The Singapore Law Gazette

Incapacitating Chemical Castration

Singapore is not insulated from serious sexual offences. Strong emotions naturally erupt over sexual deviants desecrating their victims and robbing them of their innocence. In the court of public opinion, many chanted for chemical castration to be used as a tool on such offenders to exact justice. The article examines the transient merits of the fascination with chemical castration and concludes, in a diametrically opposite view, that such ideas remained cleaved by logic and reason and are at best, fleeting imagination.

Sexual offences are abhorrent crimes and do not abate with time. As such, it cannot be denied that cases of sexual offences, especially those involving vulnerable victims including young children evoke strong emotions and public war cries to severely punish the deemed abominable members of the human society. Irrefutably, the innocence of the victims cannot be restored in such cases.

On 15 April 2022, an article from Today online stated that the Ministry of Home Affairs (MHA) was proposing indefinite detention of perpetrators of serious hurt and sexual crimes.¹Daryl Choo, “Indefinite detention for serious hurt and sexual crimes: Recent cases of ex-convicts reoffending prompted review, says MHA”. Today (15 April 2022) <https://www.todayonline.com/singapore/indefinite-detention-serious-hurt-and-sexual-crimes-recent-cases-ex-convicts-reoffending-prompted-review-says-mha-1874216> (accessed on 17 February 2023). It was revealed in the same article that the number of sexual crimes remained relatively stable from 2017 to 2021.

Although recidivism was abating, MHA detected a number of cases where ex-offenders of sexual offences reoffended shortly after their prison terms. One case involved a factory worker who was imprisoned for rape of his 11-year-old niece and reoffended within two years of his release from prison, by sexually assaulting his 12-year-old stepdaughter. Another case involved a repeat offender who posed as a government inspector and sexually assaulted two sisters, 12 and 16 years of age.

There are two inferences to draw. First, the current punishment regime for serious sexual offences caters for imprisonment, and fine or caning. Since, the sexual crime rate remains stable, one can surmise that the current modalities of punishment possibly does not effectively deter potential sex offenders as there is no significant decrease in sexual offences from 2017 to 2021. Second, repeat offenders are a serious cause of concern and to adequately protect the public from them, proposals are being studied to detain them till they are no longer assessed to be a threat to society.

Before the train had even chugged into motion on how the government can arrest the problems, the courts had to deal with the case of Public Prosecutor v CJH [2022] SGHC 303, where the accused raped his own sister since she was nine years old to 11 years of age. The accused was only 15 years of age when he committed the offences and was 20 years old at the time of sentencing. He was sentenced to 18 years of imprisonment with 16 strokes of the cane for three proceeded charges of sexual penetration. There were six other sexual offences taken into consideration for the purposes of sentencing.

In another case of Public Prosecutor v BVR [2022] SGHC 198, the accused sexually abused eight victims over 16 years. At the time of the offences, some of the victims were as young as five years of age. The accused was a volunteer at two community centres and tutored children. Some of the children were those with special needs. He disguised himself as an educational therapist when he was not. He was in fact a predatory pedophilic lion who preyed on vulnerable impalas. He was sentenced to 45 years of imprisonment for six proceeded charges of aggravated rape. There were 80 sexual abuse charges taken into consideration for the purposes of sentencing. The accused was not given any strokes of the cane as he was over 50 years of age.

Even President Halimah Yacoob aptly ignited a flurry of discussion in the legal fraternity when she suggested that rapists above 50 years of age should be caned.²Jean Iau, “President Halimah calls for review of law excluding rapists over 50 from caning: 5 worst cases”. The Straits Times (19 December 2022) <https://www.straitstimes.com/singapore/time-to-review-law-allowing-rapists-over-50-to-avoid-the-cane-president-halimah-yacob> (accessed 3 February 2023). Some lawyers further suggested chemical castration as an option.³Low Youjin, ‘Rapists above 50 exempted from caning: Any change to law needs ‘serious debate’, chemical castration an option, say lawyers” Today (20 December 2022). <https://www.todayonline.com/singapore/caning-rapists-age-50-chemical-castration-changes-law-debate-parliament-lawyers-2075451> (accessed 3 February 2023).

This article thus explores whether chemical castration is suitable and viable to be included in the weaponry of the courts. The pertinent issue is whether the traditional penal approaches of imprisonment, fine and/or caning can be further augmented by the proposed and perceived chilling effects of chemical castration to halt such heinous crimes.

As discussed above, there is no significant decrease in sexual offences under the current modalities of punishment for 2017 to 2021. In addition, MHA is rightly concerned about the recidivism. In essence, by injecting chemical castration as a modality of punishment into the current arsenal, will it serve to effectively deter sex offenders as well as to appease the public furore over such repulsive behaviour?

This article, regrettably, concludes that chemical castration is at best a disappointing lukewarm consideration that will possibly not inhibit potential and repeat offenders. It could on the contrary, even provide a false sense of security to the populace and future victims’ innocence would be buried away in the arid excitement.

What is Chemical Castration?

This is a process where drugs⁴For example, Goserelin, Histrelin, Leuoprolide. are used to reduce the production of sex hormones. Medically, it can be used to treat breast cancer and prostate cancer.⁵Cleveland Clinic, “Chemical Castration” (26 January 2022) <https://my.clevelandclinic.org/health/treatments/22402-chemical-castration> (accessed 20 January 2023). Legally, it can be used to mitigate against socially unacceptable sexual behaviour.

Androgens such as testosterone and dihydrotestosterone are made in the testicles. Hormones known as the Luteinizing hormone-release hormone (LHRH) from the pituitary gland will instruct the testicles to produce the androgens. In a form of chemical castration, by taking LHRH agonists, a higher production of the LHRH with a corresponding androgen surge will result. Thereafter, the pituitary gland will reduce production of the LHRH and the testicles will also reduce production of the androgens. This will lead to an effect akin to a surgical castration.⁶Healthline, “What is Chemical Castration?” (12 January 2021) <https://www.healthline.com/health/chemically-castrating> (accessed 20 January 2023)

Chemical castration is to be contrasted with surgical castration⁷Orchiectomy which is irreversible. Ultimately, both castration methods aim to reduce the levels of the androgens, which are believed to be the culprits of insatiable libido and sexual violence in sex offenders.

Some regions such as certain states of the United States of America (USA),⁸Charles L Scott and Trent Holmberg, “Castration of sex offenders: prisoners’ rights versus public safety.” (2003) 31(4) The Journal of the American Academy of Psychiatry and the Law 502-9, PMID: 14974806 Canada⁹Matthew R. Kutcher, “The Chemical Castration of Recidivist Sex Offenders in Canada: A matter of Faith” (2010) 33:2 Dalhousie Law Journal 193-216 <https://digitalcommons.schulichlaw.dal.ca/dlj/vol33/iss2/7/> (accessed on 21 February 2023)., Germany and South Korea¹⁰Joo Yong Lee and Kang Su Cho, “Chemical Castration for Sexual Offenders: Physicians’ Views” (2013) 28(2) Journal of Korean Medical Science 171-172, PMCID: PMC3565125 provide for chemical castration in the bid to reduce recidivism of sexual offenders and the efficacies of such treatment were explored. Certain states of USA have gone further to provide for surgical castration.¹¹Charles L Scott and Trent Holmberg, “Castration of sex offenders: prisoners’ rights versus public safety.” (2003) 31(4) The journal of the American Academy of Psychiatry and the Law 502-9, PMID: 14974806

Thailand has also recently jumped onto the bandwagon to adopt chemical castration as an option to curb recidivism.¹²“Thailand on verge of using voluntary chemical castration for sex offenders” Channel News Asia (12 July 2022) <https://www.channelnewsasia.com/asia/thailand-chemical-castration-sex-crime-prison-2804416> (accessed 20 January 2023).

Clearly, established societies are disillusioned with the presumed ineffectiveness of the traditional modes of punishment in such egregious cases and turn to chemical castration as a ray of hope.

USA

California was the first state in USA to promote the use of either chemical or surgical castration for sex offenders. Other states that utilize either or both castration methods to curb recidivism include Florida, Iowa, Georgia, Louisiana, Montana, Oregon, Texas and Wisconsin.¹³USATODAY, “Bill proposes chemical castration for some sex offenders in New Mexico” (26 January 2023) <Chemical castration for sex offenders in New Mexico proposed in bill (usatoday.com)> (accessed on 21 February 2023). Alabama followed California’s lead in 2019.¹⁴The New York Times, “What to Know About the Alabama Chemical Castration law” (11 June 2019) <What to Know About the Alabama Chemical Castration Law – The New York Times (nytimes.com)> (accessed on 21 February 2023). New Mexico is proposing similar legislation in 2023.¹⁵USATODAY, “Bill proposes chemical castration for some sex offenders in New Mexico” (26 January 2023) <Chemical castration for sex offenders in New Mexico proposed in bill (usatoday.com)> (accessed on 21 February 2023).

In a psychiatry law study in 2003 on the topic,¹⁶Charles L Scott and Trent Holmberg, “Castration of sex offenders: prisoners’ rights versus public safety.” (2003) 31(4) The Journal of the American Academy of Psychiatry and the Law 502-9, PMID: 14974806 the authors surveyed the landscape of chemical and surgical castration laws then in USA and noted that there were constitutional issues, in relation to their own constitution, with such castration legislation. More interestingly, the authors observed that there was no homogenization in the application and operation of the laws between the states. For example, the sexual behaviour that would trigger the castration laws differed in the states, the age of the victims to trigger the castration laws differed as well and whether the castration is voluntary or enforced was not uniform. In addition, costs of the castration, subsequent monitoring of the offenders and the type of treatment drugs used and the treatment process were also not in tandem.

The efficacy of the legislation for chemical or surgical castration in reducing sexual offences was also not discussed. It would, justifiably, be very difficult to measure the effectiveness with such pervasive permutations existing in the different states.

Germany

Sexual offenders in Germany can be treated with testosterone lowering medication under a hospital treatment order (HTO) in the psychiatric hospitals.

In an extensive study published in 2020¹⁷Julia Sauter, Daniel Turner, Peer Briken and Martin Rettenberger, “Testosterone-Lowering Medication and Its Association with Recidivism Risk in Individuals Convicted of Sexual Offences” (2021) 33(4) Sex Abuse 475-500, PMCID: PMC 8072038 involving 481 patients, it was found that there was a decrease in sexual urges among the majority of the patients under the HTO. However, the same was not true for deviant sexual fantasies. The study further stated that psychiatrists and/or psychotherapists substantially underestimated the sexual deviant behaviour in their patients and there could be a perception bias that the said testosterone lowering treatment produces a positive outcome. The study concluded that after discontinuing treatment with testosterone lowering medication, sexual fantasies and urges may surge again. Not surprisingly, the study stated that it is not apparent that the testosterone lowering medication had an edge over psychotherapeutic¹⁸Treatment by talking to psychiatrist, psychologists and/or mental health professionals. treatment in sexual offenders.

Korea

In a short article written by two physicians on Korea’s implementation of chemical castration in 2011,¹⁹Joo Yong Lee and Kang Su Cho, “Chemical Castration for Sexual Offenders: Physicians’ Views” (2013) 28(2) Journal of Korean Medical Science 171-172, PMCID: PMC3565125 (accessed on 21 February 2023). it is telling that the authors opined that it was not certain that the lowering of testosterone levels will affect sexual offending. Nevertheless, they were of the view that surgical castration reportedly produced definitive results in reducing recidivism and chemical castration resulted in low levels of recidivism. They went on to conclude that chemical castration reduced recidivism when coupled with psychotherapeutic treatment.

Canada

In a comprehensive Canadian legal article,²⁰Matthew R. Kutcher, “The Chemical Castration of Recidivist Sex Offenders in Canada: A matter of Faith” (2010) 33:2 Dalhousie Law Journal 193-216 <https://digitalcommons.schulichlaw.dal.ca/dlj/vol33/iss2/7/> (accessed on 21 February 2023) the author explained that chemical castration as an option is highly dependent on experts’ views before deciding on whether the sexual offender can be controlled within the community. The author aptly noted that in conventional medical treatments, the research focused on how drug therapy helped the patient in the disease. For chemical castration, it is unconventional as its main role is to prevent the individual from harming society. As such, the assessment of the efficacy should not be the same as conventional treatments. The author unwaveringly concluded that the clinical evidence did not support the use of chemical castration in criminal law. In addition, on the whole, the author explicitly stated that the employment of chemical castration in the Canadian legal system is misguided. It further created a false sense of security in the general public as releasing serious sexual offenders was dangerous to children and potential victims.

Is Chemical Castration Effective in Deterring Potential Sexual Offenders and Reducing Recidivism?

Lifting the cloud of euphoria on chemical castration, it must be noted that the utilization of chemical castration is effectively a treatment option. It is often linked to the consent of the sex offenders and their eligibility for release from incarceration.²¹Thomas Douglas, Pieter Bonte, Farah Focquaert, Katrien Devolder and Sigrid Sterckx, “Coercion, Incarceration, and Chemical Castration: An Argument From Autonomy” (2013) 10 Bioethical Inquiry 393-405, PMCID: PMC 3824348 There is no apparent consensus on the threshold for chemical castration to be triggered, when should chemical castration be offered, who should pay the costs of the treatment, who should pay the costs of monitoring the sex offenders and what happens if there is no compliance by the offenders.²²Charles L Scott and Trent Holmberg, “Castration of sex offenders: prisoners’ rights versus public safety.” (2003) 31(4) The Journal of the American Academy of Psychiatry and the Law 502-9, PMID: 14974806. Further, it does not preclude the sex offenders from abusing other types of drugs to counter the effects of the drugs used in chemical castration. These are important and pertinent issues to be managed and resolved. Currently, such ostensible difficulties will rain disappointment on proponents of chemical castration.

The short answer to whether chemical castration is effective in reducing sexual offences is that it cannot be determined. Some studies found them to be effective in a limited sense.²³Julia Sauter, Daniel Turner, Peer Briken and Martin Rettenberger, “Testosterone-Lowering Medication and Its Association with Recidivism Risk in Individuals Convicted of Sexual Offences” (2021) 33(4) Sex Abuse 475-500, PMCID: PMC 8072038 Other studies do not.²⁴Matthew R. Kutcher, “The Chemical Castration of Recidivist Sex Offenders in Canada: A matter of Faith” (2010) 33:2 Dalhousie Law Journal 193-216 <https://digitalcommons.schulichlaw.dal.ca/dlj/vol33/iss2/7/> (accessed on 21 February 2023) Even for surgical castration studies, there could be gaps that would need to be plugged. As such, the efficacy cannot be conclusively determined.²⁵Gulzaar Barn, “Can Medical Interventions Serve as ‘Criminal Rehabilitation’?” (2019) 12(1) Neuroethics 85-96, PMCID: PMC 6411675 Accordingly, if the efficacy cannot be definitively assessed, it follows that logically, it is not effective.

Though chemical castration reduces the testosterone levels, it cannot be irrefutably concluded that it will reduce recidivism. This is simply because potential and repeat sex offenders can still use the other parts of their body to sexually penetrate their victims. Logically, reducing testosterone levels is not akin to removing sexual aggression and obliterating deviant behaviour. Inevitably, potential sex offenders may not be deterred since the process is reversible and repeat sex offenders are not inhibited since they can still sexually penetrate.

In summation, the efficacy of the drugs used in chemical castration cannot be denied. It would indeed reduce the androgens. However, it is apposite to state that the efficacy of such treatment to deter potential offenders and reduce recidivism is a distinct and separate issue. To conflate and equate the efficacy of the testosterone lowering medication as a treatment and the efficacy of the same drugs in the deterrence of sexual offences would be a fatal misconception. Innocent lives are dependent on the correct legal prognosis.

Practical Concerns

It should be noted that, unlike surgical castration, chemical castration will require constant medication to ensure that the testosterone levels remain low. Putting aside the potential side effects of such medication on the sexual offenders,²⁶For example, osteoporosis, heart diseases, depression, anemia. it is a real concern that public resources could potentially be continuously used to fund a modality of punishment that is more akin to a treatment plan that provides no guarantees.²⁷Matthew R. Kutcher, “The Chemical Castration of Recidivist Sex Offenders in Canada: A matter of Faith” (2010) 33:2 Dalhousie Law Journal 193-216 <https://digitalcommons.schulichlaw.dal.ca/dlj/vol33/iss2/7/> (accessed on 21 February 2023)

In addition, its efficacy is heavily premised on strict compliance by the offenders. Though rehabilitation is an idyllic and noble aspiration of penal laws, it should not be the basis to adopt a soft meandering option like chemical castration for serious crimes such as sexual offences. Any deterrent effect is arguably minimal when potential and repeat sexual offenders know for a fact that chemical castration is reversible. There is simply no sting of salvation.

Conclusion

The cacophony of voices screaming for chemical castration is muted by the deafening silence of medical and legal literature. Though chemical castration sounds terrifying, it is merely akin to a tangled treatment plan which possibly cannot prevent the growth of sexual offences in society. There is no definite correlation between lowering of testosterone levels to reducing sexual offences or the recidivism amongst convicted sex offenders. Predictably, there is arguably no or little deterrent value and potential and repeat offenders would not fear its reversible effects.

Even if proponents of chemical castration remain awestruck and could latch onto some semblance of hope that it purportedly helps to deter sex offenders, it must be emphasized that any effectiveness is very much dependent on compliance by and monitoring of the sex offenders. These are crippling and difficult variables to surmount.

Lastly, an interesting study involving the meta-analysis of research published on sex offender treatments since 1970s was done to determine if sex offender treatments were effective to reduce recidivism. Though the limitation of the study was that it focused on adult male sex offenders,²⁸Jennifer L Harrison, Siobhan K. O’Toole, Sue Ammen, Sean Ahlmeyer, Shhera N. Harrell and Jacinda L. Hernandez, “Sexual Offender Treatment Effectiveness Within Cognitive-Behavioral Programs: A Meta-Analytic Investigation of General, Sexual, and Violent Recidivism” (2020) 27(1) Psychiatry, Psychology and Law 1-25, PMCID: PMC7144226 it rightly identified gaps and limitations of the previous research on treatment for sex offenders. More importantly, after surveying the previous body of research, it suggested that cognitive behavioural therapy treatment programmes²⁹Mayo Clinic, “Cognitive behavioral therapy” (16 March 2019) <https://www.mayoclinic.org/tests-procedures/cognitive-behavioral-therapy/about/pac-20384610> (accessed on 20 January 2023). are effective in reducing sexual recidivism rates. Cognitive behavioural therapy treatment programmes or at least shades of it should already be part of our psychotherapeutic treatment for offenders here. Consequently, it can be surmised that a longer incarceration period as proposed by MHA and an appropriate treatment plan appear to be the most viable solution to deter and to decisively incapacitate, with the requisite dignity, the fallen members of society. Chemical castration is not the magic pill.