Lest We Regress to the Dark Ages: Holding Voluntary Surgical Castration Cruel and Unusual, Even for Child Molesters

By Rylyk, Catherine | The William and Mary Bill of Rights Journal, April 2008 | Go to article overview

Lest We Regress to the Dark Ages: Holding Voluntary Surgical Castration Cruel and Unusual, Even for Child Molesters


Rylyk, Catherine, The William and Mary Bill of Rights Journal


Innocence is trampled as debauchery and brutality reign unfettered in the world of child molesters. Reports of the sexual assault and molestation of innocent children - arguably the most vulnerable members of our community - weigh on the hearts and minds of all Americans. The magnitude of this problem is readily conveyed through statistics. One of every four girls is sexually assaulted before the age of eighteen, and one in six boys meets the same unfortunate fate.1 Though most child sex offenders will harm between one and nine victims, approximately twenty percent will target ten to forty children.2 Each year an estimated 100,000 to 500,000 children are sexually molested in the United States.3 Terrifyingly, these staggering rates continue to rise.4 Though the increase can be attributed at least in part to "an increase in actual identification and reporting of child sexual abuse," concern for the magnitude of this problem properly remains.5

The release of convicted child molesters following the conclusion of their prison terms helps fuel these unsettling assault statistics. In a single year, 4300 convicted child sex offenders were freed from prison.6 One study suggests that "recidivism in chüd molesters ranges from twenty-two to forty percent," whereas other researchers estimate that long-term relapse rates approach fifty percent.7 These horrific crimes are all too frequent and recidivism rates far too high.

As haunting images of child victims like JonBenét Ramsey's striking bright eyes8 and Jessica Lunsford's wide smile and fuzzy pink hat9 blaze across media wires, a resounding outcry is heard demanding protection for our fragile youth. As the traditional formula of incarceration leading to parole is criticized in light of the undeniably high recidivism rates for sexual deviants, several states have responded by providing voluntary castration as an alternative means of rehabilitation, and others consider adding the treatment to their books.10

Though lawmakers and convicts alike rally behind enacting statutory provisions for voluntary castration, many opponents are appropriately concerned that the punishment violates the Eighth Amendment.11 This Note seeks to determine whether the Constitution's prohibition of cruel and unusual punishment should bar sentences with the option of voluntary castration. Part I analyzes the Eighth Amendment, considering both the law's derivation and subsequent case history developing the Cruel and Unusual Punishment Clause's meaning. Applying analytical themes extracted from Supreme Court case law, Part ? evaluates whether voluntary castration - achieved chemically or surgically - is constitutional. Concluding that chemical, but not surgical, castration should be deemed permissible, the discussion in Part Hl examines whether courts should allow waiver of Eighth Amendment protections. This Note suggests that because waiver of Eighth Amendment protections against unjust punishments should never be permitted, only voluntary chemical castration may be adopted as a constitutional punishment.12 The penalty of surgical castration, even if submitted to freely, is cruel and unusual.

I. UNDERSTANDING THE EIGHTH AMENDMENT'S PROHIBITION OF CRUEL AND UNUSUAL PUNISHMENT

A short though powerful protection of individual rights, the Eighth Amendment states in full: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."13 By declining to explicitly enumerate the punishments prohibited by the Amendment, the drafters helped establish a "flexible and dynamic" standard of scrutiny.14 Consistent with the drafters' original intent, the Supreme Court has refused to compose an exhaustive list of punishments precluded by the Amendment.15 In particular, the Court has yet to directly address the constitutionality of voluntary castration. 16 Without such an unequivocal decision, the legality of the punishment can only be deciphered in the context of the Amendment' s origins and the developing case law. …

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