L. BULL 430,440-44 (1986).
127. Ortmann, supra note 13, at 451.
128. ABA, supranote 100, at 75-76; contra Halleck, The Ethics of AntiandrogenTherapy, 138
AM. J. PSYCHIATRY 642 (1981).
129. Berlin & Meinecke, supranote 19, at 606.
130. Id.; At the Sexual Disorders Clinic at The Johns Hopkins Hospital, the inpatient evaluation,
which involves 3 to 4 weeks of hospitalization, ordinarily costs between $10,000-$14,000. Brochure
for Sexual Disorder Clinic-Johns Hopkins University.
131. Cordoba and Chapel, MPA Antiandrogen Treatment of Hypersexuality in a Pedophiliac
Sex Offender, 140 AM. J. PSYCHIATRY 1036 (1983).
132. Plotkin, Limiting the Therapeutic Orgy: Mental Patients' Right to Refuse Treatment, 72
Nw.U.L. REv. 461,485 (1977).
133. Id. at 486.
134. KILUINGER, supra note 98, at 39-40.
135. FDA DRUG BULL., supranote 24, see infra notes 153,256-62 and accompanying text.

AM. J. CRIM. LAW

Vol. 18:1 (1990)

The doctrine of informed consent requires the physician to provide

the individual with all the information relevant to his treatment. The
individual must then choose, in accordance with his values and judgment, whether to undergo the treatment. The individual's decision
should be controlling throughout the treatment, and the individual may
reject the treatment or withdraw from the treatment at any time, even
if the treatment is judged to be beneficial. 3 6 The doctrine of informed
consent recognizes the individual's autonomy and integrity.'37 The individual has the right to act as a self-determining being whose physical
and psychological personhood are protected from unwarranted intrusions.'
The D.C. Circuit of Appeals in Canterbury v. Spence stated that
"the root premise" of the doctrine of informed consent "is the concept
fundamental in American jurisprudence that every human being of adult
years and sound mind has the right to determine what shall be done
with his own body."' 139 The doctrine of informed consent also provides
other societal benefits. First, it helps patients to adjust to their treatment and its outcomes. Second, it prevents inappropriate and unnecessary procedures. Third, it improves the physician's decision-making
ability. Finally, it makes society aware of the nature of ongoing research. 4
There are different standards for informed consent. The majority
of jurisdictions use the professional standard in the physician's community to determine the adequacy of the disclosure. This standard,

which is established by expert testimony, reflects what the reasonable

physician in the community would divulge to a patient in a similar
situation. 4' Since physicians tend to be uncommunicative, a minority
136. Canterbury v. Spence, 464 F.2d 772,779-83 (D.C. Cir. 1972); Cobbs v. Grant, 8 Cal. 3d 229,
104 Cal. Rptr. 505,502 P.2d 1, 10-11 (1972); Andrews, Informed Consent Statutes and the Decisionmaking Process, 5 J. LEGAL MED.163-65 (1984); Woody, Legal and Ethical Concepts Involved in
Informed Consentto Human Research, 18 CAL. W.L. REV.50,61-63 (1981).
137. Andrews, supranote 136, at 165; Plotkin, supra note 132, at 486; L KAIz, EXPERMENTATiON
WrrH HUmAN BEINGS 523-24 (1972) stated, "Most clearly, requiring informed consent serves society's
desire to respect each individual's autonomy, and his right to make choices concerning his own life."
138. Id. One commentator stated that"the purpose of requiring the patient's consent to treatment is
to protect his physical and psychic integrity against unwanted invasions, and to permit the patient to act
as an autonomous, self-determining human being." Meisel, The "Exceptions" to the Informed Consent
Doctrine:Striking a Balance Between Competing Values in MedicalDecisionmaking, 1979 Wis. L.
Rsy. 413,420.
139. Canterbury, 464 F.2d, at 778.
140. Andrews, supranote 136, at 164-75; KArz, supra note 137.
141. Andrews, supranote 136, at 176-77; Canterbury, 464 F.2d at 783-86.

Chemical Castration
of jurisdictions has moved to a reasonable patient standard, which
reflects what the reasonable patient should know to make an informed
decision regarding the treatment.142 The scope of disclosure is determined by the patient's need.43 Physicians are required to divulge all
material risks to the patient.
The D.C. Circuit Court in Canterbury v. Spence stated that a "risk
is thus material when a reasonable person, in what the physician knows
or should know to be the patient's position, would be likely to attach
significance to the risk or cluster of risks in deciding whether or not
to forego the proposed therapy."'"4 Furthermore, the court identified
four factors which should be divulged to the reasonable patient regarding any treatment: the risks, the benefits, the consequences without the
145
treatment, and the alternatives.
The criteria established in Canterbury can be used to define what
the paraphiliac must be told regarding treatment with MPA. The risks
of the treatment are possible short-term physiological side effects and
unknown long-term effects.'
The benefits of the treatment are that
the offender will be relieved of his compulsive sexual fantasy and
therefore be amenable to psychotherapy 47 The offender will be able
to return to the community and there will pose only a minimal risk to
the public.
Without the treatment, the offender will remain institutionalized
or will be incarcerated. Institutionalization or incarceration without
treatment will not eliminate the paraphilia, thus the offender will continue to pose a threat to society when he is released. 48 Finally, other
alternative forms of therapy
have not proved to be effective when deal49
ing with paraphiliacs

142.

Andrews, supranote 136, at 176-77; Canterbury, 464 F.2d at 786-88.

143. Andrews, supra note 136 at 176-77; Canterbury, 464 F.2d at 786-88.
144. Canterbury, 464 F.2d, at 787.

145. Id. at 787-89.

146. See supra notes 30-34 and accompanying text.
147. See supra notes 50-53 and accompanying text.
148. Van Moffaert, supranote 47, at 29.
149. The more traditional psychiatric approaches to treating paraphiliacs, such as psychotherapy,
behavior modification, surgery, institutionalization, and anti-psychotic or anti-depressant drugs, have
only shown limited results. Kelly, supra note 18, at 102; WALKER, supra note 10, at 437-38; Walker
and Meyer, supranote 15, at 357-58; Berlin, supranote 10, at 100-03, 111-14; Berlin and Meinecke,

supra note 19, at 602-03; Ortmann, supra note 13, at 447-51. Recent research indicates that other
pharmacologic products have a paraphilic suppression effect. These include carbamazepine (Tegretol),
buspirone hydrochloride (BuSpar), and lithium carbonate. See Money, supra note 17, at 35, citing
Goldberg and Buongiomo, The Use of Carbamazepinefor the Treatment of Paraphiliasin a Brain

AM. J. CRIM. LAW

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There is some uncertainty regarding the long term effects of treatment with MPA.150 Some critics assert that this lack of knowledge
precludes truly informed consent.t 5 ' This criticism fails to recognize
that the informational component of the informed consent doctrine only
requires that all known information pertaining to the treatment be
presented to the individual. 52 The existence of uncertainty does not
negate informed consent. Every time an individual is treated by a
physician, there is a degree of uncertainty because the results are not
always predictable.'
There are risks whenever an individual takes a
54
drug, and it goes without saying that society and the individual must
accept a certain degree of inherent risk. 55 Furthermore, any long term

risk must be discounted because the offender will only be required to

DamagedPatient,12 INT. J. PSyctrATRY MED. 275 (1982-83); Federoff, Buspirone Hydrochloridein

the Treatment of Transvestic Fetishism, 49 J. CLINIcAL PsYcHiATRY, 408 (1988); and Cesnik and
Coleman, Use ofLithium Carbonatein the TreatmentofAutoeroticAsphyxia 43 AM. J. PSYCHOTHERAPY
277 (1989).
150. Berlin and Meinecke, supra note 19, at 603, point out that "a controlled double-blind study on
the use of medication has not been done;" WALKER, supranote 10 at 436-8; Money, supranote 25, at
221. This should be done, possibly using intramuscular injections of fluphenazine decanoate (a
medication with similar side effects that does not reduce testosterone) as a pharmacologically active
control. Berlin and Coyle, supranote 125, at 123.
151. Green, Depo-Provera, Castration,and the Probation of Rape Offenders: Statutory and
ConstitutionalIssues, 12 U. DAYTON L. REv. 1, 15 (1986); Halleck, supranote 128. See also Marco
and Marco, Antabuse: Medication in Exchange for a Limited Freedom-IsIt Legal?, 5 AM. J. LEOAL
MED. 295,301-07 (1980).
152. Comment, Kaimowitz v. Departmentof MentalHealth, 54 B.U.L. Rv. 301,316-19 (1974).
153. Cowan and Bertsch, Innovative Therapy, 5 J. LEGAL MED. 218, 220 (1984). As Dr. Michael
Shimkin, physician and cancer research specialist states, "Medical experimentation on human beings,
in its broadest meaning and for the good of the individual patient, takes place continually in every
doctor's office." Shimkin, The Problemof Experimentationon Human Beings: The Research Worker's
Pointof View, 117 SCIEtC 205(153).
154. WALKER, supra note 10, at 439-40, points out that there are many untested drugs presently
being prescribed; FDA DRUG BULL. supranote 24; Cowan, supra note 153; Potts and Paxton, supranote
39, at 11-9. Before a drug is approved for a particular use, it must undergo a series of animal and human
tests. This can be a very long and costly process. The animal tests are used to determine the drug's
carcinogenicity. Subsequent human testing is generally done in phases. Phase I involves a small group
of volunteers, Phase 11100 or more individuals, and Phase In clinical trials on thousands of individuals,
to determine the drugs efficacy and safety. The Food and Drug Administration regulates the testing by
granting licenses to investigate new drugs (IND) and by approving the new drugs on the basis of the
trials. All of this testing simply demonstrates if it is responsible to have the drug used by a large group
of individuals. The testing does not conclusively demonstrate that the drug is safe or risk free. As the
drug moves from clinical trials to widespread usage unpredictable effects can surface. Every new drug
is essentially "an experiment on our own species." The safety of a drug can only be determined after
prolonged and extensive human use. Potts and Paxton, supranote 39, at 11.
155. Comment, supra note 47, at 195-99.

Chemical Castration
remain on MPA treatment during the term of his probation or his sen-

tence.

156

Another aspect of the doctrine of informed consent pertains to the

voluntariness of the offender's consent.15 7 The possibility of early
release from confinement or probation, upon the condition of under-

going MPA treatment, provides a strong incentive for the convicted

sex offender to consent to such treatment. Critics contend that since
a convicted offender will go to great lengths to retain his freedomincluding bartering his body-voluntary consent to MPA treatment is
precluded. 5 This position is dubious. Offering a sexual psychopath
MPA as a form of therapy or requiring MPA treatment as a condition
of probation does not constitute duress which vitiates the voluntariness
of the paraphiliac's consent.
Prisoners participate in medical experiments to relieve boredom,
59
to earn money, to improve living conditions, and to help get released.
Despite these benefits, the poor volunteer rate in medical experimentation programs demonstrates that prisoners do not feel compelled to
participate in such programs.' 6 Furthermore, the prisoners who do

156. This requirement follows the dictate of Norval Morris who stated, "power over a criminal's
life should not be taken in excess of that which would be taken were his reform not considered as one
of our purposes." Morris, Impediments to PenalReform, 33 U. Cm. L. REv. 627, 638-39 (1967).
157. The Nuremberg Code states that:
1. The voluntary consent of the human subject is absolutely essential. This means
that the person involved should have legal capacity to give consent; should be so
situated as to be able to exercise free power of choice, without the intervention of any
element of force, fraud, deceit, duress, overreaching, or other ulterior form of constraint
or coercion; and should have sufficient knowledge and comprehension to enable him
to make an understanding and enlightened decision. The latter element requires that
before the acceptance of an affirmative decision by the experimental subject there
should be made known to him the nature, duration and purpose of the experiment; the
methods and means by which it is to be conducted; all inconveniences and hazards
reasonably to be expected; and the effects upon his health or person which may possibly
come from participation in the experiment. The duty and responsibility for ascertaining
the quality of the consent rests upon each individual who initiates, directs, or engages
in the experiment. It is a personal duty and responsibility which may not be delegated
to another with impunity.
Cited in Kaimowitz v. Michigan Department of Mental Health, No. 73-194-AW (Cir. Ct., Wayne
County, Mich., July 10, 1973), 1 Mental Disability Law Rep. 147, 150 (1976).
158. Green, supra note 118, at 16.
159. Bailey v. Lally, 481 F. Supp. 203,215 (D.Md. 1979); KAra, supranote 137; Woody, supra

note 136, at 69; ANNAS, GLANiz, KArz, INFOniED CONSENT TO Huii

(1977).
160. Bailey, 481 F. Supp. at 220.

EXPERIMENTATION, 103-38

AM. J. CRIM. LAW

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consent to such experiments do not feel that their consent has been
coerced.'
The convicted paraphiliac should have the option of choosing
MPA treatment. Although the convicted offender's freedom of choice
is constrained because he violated the criminal law, he is still capable
of making choices.' 62 Just because the alternatives of his choices might
be unpleasant, this does not make his choices unacceptable.' 6a
The Supreme Court has upheld the decision of an accused individual to forego a trial and enter a guilty plea in order to avoid the
possibility of being convicted of a more serious crime.6 4 The Supreme
Court has also sustained the decision of an accused individual to plead
guilty, though not admitting guilt, to avoid the possibility of capital

punishment. 165 In addition, the paraphiliac might decide to undergo

MPA treatment because of its benefits.'" The offender would receive
treatment for his paraphilia, regain control over his life, build up his
self-esteem, and forge connections between himself and his community. 67 Without the option of MPA treatment as a condition of
probation, the convicted sex offender will be institutionalized for a long
period or incarcerated. In such a case, the offender has no choices.
The possibility of release or probation by consenting to undergo MPA
16
treatment provides the paraphiliac with a real choice.
The courts have recognized the possibility of inherent coercion
regarding the consent of involuntarily committed individuals to treatment. Courts have generally decided that the less invasive the treatment, the more likely the voluntariness of the consent; while the more
invasive the treatment, the less likely the voluntariness of the consent.'69

161. The National Commission for Protection of Human Subjects of Biomedical and Behavioral
Research found "that most prisoners did not regard their consent to research as consent obtained under
coercion or undue influence." Woody, supranote 136, at 68; Bailey, 481 F. Supp. at 214-15.
162. Berlin, Ethical Uses of Antiandrogenic Medications, 138 AM. J. PSYCHIATRY 1516 (1981);
Berlin and Coyle, supra note 125, at 123-4.
163. Berlin, supra note 162; Berlin & Coyle, supranote 125, at 123-24; Uphoff supra 126, at 440.
164. Bordenkircher v. Hayes, 434 U.S. 357 (1978).
165. North Carolina v. Alford, 400 U.S. 25 (1970).

166. Note, Sexual Offenders and the Use ofDepo-Provera,22 SAN DiEO L. Ray. 565, 574 (1985).
167. Paul Freund stated that "There seems to be no good reason for depriving this group (prisoners)

of the satisfactions of participation on an informed basis, satisfactions to them are often great indeed,
bolstering their self-esteem and furnishing links to the general community and its values," Freund,
EthicalAspects ofExperimentationwith Human Experiments, 98 Daedalus viii, xii (Spring 1969).
168. Woody, supranote 136, at 69-70; Uphoff, supra note 126, at 440; Note, supra note 166, at
574-75
169. Marco and Marco, supra note 151, at 315.

Chemical Castration
In Kaimowitz v. Michigan Department of Mental Health, the defendant
was being held in a state mental institution under the Michigan Sexual
Psychopath Act after being charged with murder and rape. The state
sought to involve the defendant in a research study investigating
170
psychosurgery as a treatment for uncontrolled aggression.
The Michigan Circuit Court held that the involuntarily committed
mental patient could not consent "to an innovative or experimental surgical procedure on the brain," even though "the procedure was designed
The court examined three
to ameliorate the (antisocial) behavior.''
factors-competence, knowledge, and voluntariness-in determining
that the individual could not give his informed consent to experimental
psychosurgery. 172 First, the court held that since the individual had
been institutionalized for more than fifteen years, his decision-making
ability had so eroded that he lacked the capacity to consent to experimental psychosurgery. 73 Second, the court held that there were
too many unknowns pertaining to the psychosurgery making it
"dangerous, intrusive, irreversible, and of uncertain benefit to the
patient and society."'' 4 Third, the inequality in bargaining power becoercive intween the physician and the individual in the inherently
175
involuntary.
consent
any
made
environment
stitutional
The three factors identified in the Kaimowitz case must be
balanced differently in each case depending on the nature of the treatment. In Kaimowitz, the risks of the experimental psychosurgery far
outweighed its benefits; thus, the court strictly reviewed the
individual's consent to the procedure. 76 The risk-benefit calculus is

170. Kaimowitz, supra note 157, at 147.

171. Id.
172. According to the court, "psychosurgery flattens emotional responses, leads to lack of abstract
reasoning ability, leads to a loss of capacity for new learning and causes general sedation and apathy.
It can lead to impairment of memory, and in some instances unexpected responses to psychosurgery are
observed. It has been found, for example, that heightened rage reaction can follow surgical intervention
on the amygdala, just as placidity can." Id. at 149.
173. Id. at 150.
174. Id. at 149-50.
175. Id. at 151.
176. Id. at 148-49; See Comment, Kaimowitz v. Department ofMental Health:Involuntary Mental
PatientCannot Give Informed Consent to ExperimentalPsychosurgery,4 N.Y.U. Rnv. OF L. & Soc.
CHANGE, 207, 209-13 (1974); See also Discussion, ConstitutionalLaw-An Involuntarily Detained
MentalPatient'sInformed Consentis Invalid ForExperimentalPsychosurgery,50 CRi-KENT L. REV.
526 (1973); Note, Torts-Informed Consent-An Involuntarily Confined Mental Patient Cannot Give
Informed Consent to Experimental Psychosurgery, 20 WAYNE L. REV. 1309 (1974); Koskoff, The
Kaimowitz Case:A Short Term Legal Restraint Contraryto the Long Term Public Good, 13 DuQ. L.

REv.879 (1975).

AM. J. CRIM. LAW

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far different concerning MPA treatment. First, it can be assumed that

the paraphiliac is competent to make decisions pertaining to his treatment. If he is given the option of MPA treatment, long-term institutionalization or incarceration, which can erode his decision-making
capacity, is avoided. Second, there is a great deal of scientific information available regarding MPA treatment. The danger, uncertainty,
and irreversibility posed by psychosurgery is not present with MPA
treatment. Third, the paraphiliac has the right to refuse MPA treatment
because it intrudes upon his personal liberty.'77 Furthermore, there is
always an inequality of bargaining power between the state and the
convicted offender regarding probation. If the paraphiliac's consent is
negated because it is given as a condition of release, all probation
conditions should be negated because of the similar absence of con178
sent.
Other courts have recognized that convicted offenders do not lack
the capacity to consent to medical experimentation. In Bailey v. Lalley,
prisoners alleged that their participation in non-therapeutic experiments
The prisoners
involving the injection of live viruses was coerced.'
argued that "unconstitutional conditions, such as overcrowding and

other undesirable aspects of regular institutional life" compelled their

participation in the experiments. 80
The court recognized that even though there were incentives for
prisoner participation, such as cell release time and monetary remuneration, only fourteen percent of the inmates participated in medical experiments.'' The court held that the prisoners were simply offered a
choice "to participate in a worthwhile but unpleasant activity" which
might be attractive because of the environment.'82 The court found
that the prisoners "had a viable choice" and "had the option to
withdraw" at any time from the experiments which followed institutional safeguards. 8 3 The court determined that the prisoners did not
lose their capacity to consent to medical experimentation. Furthermore, whereas the court allowed experiments which were non177.
178.
179.
180.
181.
182.
183.

See infra notes and text section llI-c-2.

Comment, supranote 152, at 321-22.
Bailey, 481 F.Supp. at 215; KArz, supra note 137; Woody, supranote 136 at 61-63.
Bailey, 481 F.Supp. at 220.
Id.
Id.
Id.

Chemical Castration
therapeutic,'84 MPA treatment's therapeutic nature should make it an
even more acceptable procedure.'
IV. CONSTITUTIONAL IMPLICATIONS
The Constitution protects two types of individual freedom. The
first, known as autonomy, is the individual's freedom to engage in
certain activities.' 86 The second, known as integrity, is the right of the
individual to be free from government interference. 7 Each is the logical correlation of the other, but each can be viewed as conceptually
distinct.'88 Individual autonomy focuses on permissible individual ac-

tion, while individual integrity is concerned with permissible state action.

Individual autonomy and integrity can be further divided into their
mental and physical components." 9 Mental autonomy encompasses an
individual's right to receive and generate thoughts and ideas and is
protected by the first amendment.' 90 Mental integrity is the right to be
free from state thought control and is protected by the first amendment,
the right to privacy, and the fourteenth amendment.' 9' Bodily
autonomy respects the right of the individual to make fundamental
choices regarding his person, such as those relating to procreation and
medical treatment, and is protected by the right to privacy and the
liberty interest in the fourteenth amendment.' 9 Bodily integrity, which
involves the right to be free from cruel and unusual punishment, is
protected by the eighth amendment.'93 Each of these aforementioned
freedoms will be examined in relation to the impact of MPA treatment
on the constitutional rights of the convicted paraphiliac.' 94
184. Id.at221.
185. Note, supranote 166, at 572-74.
186. Comment, Madness andMedicine: The ForcibleAdministrationof PsychotropicDrugs, 1980
Wis. L. REv. 497,502-03.

187. Id.
188. Id.
189. Id. at 503 n.25. This distinction is the same as that made by J.S. Mill between the liberties of
"conduct and consciousness." J.S. MiLL, ON LmmTY 137-38 (Warnock ed. 1962).
190. Id. at 508-20.

191. Id. at 501-08.

192. Richards, Homosexuality and the ConstitutionalRight to Privacy, 8 N.Y. REv. L. & Soc.

CHANGE 311 (1978-79).

193. Comment, supranote 186, at 520-30.

194. Bodily autonomy and integrity arebothinvolvedintherighttorefusemedicaltreatment. Since
the Supreme Court has defined the right to refuse medical treatment in terms of a liberty interest which
is protected by the due process clause of the fourteenth amendment, the issue is presented in terms of

bodily autonomy, the right of the individual to make choices about what is to be done to his body.

AM. J. CRIM. LAW

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A. The FirstAmendment

The first amendment serves an important function in an open

democratic society. The first amendment allows individuals to express
and receive ideas which enable them to make choices to realize their
life goals. The free flow of ideas is also necessary for an informed
citizenry to act in a civically responsible manner. From a societal
perspective, the first amendment provides for the recognition and discussion of societal problems. This discussion allows rational solutions
to emerge and be accepted by society. The first amendment allows

for the maintenance of a stable community by balancing cohesion and

conflict. 9 '
The first amendment guarantees mental autonomy and, within its
penumbra, the right to privacy.'96 The first amendment protects expression. A speaker is able to generate and communicate ideas. This
assumes that other individuals will be able to receive and mentally
process the ideas. 97 The ability to generate, communicate, and receive
ideas is known as mentation.' 9' The first amendment protects mentation because it is part of the entire process of expression.'99 Michael
Shapiro has defined the relationship between the first amendment and
mentation in the following manner:
1) The first amendment protects communication of virtually all
kinds, whether written, verbal, pictorial, or any symbolic
form, and whether cognitive or emotional in nature.
2) Communication entails the transmission and reception of
whatever is communicated.
3) Transmission and reception necessarily involve mentation
on the part of both the person transmitting and the person
receiving.

T. EMERSON, THE SYSTEM OF FREEDOM OF EXPRESSION 6-7 (1970).

196. In Kaimowitz, the court stated that, "[a] person's mental processes, the communication of
ideas, and the generation of ideas, come within the ambit of the first amendment. To the extent that
the first amendment protects the dissemination of ideas and expression of thoughts, it equally must
protect the individual's right to generate ideas," Kaimowitz, supra note 157, at 151-53; Comment,
supra note 186, at 508-22; Griswold v. Connecticut, 381 U.S. 470 (1965).
195.

1951

197. EMESON, supranote 195, at 1-6; The Supreme Court has stated that the Constitution affords
protection "to the communication, to its source and to its recipients." Virginia State Bd. of Pharmacy
v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976).
198. Shapiio, supra note 14, at 255-56.
199. Id. at 258-61; Alan Westin holds that the first amendment protects mentation because

communication and action require a private mental assessment of information. WESTIN, PRIVACY
AND FREEDOM 36 (1970).

Chemical Castration
4) It is in fact impossible to distinguish in advance mentation
which will be involved in or necessary to transmission and
reception from mentation which will not.
5) If communication is to be protected, all mentation must
therefore be protected.'
Shapiro concludes that since the first amendment protects mentation,
it follows as a corollary that: an organic therapy alters or interferes
with mentation, and the first amendment therefore protects persons
against enforced alteration or interference with their mentation by
coerced organic therapy. 20'
The Supreme Court has recognized the right to mental autonomy.
In Stanley v. Georgia, 2 the Court overturned an individual's conviction
for possessing pornographic materials in his home. The Court held
that free speech included the "right to receive information and ideas,
regardless of their social worth."20 3 The Court found that the state had
no right to control an individual's thoughts, even if they were loathsome, noxious, or immoral. 0" The Court stated that, "[o]ur whole con-

stitutional heritage rebels at the thought of giving government the

power to control men's minds .... Whatever the power of the state
to control public dissemination of ideas inimical to the public morality,
it cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts. 20 5
In Rogers v. Okin,' 6 a federal district court enjoined doctors at
Boston State Hospital from forcefully medicating mental patients because this violated the patient's mental autonomy. The court found
that psychotropic drugs affected the patient's "capacity to think. 20 7
The court stated that, "the capacity to think and decide is a fundamental
element of freedom ...whatever powers the Constitution has granted
208
our government, involuntary mind control is not one of them...."
In the Kaimowitz case, the Michigan Circuit Court also recognized
the right to mental autonomy.2' The court held that if freedom of
200. Shapiro, supra note 14, at 256.
201. Id.
202. 394 U.S. 557 (1969).
203. Id. at 564.
204. Id. at 565.
205. Id. at 565-66.
206. 478 F. Supp. 1342 (D. Mass. 1979).
207. Id. at 1366.
208. Id.
209. In Kaimowitz, the court stated that, "Freedom of speech and expression, and the right of all
men to disseminate ideas, popular or unpopular, are fundamental to ordered liberty. Government has

AM. . CRIM. LAW

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expression were to be given any meaning, it must protect the ability

of the individual to generate ideas.21 The court found that the first
amendment "protects the generation and free flow of ideas from unwarranted interference with one's mental processes. 21 ' The court
stated that experimental psychosurgery's "potential for injury to the
creativity of the individual is great and can impinge upon the right of
the individual to be free from state interference with his mental proces212
ses."
Treatment with MPA does interfere with a paraphiliac's mentation
by decreasing his compulsive sexual fantasy. All intrusions into an
individual's mental autonomy are not, however, prohibited by the first
amendment2 3 In Rennie v. Klein, a federal district court, dealing with
forced administration of psychotropic drugs to mental patients, held
that the length and persistence of the effects of psychotropic drugs on
the patients ability to think and speak determines whether the drug

intrudes upon their freedom to think or their right to privacy.1 4 Consequently, the key element in deciding whether an individual's first
amendment rights have been violated is the degree of the intrusion
caused by the treatment.
Michael Shapiro has also stated that "not every 'touching' of the
mind by the state creates a threshold first amendment claim.2 2 5
Shapiro provided six criteria for assessing whether a treatment is so
intrusive as to violate an individual's first amendment rights: 1) the
extent to which the effects are reversible; 2) the extent to which the
resulting state of mind is foreign, abnormal, or unnatural to the individual; 3) the rapidity of the effects; 4) the scope of the changes; 5)
the extent to which an individual can resist acting in a manner compelled by the treatment; and 6) the duration of the change.2 16 Utilizing
no power or right to control man's minds, thoughts, and expressions. This is the command of the first
amendment." Kaimowitz, supranote 157, at 152.
210. In Kaimowitz, the court stated that, "if the first amendment protects the freedom to express
ideas, it necessarily follows that it must protect the freedom to generate ideas. Without the latter
protection, the former is meaningless." Kaimowitz, supranote 157, at 152.
211. Id.
212. Id.
213. Comment, supranote 176, at 219-22; Discussion, supra note 176, at 536.

214. 462F.Supp. 1131, 1143-44 (D.NJ. 1978).

215. Shapiro, supra note 14, at 269.
216. Id. at262.

Chemical Castration
Shapiro's criteria, it can be argued that MPA treatment is not so intrusive as to violate the paraphiliac's first amendment rights." 7
First, the effects of the MPA are not irreversible. Second, MPA
deprives the paraphiliac of his sexual fantasy, but it restores his
thoughts to the parameters of normalcy. Third, the effects of MPA
are noted within seven to ten days, so the offender has time to adjust
to the resulting changes. 1 8 Fourth, MPA does not alter either the
physiological or psychological functioning of the mind; rather, MPA
deals with the underlying organic condition which generates the
thoughts. MPA simply reduces the intensity of and the preoccupation
.with the compulsive sexual fantasy. Fifth, the effects of MPA occur
without the conscious cooperation of the offender. Yet, the offender
undergoing MPA treatment can still think about and engage in sex.
Sixth, MPA is only effective while it is being administered. Once the
treatment stops, the effects of the drug cease. 219 Furthermore, MPA
actually increases the paraphiliac's ability to generate thoughts. Freed
from his compulsive fantasy, the offender can make choices to realize
his life ambitions and participate in the social and political activities
of the society.22
If the treatment with MPA is judged to be so intrusive as to violate
the paraphiliac's first amendment rights, the state must demonstrate a
compelling state interest to justify the imposition of the treatment. 2'
As long as the sex offender is institutionalized or incarcerated, there
is no compelling state interest to justify an invasion of his first amendment rights. If the paraphiliac is to be released into the community,
the state's interest in protecting its citizens from future sex crimes constitutes a compelling justification for requiring the treatment as a condition of release or probation. 2 2 The state's interest in rehabilitating

217. ContraDemsky, The Use ofDepo-Proverain the Treatmentof Sex Offenders, 5 J. LEGAL MED.
295,310-12 (1984).
218. Gagne, supranote 33, at 645.
219. Walker and Meyer, supra note 15 at 364-65; WALKER, supra note 10, at 436-37; Berlin and
Meinecke, supranote 19, at 607.
220. Gagne, supranote 194.
221. The compelling state interest test is generally used when there has been an alleged violation
of a fundamental right or a suspect classification under the equal protection clause. Comment, supra
note 176, at 221-22; J. NowAK, R. ROTUNDA & J. YOUNG, CONSTrrrtIONAL LAW (3d ed. 1986) at
14.39, 14A0.
222. Berlin and Meinecke, supranote 19, at 276-82,291-96. "The principle is, that the sole end for
which mankind are warranted, individually or collectively, in interfering with the liberty of action of
any of their number is self-protection. That the only purpose for which power can be rightfully exercised
over any member of a civilized community, against his will, is to prevent harm to others. His own good,

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the paraphiliac, while not sufficiently compelling, lends additional sup-

port for the treatment. 22 Furthermore, the state cannot compel the offender to undergo the treatment. The offender must voluntarily consent

to the treatment.
The compelling state interest test is generally not invoked when
dealing with state intrusions on freedom of expression. There are other
more specific modes of analysis.2 Since mentation is included within
the first amendment's freedom of expression, then, like expression, it

is not an absolute right. '

The Supreme Court has allowed infringe-

ments on the freedom of expression. For example, in Schenck v.

United States,2' 6 the Court held that speech can be restricted when the
words are used "in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. ' 2 7 The clear and
present danger test was refined in Brandenburg v.Ohio,228 which held
that speech may be restricted when "directed to inciting or producing

imminent lawless action" and "likely to incite or produce such action." 29 It can be argued that the compulsive sexual fantasies of a
convicted paraphiliac, which motivate him to commit sex crimes, pose
a clear and present danger from which the state has a legitimate interest

in protecting its citizens. This clear and present danger justifies requiring MPA treatment as a condition of freedom for the paraphilic
offender, even if it intrudes upon his first amendment liberty.
There is also a distinction between the first amendment's protection of ideas and actions. 230 The expression of ideas is afforded greater
either physical ormoral, is not a sufficient warrant. He cannot rightfully, be compelled to door forbear
because it will be better for him to do so, because it will make him happier, because, in the opinions of
others, to do so would be wise, or even right. These are good reasons for remonstrating with him or
reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him
with an evil if he do otherwise. To justify that, the conduct from which it is desired to deter him must
be calculated to produce evil to someone else." MiLL,supranote 189, at 11-12 (1930).
223. Shapiro, supranote 14,at 282-90.
224. See e.g., Shapiro, supra note 14, at 282-90; Comment, supra note 176, at 221-22; NOWAK,
ROTUNDA, YOUNG, supranote 221.
225. Discussion, supranote 176, at 536-39.
226. 249 U.S. 47 (1919).
227. Id. at 52.
228. 395 U.S. 444 (1969).
229. Id. at 447.
230. T. Emerson has stated that, "Thecentral idea of a system of freedom of expression is that a
fundamental distinction must be drawn between conduct which consists of 'expression' and conduct
which consists of 'action.' 'Expression' must be freely allowed and encouraged. 'Action' can be
controlled, subject to other constitutional requirements, but not by controlling expression," EMERSON,
supranote 195, at 17-18.

Chemical Castration
first amendment protection than expressive conduct or action.23' When
the state regulates expressive conduct, the regulation is justified:
1) If it is within the constitutional power of the Government;
2) If it furthers an important and substantial governmental
interest;
3) If the governmental interest is unrelated to the suppression
of free expression; and
4) If the incidental restriction on alleged first amendment
freedoms is no
greater than is essential to the furtherance of
32
that interest.u
The convicted paraphiliac's treatment with MPA can be viewed
as state regulation of action, not of thought. The state has a legitimate
interest in preventing sex crimes. The state's interest is accomplished
by offering MPA treatment to a convicted paraphiliac as a condition
of release or probation. The MPA has only an incidental effect on the
offender's thought process, the diminishment of his compulsive sex
fantasy. Since the principal concern of the state is the prevention of
sex crimes, not the suppression of thought, the minimal intrusion on
the offender's freedom of thought is justified. 3
B. The Eighth Amendment
The eighth amendment, as originally incorporated, was concerned
with barbarous methods of punishment, such as torture and execution.234
The Supreme Court has, however, recognized that "cruel and unusual
punishment" is an evolving concept which must "draw its meaning
from the evolving standards of decency that mark the progress of
maturing society."" The Court has also held that the degree of punishment must be limited to that necessary to achieve legitimate state goals.
36 Consequently, the
Any excessive punishment is cruel and unusual.
237
eighth amendment protects bodily integrity.
231. Id.; Comment, supranote 176 at 221-22; NowAK, ROTUNDA & YOUNG, supranote 221.
232. U.S. v. O'Brien, 391 U.S. 367 (1968).
233. Contra Green, supranote 118, at 18-20.
234. The language of the eighth amendment was originally found in the English Bill of Rights of
1689. It was first incorporated into the Virginia Declaration of Rights of 1776, and then into the U.S.
Constitution with the world "shall" being substituted for the word "ought." Note, supra note 13, at 390.
235. Gregg v. Georgia, 428 U.S. 153, 166 (1976).
236. The Court stated that, "[i]f there is significantly less severe punishment adequate to achieve
the purposes for which the punishment is inflicted, the punishment inflicted is unnecessary and therefore
excessive." Furman v. Georgia, 408 U.S. 238,279 (1972).
237. Green, supranote 118, at 18.

AM. J. CRIM. LAW

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There is a question as to whether the eighth amendment applies

to involuntarily committed mental patients, such as sexual psychopaths.
The Supreme Court in Ingraham v. Wright?3 held that the eighth
amendment applies to penal incarceration. The Court described two
conditions of penal confinement which warranted such a constitutional
requirement. Both of these conditions are also present with involuntarily committed mental patients, such as sexual psychopaths. First,
both prisoners and sexual psychopaths are involuntarily confined in
restrictive settings." Both have lost their liberty; are separated from
family and friends; lack control over their lives; and are dependent
upon the state for the necessities of life. Second, both prisoners and
sexual psychopaths suffer stigmatization from their confinement.240
Since prisoners and sexual psychopaths are similarly situated, the
eighth amendment should also apply to sexual psychopaths. 24'
The administration of MPA as a condition of release or probation
raises eighth amendment concerns which initially revolve around the

question whether MPA constitutes treatment or punishment. 242 Some

early court decisions held that legitimate medical treatments are not
subject to eighth amendment restrictions. 243 These courts deferred to
physician's treatment decisions which were designed to rehabilitate the
individual.2
Under this rationale, if MPA is considered to be a
legitimate medical treatment, it will not be subject to eighth amendment
scrutiny.
Treatment and punishment must be distinguished. A federal district court, in Rennie v. Klein,245 upheld the forced administration of a
psychotropic drug, prolixin,24 6 to inmates in a state hospital in the ab238. 430 U.S. 651 (1977).
239. Id. at 669-70.
240. Id.
241. Comment, Mental PatientsRights, 7 HASTINGS CONST. L.Q. 701,722-25, citing In re Ballay,
482 F.2d 648 (D.C. Cir. 1973); wheeler v. Glass, 473 F.2d 983 (7th Cir. 1973); U.S. v. Solomon, 563
F.2d 1121 (4th Cir. 1977); Harper v. Cserr, 544 F.2d 1121 (lst Cir. 1976).
242. Note, Aversion Therapy: Punishment as Treatment and Treatment as Cruel and Unusual
Punishment,49 S. CAL.L. REv. 880,946-47 (1976).
243. Id. at 947-49, citing Haynes v. Harris, 344 F.2d 463 (8th Cir. 1965); Peek v. Ciccone, 288 F.
Supp. 329 (W.D. Mo. 1968); Veals v. Ciccone, 281 F. Supp. 1017 (W.D. Mo. 1968); Smith v. Baker,
326 F. Supp. 787 (W.D. Mo. 1970).
244. Note, supranote 242, at 949.
245. 462F.Supp. 1131 (D.NJ. 1978).
246. Prolixin or Fluphenazine is a psychotropic drug. Psychotropic drugs tend to shorten hospital
stays and allow patients to function in the community. Psychotropic drugs are effective in reducing
thought disorders in a majority of schizophrenics. They are the treatment of choice for schizophrenics.
Psychotropics produceshort term autonomic sideeffects, such as blurred vision, dry mouth, constipation
or diarrhea, palpitations, skin rashes, low blood pressure, faintness and fatigue. They also produce

Chemical Castration
sence of an emergency. 247 The court utilized a four-part test to distinguish between treatment and punishment: 1) does the drug have
therapeutic value?; 2) is the drug part of an ongoing program of
psychotherapy?; 3) are the effects of the drug unduly harsh in relation
to its benefits?; and 4) is the drug experimental? 248 The court found
that "[w]hile the side effects of prolixin are serious, they are not unnecessarily harsh in light of its potential benefits"2 49(emphasis in
original). The court held that there was no violation of the eighth
amendment because "[p]rolixin was justifiably administered as treatment, not punishment."5 0
MPA can be viewed as a legitimate medical treatment for
paraphiliacs under the four part Rennie test. First, MPA has therapeutic
value. MPA decreases the level of testosterone, thus eliminates the
compulsive sex fantasy. The paraphiliac is relieved of his formerly
uncontrollable urge. During this period of sexual quiescence, the
paraphiliac can encounter life outside of his sexual realm and participate in the normal activities of life."' Furthermore, MPA is the
most effective treatment for paraphiliacs.252 Second, treatment with

MPA is done under medical supervision and is part of an ongoing

psychological treatment. MPA is only a treatment, not a cure, for the
paraphiliac. The treatment eliminates the compulsive sexual drive and
makes the offender amenable to psychotherapy which will allow him
3
to control and reorient his life.25
Third, the effects of MPA are not unduly harsh in relation to its
benefits. A paraphilic offender undergoing MPA treatment may suffer
some short-term physiological side effects, but there are no known
long-term effects. The suspected carcinogenic effects of MPA have
been discounted.s 4 While under the treatment, the offender is able to
extrapyramidal side effects, such as akinesia and akathesia. Akinesia refers to a state of diminished
spontaneity, and feelings of weakness and muscle fatigue. Akathesia is a subjective state which refers
to an inability to remain still. A potential side effect permanent from psychotropic drugs is tardive
dyskinesia. Tardive dyskinesia is characterized by rhythmical, repetitive, involuntary movements of
the tongue, face, mouth or jaw, sometimes accompanied by other bizarre muscular activity. Rennie,
462 F.2d at 1136-38.
247. Id. at 1154.
248. Id.at 1143.
249. Id.
250. Id.
251. See supra notes 10, 13, 15, 18, 19, 26.
252. See supra note 149 and accompanying text.
253. Supra note 251.
254. See supra notes 39-41, 43 and accompanying text.

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avoid the negative impacts of confinement or incarceration and remain

in the community to work and be rehabilitated. MPA, however, is
only effective while it is being administered. There is no long-term
benefit from the MPA. Once the treatment stops, the paraphiliac may
relapse to his former behavior.ss
Fourth, MPA is not classified as an experimental drug 2s' and
should be viewed as an innovative therapy.
Innovative therapies,
which lie somewhere between research and standard medical practice,5 8
lack validation concerning their safety and effectiveness, and therefore
require more testing. 9 MPA has been used for many years outside
of the criminal justice system to treat sexual deviants.W In 1981, there
were more than fifty centers in the United States using MPA to treat
sex deviants. 26 ' There has been a great deal of scientific study regarding
the treatment.262 The innovative nature of MPA treatment should not

255. See supra note 251.

256. See supra notes 24-25 and accompanying text.

257. See supranote 153. Levine wrote that "Uncertainties may be introduced by the application of
novel procedures as, for example, when deviations from common practice in drug administration or in
surgical, medical, or behavioral therapies are tried in the course of rendering treatment. These activities
may be designed innovative therapy but they do not constitute research unless formally structured as a
research project." Cowan &Bertsch, supranote 153, at 223.
258. The National Commission for the Protection of Human Subjects of Biomedical and Behavioral
Research in the Belmont Report wrote
For the most part, the term 'practice' refers to interventions that are designed solely
to enhance the well-being of an individual patient or client and that have a reasonable
expectation of success. The purpose of medical or behavioral practice is to provide
diagnosis, preventive treatment or therapy to particular individuals. By contrast,
the term 'research' designates an activity designed to test a hypothesis, permit conclusions to be drawn, Rand thereby to develop or contribute to generalizable
knowledge (expressed, for example, in theories, principles, and statement of relationships). Research is usually described in a formal protocol that sets forth an objective
and a set of procedures designed to reach that objective.
The Commission also noted that, "When a clinician departs in a significant way from standard or
accepted practice, the innovation does not, in and of itself, constitute research. The fact that a procedure
is 'experimental', in the sense of new, untested or different, does not automatically place it in the
category of research." Cowan &Bertsch, supranote 153, at 219-21, citing The Belmont Report: Ethical
Principles and Guidelines for the Protection of Human Subjects of Research (DHEW Pub. No. (OS)
78-0012, 1989), at 2-3.
259. Levine pointed out that "nonvalidated practices" or "innovative therapies" are characterized
by the "lack of suitable validation of [their] safety and efficacy" rather than their novelty. Such apractice
might not be validated because of the lack of testing or questions have been raised safety or efficacy.
Id. at 224. Claude Bernard, the father of clinical research, found that the difference between standard
practice and innovative therapy was merely the difference between a beginning and an advanced level
of the practice of medicine. Id at 223-24.
260. See supra note 46 and accompanying text.
261. Berlin and Coyle, supra note 125, at 123.
262. See supra notes 39,46, 131, 148 and accompanying text.

Chemical Castration
preclude its use as a condition of release or probation for sexual
paraphiliacs.
In People v. Gauntlett,263 a Michigan Appellate Court arrived at a
contrary conclusion regarding the innovative nature of MPA treatment.
Roger Gauntlett, an heir to the Upjohn Company, was convicted of
first degree criminal sexual conduct for sexual intercourse with his
fourteen-year-old stepdaughter and sexual fondling of his twelve year
old stepson. 26' A Kalamazoo Circuit Court judge gave Gauntlett a sentence of five years probation with the first year to be served in the
county jail, payment of $125,000 in court costs, and treatment with
MPA for the duration of his probation. 265 Both the state and the defendant appealed the sentence. The Michigan Appellate Court overturned
Gauntlett's sentence on several grounds.26 6 The court found that treatment with MPA "fails as a lawful condition of probation because it
has not gained acceptance in the medical community as a safe and
reliable practice." 67
Recent court decisions have failed to recognize any distinction between treatment and punishment for the purposes of eighth amendment
analysis.268 The courts have abandoned the earlier deferential approach
for a more contextual inquiry which examines the purposes and effects
of a treatment to determine if the treatment comports with the eighth
amendment. 269 Several medical treatments have been invalidated for
being cruel and unusual. In Knecht v. Gillman,27 the Eighth Circuit
Court of Appeals held that the administration of apomorphine, an
emetic drug, to inmates at the Iowa Security Medical Facility as aversive therapy,271 constituted cruel and unusual punishment.272 The court

263. 134 Mich. App. 737,352 N.W.2d 310 (Mich. Ct. App., 1984).
264. Id. at311-12.
265. Id. at 312-14.
266. Id. at 321.
267. Id. at 316. The court found that "the use of Depo-Provera to reduce the sexual drive in male
sex offenders is experimental only. The medical-psychiatric literature on the topic is limited. The
practice is limited to a few institutions." Certain questions are posed by the treatment: "Who is to
administer this treatment? What if, as the defendant alleges, the medicine would be detrimental to his
alleged heart and psychiatric conditions? Is the defendant entitled to psychotherapy along with the drug
treatment, as appears to be the practice in the studies referred to by the trial court?"
268. Note, supra note 242, at 949, 956-59; see also Wheeler, Toward a Theory of Limited
Punishment:An Examinationof the Eighth Amendment, 24 STAN. L. REV. 838, 845 (1972).

269. Id.
270. 488 F.2d 1136 (8th Cir. 1973).

271. Id.

272. 488 F.2d 1136 (8th Cir. 1973).

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found that apomorphine had no therapeutic value, was not an acceptable

273
medical practice, and caused harsh adverse effects.
In Mackey v. Procunier,274 the Ninth Circuit Court of Appeals held
that the administration of the fright drug, succinylcholine, to prisoners
at the California Medical Facility at Vacaville as aversive therapy could
constitute cruel and unusual punishment. The court determined that
since the administration of the drug to conscious patients was not part
of the accepted medical regime, the staff could have been experimenting on the prisoners without their consent.275
In Nelson v. Heyne27 6 and Pena v. New York State Division for
Youth, 277 the federal courts held that standing medical orders to administer psychotropic drugs in juvenile homes to maintain order constituted cruel and unusual punishment. Similar conclusions pertaining

to forced drug administrations were reached by other federal courts."'

Consequently, MPA treatment must be analyzed as a form of punishment.
The Supreme Court has developed three different tests to determine whether punishment is cruel and unusual under the eighth amendment. 279 The first test is whether the punishment is inherently cruel.28
Originally, all punishment which would have been invalid at the time
of the Constitution was considered to be inherently cruel. 21' The
Supreme Court has recognized that cruel and unusual punishment must
be judged by the norms of contemporary society and by its effects on
the offender.2 2 Consequently, inherently cruel punishments are those
which, when viewed by an enlightened public today, produce the same
effects as barbarous punishments at the time of the Constitution. 8 3
The treatment of paraphiliacs with MPA is not inherently cruel.
The paraphiliac is given an injection by a hypodermic needle. The
273.
274.
275.
276.
277.
278.
(3d Cir.
279.

Id. at 1138-40.
477 F.2d 877 (9th Cir. 1973).
Id. at 878.
355 F. Supp. 451,455 (N.D. Ind. 1972).
419 F. Supp. 203,207 (S.D. N.Y. 1976).
Souderv. McGuire, 423 F. Supp. 830,832 (M.D. Pa. 1976); Scott v. Plante, 532 F.2d 939,940
1976); Welsch v. Likins, 373 F. Supp. 487,503 (D. Minn. 1974).
Note, supranote 242, at 956-59.

280. Id. at 935-38.

281. Id.; see also Wilkerson v. Utah, 99 U.S. 130, 134-36 (1878) and In re Kemmler, 136 U.S. 436,
446-47 (1890).
282. Gregg, 428 U.S., at 173.
283. See Note, supra note 242, at 938.

Chemical Castration
offender might suffer some short-term adverse physiological side effects, but there are no known long-term effects from the treatment.
Furthermore, treatment with MPA is different than castration,
which is the only alternative treatment which has demonstrated similar
success.28 4 Courts in the U.S. do not allow castration as a form of
punishment for sex crimes because it is cruel and unusual. 285 In Davis
v. Berry,286 a federal district court declared unconstitutional an Iowa
statute which authorized vasectomies for sexual perverts. The court
stated that modern society could not accept castration as a form of
punishment because the humiliation, degradation, and mental suffering
which accompanies the act is cruel and unusual.287
In Mickle v. Hendricks, a federal district court invalidated a
Nevada statute which provided for castration, stating that, "when the
penalty is paid and the offender is free to resume his place in society,
he should not be handicapped by the consciousness he bears on his
person, and will carry to his grave, a mutilation which, as punishment

is a brand of infamy." 288 Furthermore, in Skinner v. Oklahoma,2 9 the

Supreme Court invalidated an Oklahoma statute which provided for
the sterilization of habitual criminals who committed crimes involving
moral turpitude. 29 The Supreme Court acted on equal protection
grounds,29' but it could have just as easily decided that the Oklahoma
statute violated the eighth amendment. 292 Treatment with MPA is not
like castration. The effects of MPA are not permanent or irreversible.
There is no humiliation, degradation, or "badge of infamy" placed on
the convicted sexual paraphiliac. Furthermore, the paraphiliac, while

284. Note, supranote 13, at 386.

285. Id.
286. 1990 W.L. 80052 (S.D. N.Y.)(S.D.N.Y. Jun 01, 1990)(NO. 88 CIV. 8325 CSH).
287. The court stated that the results of the castration would "follow the man during the balance of
his life. The physical suffering may not be so great, but that is not the only test of cruel punishment;
the humiliation, the degradation, the mental suffering are always present and known by all the public,
and will follow him wheresoever he may go. This belongs to the Dark Ages." Id. at 416.
288. Id.at691.
289. 316 U.S. 535 (1942).

290. Skinner was convicted once for chicken stealing and twice for armed robbery. He was ordered
to be sterilized under Oklahoma's Habitual Criminal Sterilization Act. Certain crimes, including
embezzlement, were exempted from the sterilization sanction. The Court struck down the law on the
basis that embezzlement and larceny were essentially the same. The Court stated that when the law
"lays an unequal hand on those who have committed intrinsically the same quality of offense and
sterilizes one and not the other, it has made as invidious a discrimination as if it had selected a particular
race or nationality for oppressive treatment." Id. at 541.
291. Id.at538.
292. See Comment, supra note 47, at 221.

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undergoing MPA treatment, is still able to engage in sex and beget

children.
The second test employed by the Court is whether the punishment
is proportional to the crime.293 This test, which views the seriousness
of the punishment in relation to the gravity of the offense, results in
a three part inquiry: 1) How does the punishment comport with
society's view of decency? 2) Is the punishment proportional to other
serious crimes? and 3) Is the punishment similar to that afforded similar
crimes in other jurisdictions? 294
Treatment with MPA complies with proportionality review. The
paraphilic offender has been convicted of a sex crime for which he
will be institutionalized or incarcerated. If he is released or accepts
probation, with MPA treatment, he can be returned to the community
under state supervision. He will not be forced to undergo the treatment
for a period longer than the sentence for his offense. 5 In addition, if
the treatment is viewed in relation to a serious sex offense, it is definitely not excessive. The victim of a serious sexual assault must carry
the psychological scars around for life. 6 Children who are sexually
molested become "psychological time bombs" who suffer various personality disorders.297 Many of the children who are victims of sexual
abuse become future rapists and child abusers.29
It has been held that probation with MPA treatment is too lenient
a sentence for the commission of a serious sex offense. The Michigan
Court of Appeals in People v. Gauntlett" overturned the defendant's
sentence of five years probation with MPA treatment for first degree
criminal sexual conduct. The court determined that the sentence was
disproportionate to others given in the jurisdiction for similar offenses.3" The court found that the presentence report had recommended a fifteen-year minimum sentence and that similar offenses
warranted serving a sentence up to life in prison.'O The court stated
293. Note, supranote 242, at 938-39.
294. Id. at 939-40.
295. However, indeterminate confinement exists for the sex psychopath in five states. See BARKEL,
PARRY & WEiss, supranote 2.
296. Prager, Sexual Psychopathy and Child Molesters: The Experiment Fails, 6 Juv. L. 49, 63
(1982).
297. Id.
298. Id. The overwhelming majority of child molesters and rapists reported that they were molested
during their childhood (75%).
299. 352 N.W.2d at 321.
300. 352 N.W.2d, at 318-19.
301. Id.

Chemical Castration
that "probation in this case shocks our conscience because it is so significantly disproportionate to sentences generally imposed on similarly
situated defendants."302 Consequently, the court remanded the case
back to the lower court for resentencing 0 3
The third test utilized by the Court is whether the punishment is

excessive in relation to the achievement of legitimate state goals.3

The American Bar Association recommended that states employ the
"least restrictive" alternatives to achieve their penal goals. 30 5 While
the paraphilic offender is undergoing treatment with MPA, he poses a
minimal threat to society. The thoughts which compel him to commit
sex crimes have been suppressed. MPA treatment, accompanied by
psychotherapy, will lead to the rehabilitation of the paraphilic offender.
This will preclude his commission of future sex crimes and provide
greater long term safety for society.3 Also, granting the paraphilic
offender release from confinement or probation, with MPA treatment,
is far less intrusive on the offender's liberty than is confinement or
incarceration. 0 7
C. The Right to Privacy-IndividualLiberty
Since the Enlightenment, the political objectives and goals of
liberalism have emphasized that individuals are entitled to define their
own system of ends as free and rational beings. 0 8 Human rights
presume a respect for the ability of individuals to make choices pertaining to their own lives.39 Government authority, which is derived
from the consent of the governed, must be exercised in conformity
with principles which respect individual dignity and personhood.1
Consequently, the right to privacy is inherent in the notions of
liberalism and constitutional democracy.'

302. Id.
303. Id.
at 321.

304. Note, supranote 242, at 944-45; Furman, 408 U.S. at 279, 342.
305.
306.
307.
308.

ABA, supra note 100, at 57-70.

Id.
Id. at 63-67.
Richards, Homosexuality and the ConstitutionalRight of Privacy, 8 N.Y. REv. L. & Soc.
CHANGE 309,314-15(1978-9); see also D. RiCHARDs, SEX, DRuGS, DEATH, AND THELAW (1982) cs. 1

&2.
309. Id.
310. Id.
311. Id.

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The right to privacy was first addressed in a famous article by

Justices Warren and Brandeis. 312 The justices asserted that the common
law recognized the individual's right to be free from physical interference, physical restraint, and trespasses in life and property.313 Justice Brandeis later wrote that: "The makers of our Constitution...
sought to protect Americans in their beliefs, their thoughts, their emo-

tions, and their sensations. They conferred as against the Govemment

the right to be let alone as the most comprehensive of rights and the
right most valued by civilized man.' 31 4
The Supreme Court initially recognized that there were certain
areas of private concern which were immune from state interference
under the fourteenth amendment.3 " In 1965, the Supreme Court first
16
formally articulated the right to privacy in Griswold v. Connecticut
There were different rationales offered to establish the right to privacy.
One view held that the right to privacy was found in the penumbras
of various constitutional amendments, specifically the first
amendment's freedom of association, the third amendment's protection
of the home, the fourth amendment's protection of persons and property, the fifth amendment's protection against self-incrimination, and the
ninth amendment.1 7
Another view held that the right to privacy was included in the
ninth amendment which demonstrates that the express provisions of
the first eight amendments do not exhaust the restrictions placed on
the states by the fourteenth amendment. 3 8 A final position was that
the right to privacy was inherent in the fourteenth amendment's "concept of ordered liberty" which protects fundamental rights.319 Regardless of its constitutional location, the right to privacy has become
encompassed within the due process clause of the fourteenth amendment which applies the right to privacy to state action.3 2 The courts
312.
313.
314.
315.

Warren and Brandeis, The Right to Privacy,4 HARv.L. Ray. 193 (1890).
Id.
Olmstead v. United States, 277 U.S. 438,478 (1928) (Brandeis, J., dissenting).
Pierce v. Society of Sisters, 268 U.S. 510 (1925)(child rearing); Meyer v. Nebraska, 262 U.S.

390 (1923)(education); Prince v. Massachusetts, 321 U.S. 158 (1944)(family relationships); Skinner v.
Oklahoma 316 U.S. 535 (1942)(procreation); Loving v. Virginia, 388 U.S. I(1967)(marriage).
316. 381 U.S. 479 (1965).
317. Id. at 484, (Douglas, 3., plurality).
318. Id. at 493, (Goldberg, J.,
concurring).

319. Id. at 500, (Harlan, J.,

concurring).
320. The Court has stated:
It is true that despite the language of the Due Process Clauses of the Fifth and Fourteenth Amendments, which appear to focus only on the processes by which life, liberty,
or property is taken, the cases are legion in which those clauses have been interpreted
to have substantive content, subsuming rights that to a great extent are immune from

Chemical Castration
have recognized that the right to privacy or the liberty interest in the
fourteenth amendment protects bodily autonomy which, includes the
right to procreate and the doctrine of informed consent and bodily integrity embodying the right to refuse unwanted medical treatment.
Nevertheless, if an individual loses his liberty as a result of a criminal
conviction, he does not necessarily have a right to treatment for his
condition.
1. The Right to ProcreativeChoice. The right to privacy and the
fourteenth amendment protect bodily autonomy which, has been termed
"the first form of autonomy and the necessary condition ... of all (its)
later forms."32 ' The right to bodily autonomy allows an individual to
make procreative decisions.322 The Supreme Court first recognized
procreative rights in Skinner v. Oklahoma,a which held that the right
to procreate is "one of the basic civil rights of man." 324 The Court
expanded procreative freedom in Griswold v. Connecticut,32 holding

that married individuals have a constitutionally protected right to

privacy which protects their decisions pertaining to contraception and
procreation. 26 The Connecticut statute which prohibited individuals
from obtaining and using contraceptives was invalidated because its

enforcement would intrude on married couples' rights to privacy.327

federal or state regulation or proscription. Among such cases are those recognizing
rights that have little or no textual support in the constitutional language. Meyer,
Prince, and Pierce fall in this category, as do the privacy cases from Griswold to Carey.
Bowers v. Hardwick, 478 U.S. 186, 190 (1986). Justice Harlan, dissenting in Poe v. Ullman, 367 U.S.
497,539 (1961), stated that the dueprocess clause of the fourteenth amendment"is arational continuum,
which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless
restraints,.... and which also recognizes, what a reasonable and sensitive judgment must, that certain
interests require particularly careful scrutiny of the state needs asserted to justify their abridgement."
Justice White in Moore v. East Cleveland, 431 U.S. 494 (1977), stated, "it would not be consistent with
prior cases to restrict the liberties protected by the Due Process Clause to those fundamental interests
implicit in the ordered concept of liberty." Moore, 431 U.S. at 547. He explained that "while we must
look to the nature of the interest rather than its weight in determining whether a protected interest is at
issue, the term 'liberty' has been given a broad meaning in our cases.... In a constitution for a free
people, there can be no doubt that the meaning of 'liberty' must be broad indeed." Id.
321. Gerety, Redefining Privacy, 12 HARV. C.R.-C.L.L. Ray. 233,266 (1977).
322. See Griswold, 381 U.S. at 479 and section II-c.
323. 316 U.S. 535 (1942).
324. Id. Justice Douglas stated that "we are dealing here with legislation which involves one of the
basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival
of the race." Id. at 541.
325. 381 U.S. 479 (1965).
326. Id. at 485.
327. Justice Douglas asked: "Would we allow the police to search the sacred precincts of the marital
bedroom for telltale signs of the use of contraceptives?" Id. at 485.

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The Court determined that Connecticut's justification for the law,328 the
suppression of illicit sex, was not sufficiently compelling to justify an
intrusion into this fundamental right.329
The right to privacy was broadened in Stanley v. Georgia.330 The
Court decided that an individual's right to privacy, which was included
in the penumbra of the first amendment, allowed the individual to possess pornography in the privacy of his home.33 ' The Court held that
Georgia's argument concerning the protection of the moral health of
the community was a form of thought control which was "wholly inconsistent with the philosophy of the first amendment., 332 The Court
also found "little empirical evidence" to support Georgia's contention
that contact with pornography incited illegal action.333 The Court, by
protecting the individual's right to receive ideas, recognized the
individual's autonomy "to satisfy his intellectual and emotional needs
in the privacy of his own home.' 33
335 the Court, acting on equal protection
In Eisenstadt v. Baird,
grounds, extended the same right of privacy to single individuals that
was possessed by married couples regarding procreation and contraception. The Court struck down a Massachusetts statute which prohibited
the distribution of contraceptives to unmarried individuals. 336 The
Court found that the purpose of the law was to prevent contraception,
despite Massachusetts's assertion that the statute was designed to deter
unlawful premarital sex and to protect community health. 37 The Court
held that there was no rational reason to treat married and single individuals differently regarding contraception. 3 8 The Court also suggested that the freedom to decide to have children is so fundamental
that it is protected by the right to privacy.339 Justice Brennan stated,
"If the right to privacy means anything, it is the right of the individual,
married or single, to be free from unwarranted government intrusion

328. CONN. GEN STAT. REv. 53-32 (1958).

329. Griswold, 381 U.S. 479.

330. 394 U.S. 557 (1969).
331. Id.; see GA. CODE ANN. 26-6301 (Supp. 1968).

332.
333.
334.
335.
336.
337.

Stanley, 394 U.S. at 565-66.

Id.
Id. at 565.
405 U.S. 438 (1972).
MAss. GEN. L., ch. 272, 21-21A (1970).
Eisenstadt, 405 U.S. at 447-52.

338. Id. at 452.

339. Id. at 453.

Chemical Castration
into matters so fundamentally affecting a person as the decision
whether to bear or beget a child. 34
In Roe v. Wade,341 the Court determined that a woman's right to
privacy protects her decision to terminate her pregnancy during its first
two trimesters. The right to privacy recognizes a woman's autonomy
to determine her own identity and reproductive destiny. This allows
women to make informed and independent choices regarding procreation. 42 The Court, however, held that the state's interest in the health
of the woman and in the protection of fetal life was sufficiently compelling to justify the possible state prohibition of abortions during the
third trimester of pregnancy.343
In Bowers v. Hardwick,3 " the Court severely curtailed the right to
privacy as it pertains to bodily autonomy. The Court determined that
state sodomy laws do not interfere with an individual's right to
privacy. 345 The Court held that the right to privacy only protects those
rights "implicit in the ordered concept of liberty" or "deeply rooted in
this nation's history and tradition. ' 346 The Court arrived at its conclusion by an extremely constrained interpretation of its past precedents. The Court failed to acknowledge the "values that underlie the
constitutional right to privacy. 3 47 The right to privacy protects
decisions which are central to an individual's life,3 48 and sexual
decisions and choices are means by which individuals define themselves in significant ways. 34 9 The Court's decision not only curtailed
homosexual rights, but also "the fundamental interests all individuals
have in controlling ... their intimate association with others., 350 The
Court failed to recognize that the right to privacy promotes individual
autonomy and free choice.351 Nevertheless, the'Court has clearly stated
through its prior decisions that the right to privacy protects an
individual's decision pertaining to procreation.

340.
341.
342.
343.
344.

Id.
410 U.S. 113 (1973).
See Richards, supra note 308, at 313.
Roev. Wade, 410U.S. 113.
478 U.S. 186 (1986).

345. Id. at 190.

346. Id.
347. Id. at 198 (Blackmun, J., dissenting).
348. Id. at 205-06.

349. Id.
350. Id.
351. Richards, supranote 308.

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AM. J. CRIM. LAW

Critics assert that MPA treatment violates a paraphiliac's right to

privacy by intruding upon his procreative decision, 352 and that there
is no compelling state interest to justify such an intrusion. Critics argue
that the state does have an interest in protecting society from sex
crimes, but it must accomplish this by the least restrictive means. Furthermore, the means chosen by the state must be rationally related to
ends sought. Critics contend that MPA treatment fails on both grounds
because it has not been shown to be more effective than other treatments in reducing the incidence of sex crimes.3 3
MPA treatment does not intrude upon the paraphiliac's right to
procreate. A paraphiliac undergoing MPA treatment is not impotent,
but "erotically apathetic."3" 4 Any diminishment in his sex drive can
be restored by adjusting the dosage of the drug.355 The offender, even
though producing an increased number of abnormal sperm, can still
engage in sexual activities and beget a child. The offender's release
from confinement or probation, with MPA treatment, is much less intrusive on his procreative liberty than, either commitment or incarcera-

tion. Furthermore, MPA treatment does reduce sex crimes committed

by the paraphiliac
because it is "clearly effective during active treat35 6
ment.1
2. The Right to Refuse Medical Treatment. The liberty which is
protected by the due process clause of the fourteenth amendment allows
an individual to refuse medical treatment, even if such treatment is
beneficial.5 7 The right to refuse medical treatment is not absolute.
The individual's liberty interest must be balanced against the state's
interests.3 8 The state must use procedures which protect the substantive liberty interest of the individual.3 9 The right to refuse medical
treatment is the corollary of the doctrine of informed consent. 36
352. Green, supra note 118, at 24-25.
353. Id.
354. P. WALKER et al., supranote 10.
355. Berlin, supra 10, at 103-06; Berlin & Meinecke, supra note 19, at 601-03.
356. Grossman, supra note 53 at 428.
357. In Cruzan v. Director, Missouri Dept. of Public Health, the Supreme Court stated that
"Although many state courts have held that a right to refuse treatment is encompassed by a generalized
constitutional right of privacy, we have never so held. We believe this issue is more properly analyzed

in terms of a Fourteenth Amendment liberty interest."

__

U.S.., 110 S.Ct. 2841, 2851 n.7 (1990).

358. The state's interests in requiring medical treatment include t) the protection of life, 2) the
prevention of suicide, 3) the protection of innocent third parties, and 4) the protection of the medical
profession. Harper v. State, 110 Wash. 2d 873,759 P.2d 358, 364 (Wash. 1988).
359. Matthews v. Eldridge, 424 U.S. 319,335 (1976) cited in Washington v. Harper, -U.S.
110 S. Ct. 1028 at 1041 (1990).
360. Cruzan,
U.S._ , l10S.Ct. at2847.

Chemical Castration
The position of the courts regarding the right to refuse medical
treatment has evolved.36 t Initially, the courts were unreceptive to such
claims. In several early cases, courts held that forcible medical treatments did not violate the constitutional rights of the patients.36 2 The

courts were reluctant to interfere with medical decisions which were

considered to be in the patient's best interest.363
Later, the courts began to recognize the right to refuse medical
treatment with respect to intrusive therapies.3 64 especially the forced

administration of antipsychotic medication to involuntarily committed

mental patients.365 Antipsychotic drugs, such as prolixin, thorazine, and
haldol, were introduced in the 1950's.3 6 Antipsychotics allowed
psychiatrists to treat previously hopeless patients.367 The behavior of
many patients improved under antipsychotics and they were released

from confinement.363 In the 1970's, the administration of antipsychotics began to be criticized.369 It was discovered that many
patients were suffering relapses and a diminishment in their social
functioning.370 Patients were not being cured, but they were simply
easier to maintain."' Serious side effects, such as akinesia,
akathesia,373 and tardive dyskinesia,374 were noted. Because psychiatrists were reluctant to abandon the use of antipsychotics, the courts
intervened.375
Two prominent cases in the 1970's provided the basis for the right
to refuse medical treatment. In the first cast, Rennie v. Klein, inmates
361. Comment, supra note 186, at 507.
362. Haynes, 344 F.2d at 463; Peek, 288 F. Supp. at 329; Veals, 281 F. Supp. at 1017; Smith,
326 F. Supp. at 787.
363. See e.g., Haynes, 344 F.2d, at 463; Peek, 288 F. Supp., at 329; Veals, 281 F. Supp., at
1017; Smith, 326 F. Supp., at 787; Comment, supranote 186 at 507; Plotkin, supranote 132, at 483.
364. Bell v. Wayne County General Hospital, 384 F. Supp. 1085, 1100 (E.D. Mich. 1974);
Souderv. McGuire, 423 F. Supp. 830,832 (1976); Scott v. Plante, 532 F.2d 939,946 (3rd Cir. 1976);
Kaimowitz, supra note 157.
365. Brooks, Law and Antipsychotic Medications,4 BEHAV. Sc. & THE LAW 247, 248 (1986).
366. Id. at 248-49.
367. See Rennie, 462 F.Supp. at 1137.
368. Id.
369. Plotkin, supra note 132 at 474-79; Comment, supra note 186; Rhoden, The Right to Refuse
PsychotropicDrugs, 15 HARv. C.R.-C.L. L. REv. 363 (1980).
370. See Brooks, supra note 365.
371. Id.
372. See Rennie, 462 F.Supp. at 1138.
373. Id.
374. Id.
375. See Brooks, supra note 365, at 248-52.

AM. J. CRIM. LAW

Vol. 18:1 (1990)

at the Ancora Psychiatric Hospital in New Jersey challenged the forced

administration of antipsychotic medication.376 The federal district court
held that the right of an involuntarily committed patient to refuse
psychotropic medication is "best founded on the emerging right of
privacy which.., is broad enough to protect one's mental process from
'
governmental interference."377
On appeal, the Third Circuit Court held
that involuntarily committed patients retain "a residuum of liberty"
which prohibits any "unjustified intrusions on personal security.""37
In the second case, Rogers v. Okin,379 patients at Boston State
Hospital challenged the forced administration of psychotropic medication in the absence of a medical emergency. The federal district court
held that the decision as to "what treatment to receive in a nonemergency situation" is "basic to any right of privacy." ' The First Circuit
Court, on appeal, stated that "a person has a constitutionally protected
interest in being left free by the state to decide for himself whether to

submit to serious and potentially harmful medical treatment that is represented by the administration of psychotropic drugs."3 '' The court
found the source of this protection in the due process clause of the
fourteenth amendment, "as part of the
penumbral right to privacy, bodi382
security.
personal
or
ly integrity,
The United States Supreme Court addressed the issue in Mills v.
Rogers3 3 but it refused to answer the question of whether involuntarily
committed mental patients have a constitutional right to refuse treatment with antipsychotic drugs.384 The Court did "assume for the purposes of this discussion that involuntarily committed mental patients
do retain liberty interests protected directly by the Constitution . . .
and that these interests are implicated by the involuntary administration
of drugs. 38 5 Nevertheless, the Court found that the substantive and
procedural issues in the case were intertwined with state law.33 6
The case was remanded back to the First Circuit Court for reconsideration in light of the Massachusetts Supreme Court's decision in
376.
377.
378.
673.
379.
380.
381.
382.
383.

462 F.Supp. 1131.

Id. at 1144.
Rennie v. Klein, 653 F.2d 836,845 (3rd Cir. 1981), quotingIngraham v. Wright, 430 U.S. 651,
634 F.2d 650 (1st Cir. 1980).
Rogers v. Okin, 478 F.Supp 1342, 1366 (D. Mass. 1979).
Rogers, 634 F.2d at 653.

Id.
457 U.S. 291 (1982).

384. Id. at 299-306.

385. Id. at 299 n.16.
386. Id.

Chemical Castration
Guardianship of Roe.387 In that case, the Massachusetts Supreme
Court, relying on federal and state law, held that noninstitutionalized
mentally incompetent patients have a protected liberty interest which
entitles them to decide whether to submit to harmful medication.?
The United States Supreme Court did not simply defer to state law,
but it instructed the First Circuit Court to consider the liberty interest

that was protected by state law.389

The federal courts' protection of individual liberty guaranteed by
state law, as promised in Mills, was foreclosed two years later by the
Supreme Court's decision in Pennhurst State School & Hospital v.
Halderman.3" In that case, resident patients at Pennhurst Institute for
the Retarded brought suit alleging a denial of their rights to rehabilitation and to protection from harm under federal and state law. 39' The
Third Circuit Court granted the residents' relief solely on the basis of
state law, with no consideration being given to the federal issues
posed.392 The Supreme Court overturned the decision, holding that the
eleventh amendment3 93 prevented federal courts from enforcing state
law against state officials who are essentially representing the state.394
The Court determined that the federal courts are not allowed to grant
prospective relief which is based exclusively on state law.395
In 1990, the Supreme Court explicitly recognized that individuals
have the right, protected by.the due proces clause of the fourteenth
3 96
amendment, to refuse medical treatment. In Washington v. Harper,
the Court upheld the State of Washington's policy which allowed the
forced administration of antipsychotic drugs to a prisoner who was
determined to be 1) suffering from a "mental disorder" and 2) "gravely

387. Id. at 306, citing Guardianship of Roe, 383 Mass. 415,421 N.E.2d 40 (1980).
388. Guardianship of Roe, 383 Mass. 415,421 N.E.2d 40 (1981).
389. The Court stated that, "Because state-created liberty interests are also entitled to the protection
of the federal Due Process Clause .... the full scope of a patient's due process rights may depend in
part on the substantive liberty interests created by state as well as federal law." Mills, 457 U.S. at 300;
See also Comment, Rights of the Mentally Ill to Refuse Medication, 13 Am.J.L. & MED.7, 39 (1987).
390. Halderman, 465 U.S. 89 (1984); see also Comment, supra note 389, at 39.

391. Halderman, 465 U.S. at 90.

392. Halderman v. Pennhurst State School & Hospital, 673 F.2d 647, 659-60 (3d Cir. 1982).
393. The eleventh amendment states that, "The Judicial power of the United States shall not be
construed to extend to any suit in law or equity, commenced or prosecuted against one of the United
States by Citizens of anotherState, orby Citizens orSubjects of any Foreign State." U.S. CONST. amend.

XI.
394. Halderman, 465 U.S. at 102; See also Comment, supra note 389, at 40.
395. Halderman, 465 U.S. at 106; See also Comment, supra note 389, at 40.
396.
-U.S........,
110 S.Ct. 1028 (1990).

AM. J. CRIM. LAW

Vol. 18:1 (1990)

disabled" or posing a "likelihood of serious harm" to himself or

others. 97 Such a finding was initially made by a psychiatrist and, if
opposed by the prisoner, would be reviewed by a special committee
of medical personnel. The prisoner retained certain rights before,
during, and after the process.398
The Court determined that the prisoner possessed "a significant
liberty interest in avoiding the unwanted administration of antipsychotic
drugs under the Due Process Clause of the Fourteenth Amendment." '99

The Court, when reviewing a prison policy which infringed on the

prisoner's constitutional rights, only had to find that the regulation was
"reasonably related to legitimate penological interests." " The Court
determined that Washington's policy was reasonably related to the
legitimate interests of the state in protecting the prisoner, other
prisoners, and the staff and providing medical treatment to the
prisoner.4 0' The Court found that the procedures adequately protected
the prisoner's liberty interests.402 Furthermore, the Court asserted that
the medical personnel who made such a decision were better suited to
the task than judges.403
In Cruzan v. Missouri,404 the Supreme Court refused to allow the
parents of Nancy Cruzan to terminate nutrition and hydration for their
daughter who was in a persistent vegetative state. The Court recognized that Nancy Cruzan had a liberty interest under the fourteenth
amendment which would allow her, if competent, to refuse nutrition
and hydration. 4 ' The Court cautioned that the recognition of a liberty
interest was only the first part of its inquiry; the liberty interest had
to be balanced against the state's interests, such as "the preservation
and protection of life. ' ' 406 Balancing the factors, the Court held that
the state could protect the relevant concerns "through the imposition
of a heightened evidentiary requirement" and require clear and con397. Id. at 1034.
398. Id. at 1033.
399. Id. at 1036.
400. Id. at 1037, (citing Turnerv. Safley, 482 U.S. 78 (1987) and O'Lone v. Estate of Shabazz,482,
U.S. 342 (1987)).
401. Id. at 1037-40.
402. Id. at 1040-44.
403. Id. at 1042-43.
404.

- U.S..

405. Id. at 2852.

406. Id. at 2853.

110 S.Ct. 2841 (1990).

Chemical Castration
vincing0 7evidence of Nancy Cruzan's "wish to terminate such treatment." 4

The Supreme Court has clearly stated that individuals have a

protected liberty interest under the fourteenth amendment which allows
them to refuse unwanted medical treatment. This permits the convicted
paraphiliac to refuse MPA treatment. The convicted paraphiliac is
competent to make treatment decisions. He presents no threat to the
staff, to other inmates, or himself. Since MPA poses possible side
effects and unknown long-term risks, the convicted paraphiliac has the
right to decide whether to accept such risks. His right to refuse medical
treatment is protected by the fourteenth amendment. If, however, the
convicted paraphiliac is to be released from commitment or granted
probation, the state's interest in protecting the public from future sex
crimes warrants the imposition of MPA treatment.
3. The Right to Treatment. The right to treatment posits that if
an individual loses his liberty by involuntary confinement, the individual is entitled to receive treatment for his condition."' The right
to treatment has been derived from both a statutory and constitutional
basis. 49 The first statutory right to treatment was recognized by the
D.C. Circuit Court of Appeals in Rouse v. Cameron.4' The court held

that an involuntarily committed individual has a right to treatment

under the Hospitalization of the Mentally Ill Act of 1964. 4" In the
companion case, Millard v. Cameron,412 the D. C. Circuit Court held
that an individual committed under the District of Columbia's "Sexual
Psychopath Statute" had the right to "therapeutic treatment" for his
condition.413
The first acknowledgement of a constitutional right to treatment
occurred in Wyatt v. Stickney.414 A federal district court, reviewing the
conditions of treatment for mental patients in Alabama, held that "to
deprive any citizen of his or her liberty upon the altruistic theory that
407. Id. at 2854-55.
408. Note, Developments in the Law-Civil Commitment ofthe Mentally 11,. 87 HARv.L. Ray. 1190,
1316-37 (1974); Birnbaum, The Right to Treatment,46 A.B.AJ. 499 (1960); See generally, The Right
to Treatment: A Symposium, 57 GEo. LJ.675 (1969).
409. Note, supranote 408, at 1318.
410. Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966); See also Note, supra note 408, at 1319-23.
411. Rouse, at 453; D.C. CODE 198 1, 21-562; W. LAFAVE, A. Scorr, CRIINALLAW(2d ed. 1986)
412. 373 F.2d 468 (M.D. Ala. 1960).
413. Id.; See notes 89-92 and accompanying text.
414. 325 F. Supp. 781 (M.D. Ala. 1971), 334 F. Supp. 1341 (M.D. Ala. 1971); 344 F. Supp. 373
(1971), Wyatt v. Anderholt, 503 F.2d 1305 (5th Cir. 1974).

AM. J. CRIM. LAW

Vol. 18:1 (1990)

the confinement is for humane therapeutic reason and then fail to pro-

vide adequate treatment violates the very fundamentals of due

process." 415 The Fifth Circuit Court of Appeals in Donaldson v.
O'Connor 16 also found that if an individual is involuntarily committed
for treatment under a "parens patriae" rationale, the due process clause
requires that minimally adequate treatment be provided. The decisions
in the Wyatt and Donaldson cases were based on a "quid pro quo"
theory which recognizes that involuntary commitment represents a massive curtailment of an individual's liberty.41 1 Since the individual is
denied the procedural protections of the criminal justice system, his
confinement can only be justified if the state provides him with
rehabilitative treatment. 8
The Supreme Court has been reluctant to embrace the constitutional right to treatment. 419 In Youngberg v. Romeo, 421 the Court did
recognize a limited right to habilitation.4 2 Romeo, a severely retarded
mental patient, was injured and shackled by the hospital staff who were
attempting to prevent his assaultive behavior. Romeo's mother brought
suit, as his next friend, seeking freedom from injury and restraint, as
well as appropriate training.4r The Court determined that an involuntarily committed individual retains a liberty interest which is protected
by the due process clause of the fourteenth amendment. 4u Such a liberty interest guarantees his safety and freedom from physical restraint
when in a state institution.424 The Court stated that "if it is cruel and
unusual punishment to hold convicted criminals in unsafe conditions,
it must be unconstitutional to confine the involuntarily committedwho may not be punished at all-in unsafe conditions. ' '4 s To protect

415. Wyatt, 325 F.Supp. at 785; Note, supranote 408, at 1324-25.

416. 493 F.2d 507,521 (5th Cir. 1974).
417. Id. at 522; For criticism of the "quid pro quo" theory, see Note, supra note 408, at 1325 n.39
and O'Connor v. Donaldson, 422 U.S. 563,585-89 (1975) (Burger, J., concurring).
418. Donaldson, 422 U.S. at 522.
419. See e.g., Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981); Vitek v. Jones,
445 U.S. 480 (1980); O'Connor v. Donaldson, 422 U.S. 563 (1975); Mills v. Rogers, 457 U.S. 291
(1982).
420. 457 U.S. 307 (1982).
421. 457 U.S. 307 (1982). The American Psychiatric Association explains: "The world
'habilitation'. . . is commonly used to refer to programs for the mentally retarded because mental
retardation is... a learning disability and training impairment rather than an illness. The principal focus
of habilitation is upon training and development of needed skills."Id. at 310 n. 1.
422. Id. at 311-12.
423. Id. at 315-16.
424. Id. at 317.
425. Id. at 316-17.

Chemical Castration
the individual's liberty interest, the Court required the state to habilitate
the individual with "minimally adequate or reasonable training. 426 The
Court noted that when reviewing such medical decisions, the Constitu-

tion only requires physicians to exercise "professional judgment., 42 It

was not for the courts to decide which treatment should be employed.428
The right to treatment, derived from the due process clause of the
fourteenth amendment, does not require a state to provide MPA treatment for convicted sexual paraphiliacs. The "quid pro quo" theory

upon which such a right depends is inapplicable to criminal offenders.429 Mental patients can only be involuntarily committed for
treatment if they are incompetent under a "parens patriae" theory or
to protect society from their harmful acts under state police power.430
Criminal offenders are not incarcerated simply for treatment. Their
liberty is curtailed because they have violated the law. Rehabilitation
is only one of the goals of the criminal justice system. Other goals
are retribution, deterrence, and public safety. These goals can be
achieved without rehabilitating the offender. 431' Furthermore, as the
Court in Youngberg pointed out, "persons who have been involuntarily
committed are entitled to more considerate treatment and conditions of
confinement than criminals whose conditions of confinement are
designed to punish."432

Such a claim for treatment with MPA was raised in Arizona v.

Christopher.433 After being convicted of child molestation, Christopher

426. The Court stated that "respondent's liberty interest require the State to provide minimally
adequate or reasonable training to ensure safety and freedom from undue restraint. In view of the kinds
of treatment sought by the respondent and the evidence on the record we can go no further in this case."

Id. at 319.
427. The Court stated that, "there certainly is no reason to think judges orjuries are better qualified
than appropriate professionals in making such decisions. For these reasons, the decision, if made by a
professional, is presumptively valid; liability may only be imposed when the decision by the professional
is such a substantial departure from accepted professional judgment, practice, or standards as to
demonstrate that the person responsible actually did not base the decision on suchjudgment."Id at 324.
428. Id. at 323.
429. Courts have held that the failure to provide rehabilitation programs is constitutionally acceptable. Newman v. Alabama, 559 F.2d 283, 291 (5th Cir. 1977); McCray v. Sullivan, 509 F.2d 1332,
1335 (5th Cir. 1975); Diehl v. Wainwright, 419 F.2d. 1309 (5th Cir. 1970); Fredericks v. Huggins, 711
F.2d 31, 34 (4th Cir. 1983); See generally,J. GOBERT & N. COHEN, THE RiGHTS OF PRISONERS (1971 &
Supp.1988).
430. See Note, supra note 408, at 1326-29.
431. Spece, Conditioningand Other Techniques Used to "Treat?", Rehabilitate?", "Demolish?"
PrisonersandMentalPatients,45 S. C L.L. REv. 616,646 n.164. The Supreme Court has stated that,
"this court has never held that anything in the Constitution requires penal sanctions be designed solely
to achieve therapeutic and rehabilitative effects .... Powell v. Texas, 392 U.S. 514,530 (1968).
432. Youngberg, 457 U.S. at 322-23.
433. 133 Ariz. 508, 652 P.2d 1031 (Ariz. 1982).

AM. J. CRIM. LAW

Vol. 18:1 (1990)

was granted probation which included two years confinement in the

county jail, with the possibility of work-release furloughs, and behavior

modification or chemical castration. While Christopher was on proba-

tion, he received "insight" therapy. After being released, Christopher

again molested children. Upon his conviction for the second offense,
Christopher's former twenty-five-year sentence was re-instituted and a
new twenty-five-year sentence was awarded. Christopher appealed the
sentence, alleging that he had a constitutional right to treatment and
rehabilitation "as a matter of due process from the purposes of proba43 4 Christion and from the state's power to deal with probationers.,,

topher asserted that since he was denied effective treatment and

rehabilitation, the eighth and fourteenth amendments precluded the imposition of a fifty year prison sentence for his offenses.
The Arizona Supreme Court rejected Christopher's claims, holding
that rehabilitation was only one of the goals of the criminal justice
system.435 The state was not required to guarantee his rehabilitation
under the Constitution. Rehabilitation simply had to be balanced with
other goals of the criminal justice system.436 The court found that
' 437
Christopher was only entitled to "minimally adequate treatment.
The court noted that it was unfortunate that Christopher did not receive
the appropriate treatment,4 38 but it would not interfere with the lower
court's discretion to reinstitute and impose a severe sentence for
Christopher's crimes. 39

434. Christopher, 652 P.2d at 1033.

435. Id.
436. Id. at 1034.
437. Id., citingYoungberg v. Romeo.
438. In the future the failure to provide appropriate treatment could serve as the basis of a tort
action. In Osheroff v. Chesnut Lodge, a patient brought suit against a mental hospital which treated
his mental disorder with psychodynamic therapy, rather than with biological therapy. In 1984, the
Maryland Health Claims Arbitration Board awarded the patient $250,000. The lawsuit generated
much comment. See Stone, The New ParadoxofPsychiatricMalpractice,311 NEW ENo. J. OF MED.
1384 (1984); Klerman, The PsychiatricPatient'sRight to Effective Treatment: Implications of

Osheroffv. Chesnut Lodge, 147, AM. J.OF PSYCHIATRY 409 (1990); Law, Science, and Psychiatric
Malpractice:A Response to Klerman's Indictment of Psychoanalytic Psychiatry, 147 AM. J. o1'

PSYCHIATRY 419 (1990); Fink, Response to the PresidentialAddress: Is "Biopsychosocial" the

PsychiatricShibboleth?, 145 AM. J. OF PSYCHIATRY 1061 (1988); and Malcolm, Treatment Choices
and Informed Consent in Psychiatry: Implications of the Osheroff Casefor the Profession, 14 J.
PSYCHIATRY & LAW 9 (1986).

439.

Christopher, 652 P.2d at 1034-35.

Chemical Castration
V. THm GOALS OF CIMINAL

PUNISHMENT

Criminal law is based on the assumption that an individual possesses rational capacity which is the ability to understand, reason, and
direct his actions by informed choices." 0 These capabilities entitle the
individual to the liberty which is necessary to function within society,
with an understanding of his rights and duties."1 When the individual
voluntarily chooses to engage in actions which are proscribed by the
law, the individual is punished for his offense." 2
There is ongoing debate over whether punishment should be punitive or curative." 3 The punitive or retributive model posits that crime
is the product of rational choice by an individual exercising his free
will. His punishment should be proportionate to his actions." 4 Adherents to the punitive approach perceive "a mystical bond between
wrong and punishment.""' 5 The curative or utilitarian approach focuses
on the prevention of future crime, rather than the punishment of past
actions.44 Punishment is "only a means to an end."" 7 The utilitarians
stress deterrence, rehabilitation, and public safety."4 Because neither
position has been adopted exclusively, punishment serves many goals:
retribution, deterrence, public safety, and rehabilitation.
The criminal law is concerned with retribution which is "the application of the pains of punishment to an offender who is morally
guilty." "4 9 Retribution involves balancing the severity of the punishment with the gravity of the offense.45 Such a balancing should reflect
the least restrictive alternative which accomplishes the legitimate goals
of the state.45' Retribution should not be the principle concern of the
440. H.L.A. HART, PUNISHMENT & RESPONSIBIL'TY, 22-23,44-49, 181-83,215-30 (1968).
441. Id.
an individual breaks the law, when none of the excusing conditions are
442. According to Hart, "If
present he is ordinarily said to have acted out of 'his own free will', ' of his own accord,' 'voluntarily',
or it might be said 'he could have helped what he did.' Id. at 28.
443. Note, supranote 242, at 915.
444. Id.at915-18.
445. Id. at 915, (citing O.W. HOLMES, THE COMMON LAw 42 (1881)).
446. Id. at 915,918-24.
447. Id. at 915 n.190, (citing Packer who described the difference between the retributivists and
utilitarians in a similar fashion: "On the one hand, there is the view that punishment of the morally
derelict is its own justification. On the other, there is the view that the only proper goal of the criminal
process is the prevention of antisocial behavior." H. PACKER, THE LiMITs OF CRIMINAL SANCTION 53
(1968).).
448. See Note, supra note 242, at 915.
449. HART, supra note 440, at 9.
450. See Note, supra note 242, at 916.
451. Id.; See also, ABA, supra note 100, at 58-59.

AM. . CRIM. LAW

Vol. 18:1 (1990)

state when dealing with offenses committed by paraphiliacs.45 2 These

individuals are incapable of controlling their behavior. They are
motivated to commit sex crime to fulfill their sexual fantasies which

are driven by testosterone. They manifest a psychological state which

is the product of a physiological condition. In many respects
paraphiliacs are similar to women suffering from premenstrual
syndrome and individuals suffering from an episodic cerebral dysfunction.
Premenstrual Syndrome (PMS) is a hormone deficiency which is
characterized by "changes in mood, behavior, and physical symptoms"
relating to a woman's menstrual cycle.453 Studies have demonstrated
that PMS can intensify underlying psychological conditions and result
in antisocial conduct. 454 One of the suggested treatments for PMS is
the injection of progesterone supplements, much like MPA, which
relieve the symptoms. 455 PMS has been accepted as a defense for
criminal actions in England4 56 and commentators in the United States
have advocated this position.457
Episodic cerebral dysfunction, otherwise known as psychomotor
epilepsy, is characterized by recurrent, spontaneous, transient, temporary changes in brain activity.458 The individual manifests alternative
states of consciousness and, in some instances, convulsions. 459 The
individual can exhibit atypical and bizarre behavior which is not subject
to conscious control.460 The type of episodic behavior demonstrated
depends on the location of the brain dysfunction.4 61 Psychomotor
epilepsy has been upheld as a defense in criminal actions.462
452. See Freund, supra note 167, at 576-77.
453. Taylor and Dalton, PremenstrualSyndrome: A New Criminal Defense?, 19 CAL W.L. REv.
269,271-74(1983).
454. Id. at 274-76.

455. Id. at 276 nn.42-45.

456. Regina v. Smith, 1982 Crim. L. Rev. 531 (C.A.); Regina v. Carddock, 1981 1 C.L. 49, cited
in Note, PremenstrualSyndrome: A CriminalDefense, 59 NOTREDAMEL. REv. 253, 253 n. 3 (1983).
457. Taylor and Dalton, supranote 453; see also People v. Santos, No. 1K046229 (Crim. Ct. N.Y.
November 3, 1982) (cited in Note, supranote 4456 at 253 n.1.)
458. Feldman, Episodic CerebralDysfunction:A Defense in Legal Limbo, 9 J. PsYCHIATRY & LAW
193,196 (1981); See generally,Note, Epilepsy, The Alternativefora CriminalDefense,27 CAsE W. L.
R. 771 (1977).
459. Feldman, supra note 458, at 196.
460. Id.
461. Id. at 198.
462. Id. at 200-01, (citing Sprague v. State, 52 Wis. 2d 89,187 N.W.2d 784 (Wis. 1971); People v.
Codanre, 245 N.Y.S.2d 81,20 A.D.2d 98 (N.Y. 1963); People v. Higgins, 186 N.Y.S.2d 623,5 N.Y.2d
607, 159 N.E.2d 179 (N.Y. App. Div. 1959); People v. Furlong, 79 N.E. 978 (1907); People v. Grant,
461. App. 3d 125,360 N.E.2d 809 (Ill. App. Ct. 1977)).

Chemical Castration
Paraphilia, PMS, and psychomotor epilepsy are physical conditions
which cause temporary mental and emotional dysfunctions. Individuals
suffering from these syndromes should be considered to be acting under
diminished capacity.463 The diminished capacity defense recognizes a
range of actions which lie between free will and insanity.4 4 It repre465
sents an awareness that a disease is not an all or nothing proposition.
The diminished capacity defense diminishes the severity of the offense
which affects punishment.466 It is a compromise between exculpation
and punishment.467 Individuals whose actions are the result of persistent physiological or psychological conditions which make them incapable of controlling their behavior, should receive treatment, not
punishment, for their conditions.
The criminal law is designed to provide for specific and general
deterrence. The punishment should deter future crimes by the offender
and other individuals. 468 H. L. A. Hart argues that punishment serves
its deterrent function by example.469 Punishment will not serve to deter
the specific paraphiliac offender or other paraphiliacs. These individuals are not economically rational actors who weigh the cost of
their actions-incarceration-against their benefits, the realization of

their sexual fantasies. 470 These individuals are compelled to commit

sex offenses in order to fulfill their incessant sexual fantasies. Consequently, the threat of imprisonment will not deter their actions, as
evidenced by their high rate of recidivism.47
The criminal law should also protect the public by removing the
threat represented by the offender. 472 While the paraphiliac is confined
or incarcerated, he poses minimal threat to the public. Confinement
463. See Taylor and Dalton, supra note 453, at 281-83; Feldman, supranote 458, at 197-99.
464. See Tayor and Dalton, supra note 453, at 282.
465. Id.
466. Id.; See also LAFAvE & Scott, supra note 404, at 4.7, pp. 368-77.
467. See, LAFAvE & Scorr, supranote 411, at 375.
468. See Note, supra note 242, at 920-21.
469. HART, supra note 440, at 208.
470. See J. Q. WILsoN, THRIKING ABOUT CRIME, 45-46 (1975).
471. Van Moffaert, supra note 47, at 29-30, states that the rate of recidivism for sex offenders is
between 43.2% and 51.5%; WALKER, supranote 10, surmises that only 1% of all sex criminals are
caught; Ortmann, supra note 13, Bradford, supranote 13; DSM-Ill, supranote 9, at 281, states that
"judging from the large commercial market inparaphilic pornography and paraphernalia, the prevalence
in the community is believed to be far higher than that indicated by statistics from clinical facilities.
Because of the highly repetitive nature of paraphilic behavior, a large percentage of the population has
been victimized by people with paraphilias."
472. See Note, supra note 242, at 919.

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or incarceration does nothing to address the paraphilia and may in fact

cause it to worsen.473 If the paraphiliac is released without receiving
the appropriate treatment he will continue to commit sex crimes.474
The criminal law is also concerned with the rehabilitation of offenders.475 Treatment with MPA brings the paraphiliac's compulsive
sexual urges under control, thus making him amenable to psychotherapy. Through psychotherapy, the paraphiliac can readjust his life
and become a productive member of society. While he is undergoing
the treatment, he poses no threat to society. The rehabilitation of the
paraphiliac accomplishes the retributive, deterrent, and public safety
goals of the criminal law.476
It has been argued that rehabilitating the sexual offender, rather
than punishing him, demeans his autonomy and integrity. 477 The sex

offender, as an autonomous individual, freely chooses to commit sex

crimes. His choice includes the consequences of his actions. Society

must respect this choice which entitles the sex offender to punishment.478 Offering the paraphiliac MPA treatment as a condition of

punishment does not deprive him of his moral right to punishment.

The paraphiliac does not freely choose to commit sex offenses. He is
compelled to act. His choices are not the product of his free will;

therefore, they should not be accorded such respect.4 79 Furthermore,

473. Van Moffaert, supranote 47, at 29-30, Berlin, supranote 10 at 111; WALKER, supra note 10,
at 432.
474. Van Moffaert, supranote 47, at 29-30; Berlin, supranote 10 at 111; WAt.KE, supra note 10,
at 432.
475. See Note, supra note 242, at 921-25; ABA, supra note 100, at 63-67; PACKER, supranote 447,
at 53 (1968) stated, "The most immediately appealing justification for punishment is the claim that it
may be used to prevent crime by so changing the personality of the offender that he will conform to the
dictates of law; in a word, by reforming him."; E. VAN DEN HAo, PUNISHING CIMNALS 58,

"Rehabilitation is meant to change the offender's intent, motivation, or even character toward law-abiding conduct."
476. See Freund,supra note 167, at 580.
477. See Demsky, The Use of Depo-Proverain the Treatment of Sex Offenders: The Legal Issues,
5 1. LEG. M . 195, 315-18 (1984).
478. This moral right which is derived from the fundamental right to be treated as a person was
espoused by H. Morris, PersonsandPunishment,in PuNIsHMENr & REHABILITATION 40 (J. Murphy ed.
1973). The right to punishment can be summarized as follows,
Persons are entitled to have their choices respected; therefore, when one chooses responsibly to engage in reprehensible conduct prohibited by a just system of criminal law,
one chooses also the consequences of his offense: punishment. That choice is to be
respected. Non-punitive responses, most notably compulsory therapy, which regards
deviant conduct as merely symptomatic of pathological conditions rather than actions
of responsible human agents, fail to respect the rational choices, and thus the personhood of the offenders.
Gardner, TheRightto be Punished-ASuggested ConstitutionalTheory, 33 RtraEns L. Rhv. 838 (1982).
479. See Berlin and Coyle, supranote 16.

Chemical Castration
the convicted paraphiliac cannot be forced to undergo MPA treatment,
he must give his informed consent for the treatment.
VI. CONCLUSION

MPA treatment should be considered an acceptable innovative

therapy for the treatment of convicted paraphiliacs. In twelve states
and the District of Columbia, the paraphiliac can be committed as a
"sexual psychopath.480 This type of confinement entitles him to treatment for his condition. Since MPA is one of the few treatments which
have been demonstrated to be effective in diminishing sexual
paraphilia, the offender should be given the opportunity to receive such
treatment. MPA treatment will minimize the offender's confinement
as a sexual psychopath and allow him to continue his rehabilitation.
Treatment with MPA should be considered an acceptable condition
for probation. If the paraphiliac is given the opportunity for probation
with MPA treatment, he will not be incarcerated. He will be able to
remain in the community to work and to be rehabilitated, while posing
a minimal threat to the community. If the convicted offender is incarcerated, he will be separated from his family, friends, and the community. He will suffer stigmatization and the harrowing experience of
prison. If the offender does not receive the appropriate treatment in
prison, his paraphilia will continue and may worsen; thus, he will continue to pose a threat to society when he is released.
The convicted paraphiliac has the capacity to give informed consent to treatment with MPA. The doctrine of informed consent has
informational and volitional components. The long-term effects of
MPA are not yet known, but this lack of knowledge does not preclude
compliance with the informational requirement. The convicted offender must be given all the information which is presently known
concerning MPA treatment. Granted the possibility of release from

confinement or probation, with MPA treatment, is a far more attractive

alternative than confinement or incarceration, but the convicted sex
offender still has the capacity to decide whether to undergo the treatment. This choice might be unpleasant, but the Supreme Court has
upheld such choices. The convicted paraphiliac can choose freedom
and rehabilitation, rather than confinement or incarceration and possib-

480. See supra note 6.

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ly recidivism. The state should not intrude on the offender's autonomy

to make such a choice under the guise of paternalism.
Treatment with MPA does not violate the paraphiliac's constitutional rights which protect his mental and bodily autonomy and integrity. The administration of MPA does not violate the first

amendment which protects the sexual offender's mental autonomy.

MPA treatment is not so intrusive as to infringe on the offender's
freedom of thought. Treatment with MPA is not a form of mind control. In fact, the paraphiliac, freed from his compulsive sexual fantasy,
has a greater capacity to generate free thought. If MPA treatment is
judged to be so intrusive as to violate the first amendment's protection
of freedom of thought, the state will be required to demonstrate a compelling state interest to justify its use. While the paraphiliac is confined
or incarcerated, the state has no compelling interest which justifies an
intrusion of the offender's mental autonomy. If the offender is to be
released into the community, the state's interest in the prevention of
future sex crimes justifies the requirement of MPA treatment. There
are also other conceptual frameworks which can be utilized to analyze
the possible intrusion of the offender's first amendment rights. The
paraphiliac's compulsive sexual fantasy poses a clear and present
danger of producing imminent unlawful action which the state has the
right to prevent. Further, the state's legitimate interest in preventing
criminal behavior is accomplished through the administration of MPA.
MPA treatment does not violate the eighth amendment. MPA is
a legitimate medical treatment. MPA has therapeutic value and is used
as part of an ongoing program of psychotherapy. MPA is not administered for experimental purposes. MPA represents one of the few
effective treatments for paraphiliacs. If MPA treatment is viewed as
punishment, it still complies with the requirements of the eighth amendment. The treatment is not inherently cruel in its effects. The punishment is proportional to the offense because the treatment can only be
required for the term of the offense. Furthermore, MPA treatment represents the least restrictive alternative to realize the goals of the

criminal justice system.

MPA does not violate the sexual paraphiliac's right to privacy or
fourteenth amendment liberty which protects his bodily autonomy. The
right to privacy protects an individual's procreative choices. A
paraphiliac would be given the choice of whether to undergo MPA
treatment. A paraphiliac undergoing MPA treatment still has the ability
to engage in sex and beget children. The liberty which is protected

Chemical Castration
by the due process clause of the fourteenth amendment allows an individual to refuse unwanted medical treatment, even if it is beneficial.
Furthermore, if a paraphilic offender loses his liberty as a result of a
criminal conviction, he does not have a right to MPA treatment, unless
he is committed as a sexual psychopath.
MPA treatment comports with the goals of the criminal justice
system. In realizing its retributive goals, the state should utilize the
least restrictive alternative. Releasing the paraphiliac from confinement or granting him probation, with MPA treatment, is far less intrusive on his liberty than confinement or incarceration. Retribution
should not, however, be the central concern of the state when dealing
with the paraphiliac who is acting under diminished capacity. Instead,
the state should focus on rehabilitating the paraphilic offender.
There is some criticism concerning the broader implications of
MPA treatment which should be addressed in closing. First, critics
assert that since the concept of sexual deviance is so vague and
idiosyncratic, harmless behavior will be included within the category
of offenses which are subject o MPA treatment.4"' This criticism fails
to recognize that no offender can be forced to undergo MPA treatment.
Each offender must give his informed consent and has the right to
refuse MPA treatment. As with any other form of medical treatment,
the consenting patient will be informed of the chance that the treatment
will be ineffective.
Second, critics contend that there is a tendency to consider all sex
offenders as being comparable, but there is a wide difference in behavior among sex offenders. This tendency to generalize will subject
inappropriate offenders to MPA treatment.4 2 This criticism attacks the

integrity and legitimacy of the medical profession. It must be assumed

that physicians will only prescribe medically accepted treatments.
Presently, MPA has only been shown to be an effective treatment for
paraphilic offenders. This class of offenders is identifiable through
psychiatric examination. MPA should only be prescribed for those offenders to whom it offers the promise of hope. Otherwise, MPA is an
inappropriate or ineffective treatment, or punishment,
masquerading as
483
treatment, which violates the eighth amendment.
481. Tancredi and Weisstub, Technology Assessment. Its Role in ForensicPsychiatryand the Case
ofChemical Castration, 8 INT. J. OF L. & PSYCHIATRY 257,268-69 (1986); See also Halleck, supranote
128, at 642.
482. Id.
483. Note, supra note 242, at 949-56.

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Third, critics argue that the lack of specificity and clearly defined
treatment goals present the possibility that chemical castration and
other intrusive techniques will be used in the future for political repression.484 The critics fail to recognize that presently paraphilic offenders

are being confined as sexual psychopaths and incarcerated for the commission of sex offenses over which they have no control. This represents a present loss of liberty. The critics also fail to acknowledge
that MPA treatment actually increases the paraphiliac's freedom of
thought. Furthermore, there is always the potential for abuse with any
medical treatment, but this does not justify the prohibition of the treatment.
It must be recognized that the incarceration of paraphiliacs is a
futile exercise. Science has provided a treatment which increases the
liberty of the offender, deters future crime, provides public safety,
facilitates the rehabilitation of the offender, and strengthens the
legitimacy of the criminal law. This new avenue of scientific progress
should be pursued. MPA treatment should be utilized to treat convicted
paraphiliacs and the results should be examined. These studies will
demonstrate whether MPA is an effective treatment and suggest future
avenues for such research. As Norvall Morris noted:
Correctional practices must cease to rest on surmise and good
intentions; they must be based on facts. We are under a moral
obligation to use our best intelligence to discover whether and to
what extent our various penal sanctions do in fact reform.485

484. See Tancredi and Weisstub, supra note 481, at 269.

485. Morris, Impediments to Penal Reform, 33 U. CHL L. REV. 627,638 (1986).