Is consent always needed for chemical castration?

Suppose a serious sex offender has reached the end of his prison term, but psychiatrists believe that he’ll need to take libido-lowering medications in order to be safely released. Would it be ethically acceptable to require that the offender receive these medications?

The UK Justice Secretary Shabana Mahmood thinks it might. The Sun recently reported that she is considering the mandatory use of so-called ‘chemical castration’. This would involve requiring some male sex offenders to receive regular injections of medications that temporarily reduce their testosterone activity to pre-pubescent levels.

In response, some commentators have raised serious concerns, maintaining that attempts to impose chemical castration without the patient’s free consent would be unethical and perhaps unlawful. But mandatory chemical castration isn’t as much of an ethical non-starter as you might think.

Consent

Concerns about consent are understandable. Generally, a healthcare professional may perform a medical intervention on a patient only with the patient’s free consent. One explanation for this consent requirement appeals to the so-called right to bodily integrity or right against bodily interference. We all have a right that others not interfere with our bodies. We can waive this right through consenting to an intervention. If you freely consent to an appendicectomy, the surgeon can interfere with your body in that particular way without infringing your right to bodily integrity. But if the surgeon removes your appendix without your consent, she’ll infringe the right.

On the face of it, mandatory chemical castration would infringe an individual’s right to bodily integrity, since it involves injecting a medication into their body without their free consent. This seems morally objectionable. But we shouldn’t take mandatory chemical castration off the table altogether. There are three reasons to think it might be ethically acceptable in some cases.

Bodily Integrity

First, the right to bodily integrity isn’t absolute. It’s sometimes ethically acceptable, though regrettable, to infringe it. At least, that’s what the laws and practices in many countries seem to presuppose. In England and Wales, for example, psychiatrists may mandate treatments for mental illnesses when the patient poses a danger to themselves or others, even when the patient has the capacity to give consent. Similarly, English law mandated nasal swabs for Covid in some cases, and several jurisdictions also mandated or considered mandating Covid vaccines during the pandemic. These interventions infringe an individual’s right to bodily integrity but are sometimes thought ethically acceptable when they’re necessary to avert serious harm to others.

Rights Forfeiture

Second, in addition to waiving our right to bodily integrity through consenting to an intervention, it may also be possible to partially forfeit this right through committing a serious wrong. It’s often thought that, when offenders commit serious crimes, they at least partially forfeit their right to free movement and association. That’s why it can be acceptable to incarcerate them, though it clearly isn’t acceptable to incarcerate those who haven’t offended, even if they pose similar risks to others. In committing serious crimes, offenders have made themselves liable to certain interventions that would otherwise unacceptably restrict their freedom of movement and association. Perhaps they’ve also made themselves liable to certain interventions that would otherwise unacceptably interfere with their bodies, possibly including chemical castration.

Of course, even serious wrongdoers retain some rights in full. There are some forms of treatment—such as torture—to which they do not become liable. So it’s possible that serious wrongdoers make themselves liable to imprisonment, but not to chemical castration.

But though this is possible, I find it hard to see why it should be so. One explanation would appeal to the way in which chemical castration can impact on a person’s innermost traits. It might be said that chemical castration amounts to an attack on the self, given that it affects aspects of the person—such as their sexual desires—that are central to their personality, identity and agency. And, it might be added, even the most serious wrongdoers should continue to enjoy protection against such attacks.

A similar point can, however, be made in relation to imprisonment. By severely disrupting a person’s relationships with their nearest and dearest—relationships that are also often central to their personality, identity and agency—incarceration arguably also amounts to an attack on the self. Though there’s a lot more that could be said here, I’m inclined to think that serious offenders either render themselves liable to both imprisonment and chemical castration, or render themselves liable to neither.   

Liberty

Third, some ways of mandating chemical castration might actually increase offenders’ liberty compared to best alternative course of action. There are two quite different ways in which chemical castration can be mandated. One approach is to include chemical castration as an unavoidable element in the initial criminal sentence. So a sex offender might be sentenced to five years in prison followed by three years of chemical castration. The other approach is to impose chemical castration—or a treatment programme that may include chemical castration—as a condition of parole or early release. So an offender might be offered release before the end of their full prison term, but only if they agree to a treatment programme that might include chemical castration. This is the approach taken in Belgium, for example. On this second approach, the offender is effectively offered a choice between chemical castration and further imprisonment. This is, of course, a highly restrictive choice. But if the offender is deemed too dangerous to be released without chemical castration, the best alternative to offering this choice may be simply to refuse parole and keep the individual in prison. In this sort of case, it seems better, at least as far as liberty is concerned, for the offender to be given some choice than none.

So the right to bodily integrity doesn’t necessarily rule out all mandatory uses of chemical castration. However, there are also other ethical considerations to bear in mind. For example, there’s the question of whether the involvement of medical practitioners in providing chemical castration might undermine trust in the medical profession. And there are legitimate concerns about humanity’s horrific track record when it comes to apparent medical ‘solutions’ to criminality, such as the frontal lobotomy and physical castration; 20th century experience with those procedures makes clear that criminal justice authorities can easily be tempted into using interventions that are both ineffective and inhumane. Any move towards mandating chemical castration would need to be coupled with robust safeguards to prevent overuse of this and other similar interventions.

Tom Douglas is Professor of Applied Philosophy and Director of Research at the Uehiro Oxford Institute, University of Oxford. He trained in medicine and philosophy and his research has focused especially on the ethics of using medical and neuroscientific technologies for non-therapeutic purposes, such as cognitive enhancement, crime prevention, and infectious disease control. He is currently leading the project 'Protecting Minds: The Right to Mental Integrity and the Ethics of Arational Influence', funded by the European Research Council.

The author thanks Lisa Forsberg for her comments on a draft of this post. Some of the points made in the post have been made previously in work co-authored with Lisa Forsberg and Jonathan Pugh.

Disclaimer: Any views or opinions expressed on The Public Ethics Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.