Orchiectomy, or surgical castration, has long been regarded as cruel and unusual punishment. The Eighth Amendment to the U.S. Constitution prohibits castration as a form of punishment because it involves mutilation of the body that deprives the offender of his manhood. Such mutilation also represents a deprivation of the offender’s privacy rights to bodily integrity, procreation, and freedom of thought. Although constitutional privacy rights are affected by surgical castration, most of the arguments against its use have been couched in terms of the Eighth Amendment’s prohibition against cruel and unusual punishment.
There are two methods by which to accomplish castration: surgical and chemical. Orchiectomy is the surgical removal of one or both testicles. By removing the male sex organ, surgical castration reduces testosterone in the body, which in turn reduces the capacity of the individual to think about and engage in sexual acts. Chemical castration accomplishes the same effect through the administration of medroxyprogesterone acetate, a female hormone that reduces the production and effect of testosterone. The effects of chemical castration are reversed when the subject stops receiving medroxyprogesterone acetate. Surgical castration, unlike chemical castration, is not reversible.
Although controversial, surgical castration is effective as a security measure because it reduces the rates of recidivism in convicted sex offenders and reduces the need for ongoing surveillance of offenders by law enforcement. During the mid-20th century, some European countries imposed mandatory surgical castration on convicted sex offenders. Statistical data reflect the recidivism rates for castrated sex offenders at around 3%, compared with as high as 46% for noncastrated offenders.
Current research, however, suggests that surgical castration may not be effective at reducing recidivism for all types of sex offenders. When compared with other types of crimes, the recidivism rate for sex-related crimes is low overall, and convicted sex offenders are generally more likely to re-offend by committing a non-sex-related crime than by committing a sex offense.
For a small group of sex offenders, however, the recidivism rate is higher. Sex offenders with paraphilia (deviant sexual interests) or antisocial orientation present a greatly increased risk of recidivism and, thus, present a greater security danger to society as a whole. The risk of recidivism for paraphiliacs is high because their desire to engage in illegal sexual activity cannot be controlled. Sex offenders with an antisocial orientation generally desire to violate the rights of others. If an opportunity presents itself in the form of a deviant sex act, the antisocial person will take advantage of the opportunity, regardless of whether the sex act itself is the primary motivator. Of course, some sex offenders are both paraphilic and antisocial. Offenders who possess both characteristics present the greatest security risks.
Even though studies support the conclusion that surgical castration can make society safer by reducing the risk of re-offense posed by convicted sex offenders, this method of castration cannot be imposed as punishment in the United States. The American Medical Association considers it an ethical violation to perform an orchiectomy pursuant to a court order. U.S. courts adopt a similar perspective and have generally forbidden orchiectomy as criminal punishment. Under U.S. jurisprudence, not only is it unlawful to impose orchiectomy as punishment, but it is also unconstitutional to incentivize orchiectomy in exchange for a reduction in sentence, early release, or any other consideration or leniency in punishment.
As of 2017, only one U.S. jurisdiction, Texas, has developed a statutory scheme that permits surgical castration. This system allows certain convicted sex offenders to opt for an orchiectomy on a purely voluntary basis. Texas law requires that the offender meet seven criteria before the procedure can be performed: the offender must (1) have two or more convictions for indecency with a child, sexual assault of a child, or aggravated sexual assault; (2) be 21 years of age or older; (3) submit a request in writing; (4) admit in writing to having committed the offenses; (5) submit to evaluation by both a psychiatrist and a psychologist with experience counseling sex offenders; (6) provide written informed consent; and (7) not have previously withdrawn a request for orchiectomy.
Because the Texas statutes provide for a completely voluntary orchiectomy free from motivations of leniency in sentencing, it seems to pass constitutional muster. In any event, it has not been challenged as unconstitutional. As of 2017, no other jurisdiction within the United States, either state or federal, permits surgical castration for convicted sex offenders.
See also Castration, Chemical
American Civil Liberties Union of Arkansas, Inc. v. State, 5 S.W.3d 418 (1999).
Hanson, R. Karl and Morton-Bourgon Kelly E.. “The Characteristics of Persistent Sexual Offenders: A Meta-Analysis of Recidivism Studies.” Journal of Consulting and Clinical Psychology, v.73 (2005).
Hanson, R. Karl and Bussière Monique T.. “Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies.” Journal Consulting and Clinical Psychology, v.66/2 (1998).
State v. Brown, 284 S.C. 407, 326 S.E.2d 410 (1985).
Stinneford, John F. “Incapacitation Through Maiming: Chemical Castration, the Eighth Amendment, and the Denial of Human Dignity.” University of St. Thomas Law Journal, v.3 (2005–2006).
Texas Code of Criminal Procedure Art. 42.12 Sec. 11(f).
Texas Government Code Annotated § 501.061.
Texas Government Code Annotated § 508.226.