A Sex-Crime Law for the Dark Ages

Gov. Pete Wilson on Tuesday signed into law a bill more appropriate for the Dark Ages than the eve of the 21st century. It mandates surgical castration or drug injections for parolees convicted of sex crimes against children after the second offense (a judge, however, could order chemical castration even with the first offense). This may satisfy the electorate’s lust for vengeance, especially in the wake of the horrendous murders of children in Belgium, but will do little to stop sexual assaults against children.

Sex offenders could voluntarily choose surgical castration under the new law. Because surgical castration is irreversible, most inmates would probably opt for the lesser of two evils, so-called chemical castration. But Depo-Provera, the hormone-suppressing drug often used to “treat” sex offenders, is a drug that even its proponents never proposed using on violent criminals. In fact, despite assertions of successful treatment in Europe and the anecdotal evidence from true believers, including some ex-cons, the truth is that no one knows what causes men to rape, and forcing Depo-Provera on inmates is akin to the experimentation of Third Reich doctors in Nazi Germany. Depo may or may not lower the “sex drive,” but rape is a crime of violence, something that neither chemical or surgical castration will address.

The enactment of such a law is only the latest in a long and shameful legacy of “great and desperate cures,” a term coined by Elliot S. Valenstein, a University of Michigan psychology professor whose 1986 book chronicled experimentation on mental patients and sexual misfits, including psychosurgery on homosexuals, not so long ago.

In England, a BBC-2 television documentary on such “aversion therapy” on homosexuals in the 1960s and 1970s that aired last month has led the Health Ministry to declare that patients are entitled to compensation from the doctors who treated them. This should remind us that what may be considered legitimate treatment one day may become a significant liability risk the next. In California, in a concession to those troubled by the ethics of such forced treatment, Corrections Department doctors are allowed to opt out of injecting a patient.

The belief that a single drug--in this case, one not cleared by the FDA for such a purpose--can alter abusive behavior is the ultimate in reductionism. Human beings are not automatons propelled solely by “uncontrollable” biological “drives,” but are species with highly developed brains. Drugging anyone without his informed consent raises serious constitutional issues; to allow society to do it to prison inmates only raises the question, what or who next?

The ACLU is likely to challenge the California law as unconstitutional. Case law is on its side. The Michigan Supreme Court already has ruled that requiring Depo-Provera as a condition of probation is “unlawful” because the drug is still experimental for this purpose (it is now primarily used for birth control). The Montana Supreme Court also has barred the use of Depo in forced therapy, a ruling the U.S. Supreme Court did not overturn. And Congress’ Office of Technological Assessment, noting that some prison administrators have advocated the use of Depo to control violence and homosexual activity in prisons, has concluded, in a 1988 report, that “such broad and general use of the drug might meet the Supreme Court’s test for cruel and unusual punishment: ‘shocking to the conscience of reasonably civilized people.’J”

Despite the hype, the California law will not do all that the public presumably wants. Not only will it not reduce sex crimes, but it does not cover all sex acts with minors. The law exempts heterosexuals who practice conventional sex on minors. It does not cover males convicted of having vaginal sex with females under 13; it covers only those convicted of sodomy, oral sex, insertion of a foreign object or lewd and lascivious conduct with such minors. Besides, inmates, even after the second offense, will avoid mandatory castration if they are not granted parole.

With this new legislation, California returns to the dark ages of sexual psychopath laws and unfettered collusion between psychiatry and the state. It is ironic that the same Legislature also passed a bill mandating informed consent by women in human egg transfers, in the wake of the UC Irvine fertility scandal. But those women have a voice; sex offenders are despised and no one will listen to them.