성폭력범죄자의 성충동약물 치료에 관한 법률의 정당성 및 실효성 검토 (An Analysis of Justification and Effectiveness of the Act on Medication Treatment of Sexual Impulse of Sex Offenders)

서지정보

· 발행기관 : 한국외국어대학교 법학연구소
· 수록지 정보 : 외법논집 / 35권 / 4호 / 67 ~ 87페이지
· 저자명 : 이보영, 홍기원

초록

Throughout history, surgical castration has been used to punish sex offenders. In the developed world, the practice of removing the testes was considered a viable treatment that is able to prevent recidivism in offenders who commit crimes of sexual nature. With the advent of medicine in the seventies of the last century, drugs that can produce the same, if not better, effect were discovered. This prompted most of the countries practicing castration on sex offenders to abandon the surgical treatment and continue using chemical castration to achieve the same goals instead.
In 1996, the California legislative assembly intensified the competition in what seems to be an ever increasing race to enact the most draconian penalties for child molestation. Out of a desire to punish child molesters and to take a tough stance on crime, California’s legislative assembly amended section 645 of the California Penal Code to mandate chemical castration of certain recidivist child molesters upon parole. The statute provides that commencing January 1, 1997, the State of California will chemically castrate all parolees who have more than one conviction for molesting a child under thirteen years of age. Across the nation, the subject of the violent repeat sexual offender elicits strong emotional reaction from the public, which in turn motivates legislators to increase criminal justice sanctions for sexual offense perpetrators.
Society’s increasing intolerance of individuals who commit crimes against children is evidenced by the enactment of the so-called “Megan’s Laws” and “Sexually Violent Predator Acts.” Section 645 is another step in an attempt to satiate the public’s desire for retribution. Chemical castration may indeed be an appropriate treatment measure for some offenders, but a question remains concerning whether it is appropriate for a legislative body to make this determination.
The medical community does not recognize one standardized treatment or therapy program as appropriate for all child molesters. Therefore, it is troubling that the California legislative assembly has prescribed chemical castration as the mandated course of treatment for all child molesters without providing for any medical consultation on an offender-by-offender basis.
Surgically removing the testes is an invasive and irreversible procedure that permanently changes the human body. Aside of diminishing sexual desire and potency, the procedure completely eliminates the ability for procreation. Surgical castration can also lead to adverse side-effects that are both of physical and psychological nature. Taking hormonal drugs that are easily available for purchase, however, restores the sex drive and makes it possible for sex offenders to engage in sexual intercourse even though their testes are removed. This is not the case with chemical castration as testosterone can not reverse the effects of anti-androgyne drugs.
Although research shows that surgical castration is a very effective method that significantly reduces recidivism in sex offenders, independent review studies have shown that the positive effects might not be based on genuine scientific evaluation. Today, there are conflicting opinions within the medical community whether the intervention does more to prevent sex offenders from re-offending than other available treatment.
Therefore, surgical castration can not be considered as a reliable treatment for sex offenders. This raises the question whether the treatment can be considered legally permissible. It is also questionable if the procedure can pass the constitutionality test with regard to the prohibition of cruel, inhuman, or degrading treatment or punishment, the fundamental rights to marry and found a family as well as to human dignity and integrity. When these fundamental legal questions are combined with the advent of modern medicine and the possibility to reach the desired goal by alternative unobtrusive treatment, it becomes apparent that surgical castration is not only impermissible but also unnecessary. This research will be a deep impact in the area of criminal and constitutional law field.

영어초록

Throughout history, surgical castration has been used to punish sex offenders. In the developed world, the practice of removing the testes was considered a viable treatment that is able to prevent recidivism in offenders who commit crimes of sexual nature. With the advent of medicine in the seventies of the last century, drugs that can produce the same, if not better, effect were discovered. This prompted most of the countries practicing castration on sex offenders to abandon the surgical treatment and continue using chemical castration to achieve the same goals instead.
In 1996, the California legislative assembly intensified the competition in what seems to be an ever increasing race to enact the most draconian penalties for child molestation. Out of a desire to punish child molesters and to take a tough stance on crime, California’s legislative assembly amended section 645 of the California Penal Code to mandate chemical castration of certain recidivist child molesters upon parole. The statute provides that commencing January 1, 1997, the State of California will chemically castrate all parolees who have more than one conviction for molesting a child under thirteen years of age. Across the nation, the subject of the violent repeat sexual offender elicits strong emotional reaction from the public, which in turn motivates legislators to increase criminal justice sanctions for sexual offense perpetrators.
Society’s increasing intolerance of individuals who commit crimes against children is evidenced by the enactment of the so-called “Megan’s Laws” and “Sexually Violent Predator Acts.” Section 645 is another step in an attempt to satiate the public’s desire for retribution. Chemical castration may indeed be an appropriate treatment measure for some offenders, but a question remains concerning whether it is appropriate for a legislative body to make this determination.
The medical community does not recognize one standardized treatment or therapy program as appropriate for all child molesters. Therefore, it is troubling that the California legislative assembly has prescribed chemical castration as the mandated course of treatment for all child molesters without providing for any medical consultation on an offender-by-offender basis.
Surgically removing the testes is an invasive and irreversible procedure that permanently changes the human body. Aside of diminishing sexual desire and potency, the procedure completely eliminates the ability for procreation. Surgical castration can also lead to adverse side-effects that are both of physical and psychological nature. Taking hormonal drugs that are easily available for purchase, however, restores the sex drive and makes it possible for sex offenders to engage in sexual intercourse even though their testes are removed. This is not the case with chemical castration as testosterone can not reverse the effects of anti-androgyne drugs.
Although research shows that surgical castration is a very effective method that significantly reduces recidivism in sex offenders, independent review studies have shown that the positive effects might not be based on genuine scientific evaluation. Today, there are conflicting opinions within the medical community whether the intervention does more to prevent sex offenders from re-offending than other available treatment.
Therefore, surgical castration can not be considered as a reliable treatment for sex offenders. This raises the question whether the treatment can be considered legally permissible. It is also questionable if the procedure can pass the constitutionality test with regard to the prohibition of cruel, inhuman, or degrading treatment or punishment, the fundamental rights to marry and found a family as well as to human dignity and integrity. When these fundamental legal questions are combined with the advent of modern medicine and the possibility to reach the desired goal by alternative unobtrusive treatment, it becomes apparent that surgical castration is not only impermissible but also unnecessary. This research will be a deep impact in the area of criminal and constitutional law field.

참고자료

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