The paper aims to highlight the benefits to the criminal justice system by the adoption of Chemical Castration as an additional or alternative punishment for Rape and serious sexual violence through discussion on the progress made in the achievement of the jurisdictions already adopted and elucidating the numerous advantages to the administrative system and even to the offenders. The author further emphasises on the validity of the punishment being justifiable on the humanitarian grounds and not being mutilative in nature.
Introduction – Chemical Castration
A long search for stricter and deterrent punitive action has been sought to counter the rising reports of sexual violence. It has not only become the prime concern for the lawmakers and Law and Order stakeholders but is also followed by the large public uproar. Criminal Amendment Act, 2013 largely based on the Justice Verma Committee Report is one such instance of uproar.
The Criminal Amendment expanded the spheres of Rape under Section 375 of the Indian Penal Code which was limited to Penile-Vaginal intercourse prior to the amendment. Among the other recommendations given by the Committee, it rejected the thought of devising Castration as a form of punishment to the convicts of sexual violence. There is as such no legal definition of Castration available, it is more of a medical term which has gained prominence in a legal study in the last few years. Castration is an anthropogenic process of removal or suppression of sexual glands from human body.[i]
The process of castration can be through either surgical as practiced in the ancient times for punitive provisions, or through Chemical means by administering the use of medicine through injection. Surgical Castration being violent and brutal in nature has been disregarded by most of the jurisdictions in the world, while Chemical Castration is considered as an ideal punishment for sexual violence. In this paper, the author discusses the relevance of Chemical Castration as an appropriate punishment for the sexual violence, it is to be inferred that the author doesn’t promote the surgical method of the Castration as the punishment.
The offences of Rape and sexual violence is prevalent worldwide irrespectively and attracts global attention and focus and advocates for the strictest of punishments which can prove to be deterrent in nature. A number of jurisdictions award Capital Punishment for the offence of rape including China, Iran, UAE, Saudi Arabia, Afghanistan, People’s Republic of Korea, Pakistan and Egypt. Within the conservative paradigm of moral relativism, violent sexual activity such as rape is a result of dominance and control suited to it. Moreover, in India, where the gender bias is to a very stark extent the toxic masculinity forms the one pillar for sexual violence and rape. Rape and other forms of sexual violence do not only indicate the sexual angle of it, but also the dominance, abuse and intimidation. It was stated by one of the Researchers that “dominative masculinity constitutes protective masculinity and so legitimises the control of women by men in the name of protection.”
The extent of Indian Jurisprudence
The Indian laws do not entail any Castration as punishment for any offence over any statute. As stated earlier, the JS Verma Committee constituted after the ignominious Nirbhaya Gang Rape Case also rejected the idea of Castration as a punishment for Rape. In 2018, the Supreme Court Women Lawyers Association (SCWLA) made a representation in the Prime Minister’s Office (PMO) to induct Chemical Castration as an additional punishment for sexual violence of children. The SCWLA was of the opinion that provision of an additional punishment of Chemical Castration for the Rapists of the children aged below 12 years of age will be a deterrent factor.
The provision for implementing Chemical Castration as an additional/alternative punishment became the topic of debate when Additional Sessions Judge of Delhi District Court Dr Kamini Lau propounded in the judgement of State v. Dinesh Yadav the need for Chemical Castration as a form of punishment for the deterrence of such horrific offences. The accused was convicted for raping his minor step-daughter aged 15 years over the period of 4 years. The Judge went on to state that the strictest of existing punishments in the law has failed to provide a deterrent effect on rapes and with the existing set of punishments the administration is struggling to tackle this menace. She suggested an alternative form of punishment in the for-Child Rapists in the form of Chemical Castration.
“Chemical Castration does not actually castrate the person, nor is it a form of sterilization and for this reason, the term “Chemical Castration” has been called a misnomer. Castration has, from time to time, been used as an instrument of public and/or judicial policy despite concerns over human rights and possible side effects.”Following that in that in 2015, Justice N. Kirubkaran in the Madras High Court in a judgement also called for the introduction of Chemical Castration as the form of punishment for Rape of minors and it will fetch the magical results in dipping down of the Rapes and sexual violence against minors. These instances have already formed a strong basis for the introduction of Chemical Castration as a punishment for the Rapists. The Judiciary at different levels in their judgements has recommended the lawmakers and the stakeholders to ponder upon the same.
International Position
Nine states in the US have adopted Chemical Castration as the punishment for Rape and sexual violence against minors. In 1996, California was the first state to enable the provision for Chemical Castration as a punishment for Child Molester with an amendment in Section 645 of the Californian Penal Code.[ii]It involved injection with a drug which reduced sexual tendencies to a large extent, the law stated that it was voluntary on the first instance of offence and was to be given while on parole, and it was mandatory on the second occurrence of the sexual violence against the children.
Following such enactment, 9 other States in the United States passed similar laws, Louisiana allowed the Courts to sentence the convicts of Rape to Chemical Castration, while in Iowa, California and Florida, the same can be done for serious sex offences.Along with the US, a wide number of European Union nations such Poland, Germany, Estonia, Sweden, Finland, Denmark, Norway, Lithuania, Hungary also allowed Chemical Castration in their laws in distinct ways.
While, other countries such as Argentina, Indonesia, Australia, Israel and New Zealand also exhibit Chemical Castration in their laws. The Czech Republic has been criticised by the Human Right Organizations for administering Surgical Castration along with Chemical Castration in their laws and practice but it is still continued. Poland has made Chemical Castration compulsory for Sex offenders in 2010. Indonesia mandated the compulsory Chemical Castration for convicts of Child Sexual Violence in 2016. It suggests that wide jurisdictions in the world have adopted Chemical Castration as a punishment for Rape and Sexual violence cutting across the diversities in terms of region, advancement, demographics etc.
Why Chemical Castration?
The primary argument regarding the induction of Chemical Castration is the overall effectiveness of the punishment. Chemical castration is referred to as Castration because it mimics the effect of surgical castration by eliminating almost all testosterone from the offender’s system. The Czech Republic has seen a vast fall in the cases of Sexual Violence, their Minister exclaimed that the Czech model of treatment is very successful in comparison with foreign treatment programmes.
They have a twenty-year period, a 17 % relapse rate. The results have been impressive with Castration when castration is connected with psychotherapy, they noted a zero-percent recidivism rate. Dr Martin Holly, a leading sexologist and psychiatrist who is director of the Psychiatric Hospital Bohnice in Prague, said none of the nearly 100 sex offenders who had been castrated had committed further offences. Castration subdues psychological factors of predation, Poland official stated that it can be witnessed after enactment of chemical castration in 2010 that after Chemical Castration the convicts felt reduced libido and therefore, the lowered risk of another sexual offence committed by the same person.
Since Chemical Castration has been effective in lowering the recidivism graph among the convicts of sexual offenders, therefore promoting the protection of the society at large. In addition to other advantages, Castration aids in protecting the convicts from long term or life-long incarceration in prisons and it is beneficial for the state as well. In a country like India, where the prisons have been filled with much more inmates than its brink, such an introduction will provide relief to the state administration responsible for the management of prisons and prisoners.
Conclusion
Rape and sexual violence have been on the rapid rise ever since. The public outcry has become common against the increasing rise in the cases. The Criminal Amendment Act, 2013 which expanded the definition of Rape but did not introduce any new form of punishment seems to have not proved an effective measure in putting robust bar to the sexual offences.
The National Crime Record Bureau recorded 33356 cases of Rape in 2018. This is a highly serious concern as the report states that there is a Rape Case reported in India every 15 minutes and it has become a pandemic for the nation. The introduction of Chemical Castration is one measure which focuses on impacting the toxic masculinity, dominance, abuse and overpowering. Various jurisdictions across the globe have adopted it and have found it instrumental in lowering the rates of sexual violence.
It’s high time that the Indian Legislature takes cognizance of the matter, perceiving it as a matter of great concern. Chemical Castration strikes the balance in the criminal justice system as it not only administers safety and advantage to the society but also protects the convict from long term incarceration. Lastly, Chemical Castration doesn’t involve and mutilation, unlike the Surgical Castration, hence it is a valid form of punishment.
Endnotes
[i] Oxford Medical Dictionary, Medical and Clinical Health, 2020
[ii] Section 645, California Penal Code
About the Author: Harshit is pursuing BBA.LLB (2017-2022) from School of Law, Bennett University, Greater Noida
Criminal Law Research & Review 