[This Article is authored by Tanya Sara George, a 4th year student at Maharashtra National Law University, Mumbai]

Introduction

Recently, a PIL was filed in the Supreme Court, requesting that chemical castration be legalised as a mode of punishment for sexual offences. Chemical castration is the treatment of sexual offenders with drugs to reduce their libidinous urges. This functions by reducing the level of testosterone in one’s body.

Despite harsh punishments, 2016 to 2022 have witnessed 96% increase in cases of child rape. Domestic numbers evidence that there are roughly 38 cases of CSA occurring daily. The problem that arises when punishing CSA offenders is the reoffending rates for this offence due to its major psychological and biological foundation. Take, for example, the Sunil Rastogi case. The accused admitted to sexually abusing over 500 children over a period of 12 years. This occurred after a similar conviction on charges of sexual offence. While incarceration may provide temporary relief, it grossly fails to address the root causes. This scenario necessitates a rethinking of policy.

This article provides a brief explanation on the legality behind chemical castration. The article first assesses India’s present stance on chemical castration and then draws a line of argumentation using criminal theories and restorative justice in examining whether chemical castration would be a better mode of treatment.

Indian View

India has predominantly followed a deterrent approach to punishment by adopting arbitrary incarceration. However, the numbers indicate that this approach is grossly inadequate in addressing the offence. Further, NCRB data (see Table 11.3) indicates that Indian prisons majorly lack psychological or rehabilitative facilities, often resulting in aggravating the root cause of the issue. This runs vacuous to the basis of the punishment as it inadvertently increases crime rather than reducing it. Further, qua the Justice Verma committee report, rape is viewed as a power struggle between a man and woman, caused by an urge to gain power over the woman. This is grossly different when juxtaposed with child sexual assault.

This also seems to flow from a flawed causal inference of the sexual offence, which may be attributable to an outdated understanding of sexual violence as a whole. In the current scenario, policymakers view the causal inference of the offence as X has been harmed, and Y has caused it. What is the relationship between X and Y? This mechanism is flawed as policymakers then reduce the pool of explanatory factors they can use to understand and deter the root of the offence. Instead, an ideal causal inference should have been that X has been harmed. Why has Y caused this? For example, the US Centre for Sex Offender Management correlates providing treatment to preventing the underlying factors that are linked to the sexual offence, instead of punishing the occurrence of the offence.

Whereas, a growing system of literature indicates that there is a neuropsychological basis that exists around the temporal lobe, explaining conditions such as paedophilia, rather than the general and outdated Indian understanding of rape being caused solely by sociological factors. Considering the underpinnings of the latter, policymakers have erred in attributing the cause to social factors, as it is primarily driven by a biological and psychological impetus.

The Legality of Chemical Castration

The utilitarian approach inclines towards the admissibility of punishment if it ultimately ensues a greater social pleasure. This stems from the utilitarian perception of punishments being based on crime reduction, rather than crime retribution or crime deterrence, wherein reduction accomplishes the maximisation of public utility.  Applying this principle to chemical castration, its permissibility hinges on whether the overall benefits to society outweigh the infringement upon an offender’s rights. Further, it is widely recognised that some paternalism is appropriate so as to ensure the protection of the young. As noted by Joseph Raz, a state is justified in infringing upon certain rights if it protects others. In this case, the state has an onus to keep children, a vulnerable class, free from assault and protect their basic security. By lowering recidivism rates and ensuring that CSA offenders are less likely to re-offend, chemical castration aligns with these objectives of minimizing harm to society.

It is also pertinent to note that chemical castration is a fully reversible procedure, undertaken with the consent of the individual. The fact that it is coupled with psychological therapeutic methods such as Cognitive Behavioural Therapy makes it highly plausible for individuals to gradually reverse their medicinal intake subsequent to a risk assessment, indicating a decrease in deviant sexual thinking. This then allows them to be ordinary, capable members of society.

Therefore, the fully consensual and reversible nature of the medicinal treatment, with psychotherapy, seems to align with the rehabilitative and humanitarian approach idealised by the state. The treatment merely lowers sexual libido, not infringing on any other areas of the offender’s life and thereby ensures that there is no unnecessary intervention. Further, going down a more infringing pathway, such as constant incarceration that increases the likelihood of violent behaviour and recidivism, with no access to therapeutic reform and no scope for rehabilitation, would significantly detract from the rehabilitative goal of the state. While arguably there may be some infringement of the offender’s human rights, it is not excessively intrusive.

Human Rights & Castration

Now, while it may be argued that such a mechanism would violate one’s personal liberty and autonomy, it must be noted that Indian jurisprudence in decisions such as Gobind v. State of Madhya Pradesh has emphatically held that the Right to Privacy would succumb to legitimate and compelling public interests. Decisions such as Kansas v. Hendricks or the European Court of Human Rights in Herczegfalvy v. Austria hold that medical treatment may be given with or without consent if there is an overarching state interest. This is also buttressed by various theories of criminalisation favouring collective public good over a proportionate violation of one’s rights, mentioned earlier.

Research shows that longer prison sentences are unlikely to deter future crime. Further, the goal of offender rehabilitation is to ensure reduced reoffending. Studies indicate that chemical castration has reduced recidivism rates by almost 30% compared to their non-drug-taking counterparts. While the study found that hormone therapy reduced the rate of recidivism, the psychotherapy undertaken was also found to substantially mitigate the risk of recidivism, making this a proactive approach rather than reactive. This offers a middle ground between harsh punitive measures and complete rehabilitation. In contrast to capital punishment or lifelong imprisonment, which can be excessive or inhumane, chemical castration allows offenders to reintegrate into society while ensuring they do not pose a continued threat. This aligns with the principles of restorative justice, emphasising correction over sheer retribution.

Thus, when viewed through the lens of public interest and rehabilitative jurisprudence, a statutory framework for consensual chemical castration accompanied by safeguards such as judicial oversight, medical evaluation, and informed consent can be seen not as a violation of rights, but as a constitutionally valid, socially responsive mechanism for addressing child sexual abuse.

Conclusion

Understanding paedophilia for what it is would allow crimes to be deterred in a rehabilitative manner while ensuring that individuals who possess the capacity to be ordinary members of society would be able to be a part of society. Dually, this approach would function as a method to keep a check on such individuals, as it is a continuous voluntary process undertaken in consonance with therapy. This would allow supervisors to actively observe whether an individual is exhibiting a tendency to re-offend and pre-emptively aid them, thereby ensuring that the risk of recidivism remains low.

While this may ostensibly be a more cost-intensive solution as it would require treatment and therapy centres, the reduction in costs would, in the long run, be recouped by a reduction in re-offending child sexual offenders and a more effective use of prison resources, coupled with an increase in capable members contributing to society. Thus, while it may not be the state’s burden to treat every psychological disorder, in the instant case, the state must look into methods such as chemical castration as it directly correlates to a reduction in crime rates, which benefits both citizens and state resources in the long run.