By Lisa Forsberg and Thomas Douglas.

The UK’s Secretary of State for Justice, Shabana Mahmood, is considering a ‘national rollout of voluntary chemical castration for sex offenders’. Chemical castration uses medications that lower testosterone activity with the intention of reducing libido. Extending use of chemical castration in sex offenders is one of the recommendations of the recently published Independent Sentencing Review into ‘the prison overcrowding crisis and to consider alternative punishments to custodial sentences’. Mahmood is also examining whether chemical castration ‘could be made mandatory’. The Independent Sentencing Review, on the other hand, emphasises that ‘valid, informed consent’ to interventions ‘is a key tenet of medical law in England and Wales’, and ‘recommends exploring how the scheme operates on a voluntary basis rather than mandatory basis’. Some commentators have expressed similar views, suggesting that attempts to impose chemical castration without the patient’s consent would be unethical and perhaps unlawful.

The assumption that chemical castration should only be administered with the recipient’s consent is understandable. It is widely accepted that individuals who have decision-making capacity have a robust—sometimes described as ‘absolute’—right against bodily interference. As the Independent Sentencing Review notes, the right against bodily interference is a central principle in English law and in the law in many other jurisdictions. This right applies even when the patient’s reasons for refusing an interference/intervention are bizarre, irrational, or non-existent, and when the refusal will certainly lead to their death. Individuals’ right against bodily interference also enjoys robust protection in human rights law. Chemical castration is usually administered via an injection, so would infringe the recipient’s right against bodily interference, unless they had waived the right by consenting to the intervention.

Nevertheless, it is not obvious that recipient consent would be morally (or legally) required for chemical castration in sex offenders.

For one thing, the right to against bodily interference is not normally regarded as absolute. In England and Wales, mental health law permits not just detention but also the provision of a range of nonconsensual interventions—including interventions that interfere with individuals’ bodies—to those detained under mental health law, both for the protection of individuals themselves, and for the protection of others.  This is the case even when the patient has decision-making capacity. The same is true of mental health law in many other jurisdictions. Of course, to justify such infringements of the right against bodily interference, the risk to self or others must be severe. But this condition would be satisfied by some sex offenders; those convicted of serious sex offences often pose an equally or more serious threat to others than those detained and treated under mental health legislation.

It might be objected that sex offenders don’t necessarily have a mental health diagnosis, and that they should therefore be treated in line with principles of general health law—which don’t permit non-consensual interventions. But it is not clear why the presence or absence of a diagnosis is relevant, at least in cases where the diagnosis is consistent with retaining decision-making capacity. Indeed, it seems discriminatory to treat those with mental health conditions more restrictively than equally risky individuals without such a condition. In addition, many sex offenders do meet the diagnostic criteria for paraphilia.

Moreover, those considered potential chemical castration recipients under the UK government’s proposal will generally have been convicted of serious crimes and thus already made themselves liable to be treated in certain ways in which it would not be permissible to treat non-offenders. The idea here is that, by committing a criminal offence, they partially forfeit some of their rights or activate an exception clause built into the relevant rights. This explains why it may be permissible to impose incarceration on a criminal offender even though it would not be permissible to impose such external constraint on a person who had not committed a criminal offence, even if that person poses a similar risk to others. That offenders have made themselves liable to such treatment means that their rights are not infringed by that treatment. Thus, this sort of justification does not rely on the claim that the relevant rights are not absolute; it could potentially justify forms of treatment that would, if imposed on non-offenders, infringe an absolute right.

Which of offenders’ rights are affected by their criminal conduct? If they have rendered themselves liable to external constraint such as incarceration, may they also have rendered themselves liable to certain medical interventions?

It is often assumed that interventions that interfere with their bodies are excluded from the range of measures to which criminal offenders render themselves liable. This might be because their right against bodily interference is so robust that the protection it offers is not affected by one’s criminal offending.

But it is not obvious that our rights against bodily interference are any more robust than our rights to freedom of movement and association—rights that seemingly do lose some of the protective force following commission of a serious criminal offence. The right against bodily interference may be thought to be especially important, and so perhaps especially robust, because our bodies are so closely connected to our ‘selves’; because we are embodied beings, interference with our bodies may be perceived as interfering with our inner sphere. And it could be argued that even a serious offender should enjoy protection of their inner sphere. But social relationships are also closely related to our selves, and the strict restrictions on freedom of movement and association involved in incarceration severely impede the prisoner’s ability to form and maintain these relationships. These restrictions arguably also interfere with the prisoner’s inner sphere.  This makes it hard to object to mandatory chemical castration while accepting mandatory incarceration.

Another aspect to consider is that sex offenders are often expected to undergo psychological or behavioural programmes in prison. It is sometimes assumed that psychological programmes are more easily justified than chemical castration, or that consent would be less important in respect of such interventions than for interventions that involve interference with our bodies. But why should this be? One thought might be that psychological programmes are less risky than chemical castration. But it’s not clear that this is the case. Some psychological interventions pose a significant risk of harm. For example, some psychological programmes that used for sex offenders have been found to actually increase offenders’ recidivism risk. Another thought might be that psychological programmes are in some sense easier for prisoners to resist; they can always choose not to engage with the therapist. If they don’t disengage, then, this could be taken as their implicitly consenting to the intervention. But patients will often lack sufficient opportunity to disengage: there is often background pressure to engage with the intervention. For sex offenders in prison, there will often be considerable institutional pressure to engage with psychological programmes, even when they are not mandatory, and in addition there might be pressure from, for example, family members. Moreover, it’s not clear that we know enough about how psychological interventions work and affect people to be confident that they are resistible, such that someone can just choose not to engage and thereby remain unaffected. It is thus not clear that mandatory psychological interventions are any easier to justify that mandatory chemical castration.

Authors: Lisa Forsberg and Thomas Douglas

Affiliations:

LF: Uehiro Oxford Institute & Somerville Colleg, University of Oxford

TD: Uehiro Oxford Institute & Jesus College, University of Oxford

Competing interests: None declared