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By: Sharon B Morris

A Lifetime of Punishment Won’t Deter Molesters; Treatment Can

Franz Kafka’s novel “In the Penal Colony” describes a punishment machine that inflicts dire and torturous pain on prisoners strapped to a wooden bed. Above the prisoner, a parallel bed with large needles attached repeatedly pumps down on the prisoner’s body, puncturing and tattooing. This device’s only purpose is to physically punish and shame the prisoners for their crimes, not to rehabilitate them. It can be analogized to California’s new chemical-castration law and the proposed single-handcuff law for second-offense child molesters.

An updated version of Kafka’s novel is being written by the Women’s Coalition. This group, which advocates tougher laws against sex offenders, played a large role in convincing the Legislature to pass the chemical-castration law, AB3339, effective Jan. 1. Now, persons twice convicted of child molestation will be inflicted with injections of Depo-Provera, a hormone that impedes sex drive and fertility. The injections are first administered one week prior to an individual’s release from prison. There is no apparent purpose to the new law except to continue to punish persons who have already served their sentences for their crimes.

The problems with chemical castration include the frightening prospect that it may be administered to individuals wrongly accused, as well as doubts about the drug’s effectiveness. Dr. Fred F. Berlin, the Baltimore director of the National Institute of Sexual Trauma, disputes the idea that Depo-Provera injections will simply work “pro forma” and indicates that “it’s like a diet medication…you have to want to stop eating too.” See Mike Lewis, “The New Castration,” California Lawyer, January 1997, at p. 21.

But even Dr. Berlin goes too far. Diet medications suppress the appetite. If the medication is accompanied by a desire to lose weight, there is a great likelihood that weight loss will occur. There is no analogy with child molesters and Depo-Provera, which has an inhibiting effect on both libido and fertility.

Child molesters do not have problems with their libido, they have problems with behavior control, mental fragility and substance abuse. They frequently come from households where sexual abuse was common. As such, using Depo-Provera on child molesters is akin to using penicillin for rapists: the drug has no relation to the issues involved and is thus ineffective.

Additionally, Depo-Provera has serious side effects besides loss of sexual desire and fertility: enlargements of breasts, hot flashes and hair loss. The drug’s “victims” are subjected to embarrassing physical changes and, more importantly, they suffer the loss of normal and healthy sexual relationships and the ability to have a family. Until a child molester resolves torturing internal issues the controlling drive to molest will continue, regardless of whether or not they are chemically castrated.

Most psychiatrists believe that chemical castration should only be voluntarily chosen by the molester and must be accompanied by psychological counseling. In other words, castration is not the answer to the problem; the mental element is the factor that must be addressed. The Women’s Coalition has announced that it is currently working on “phase two” of the chemical-castration law – the single-handcuff law. Under this scheme, twice-convicted child molesters would be forced to wear a single handcuff for life upon their release from prison. The theory is that the public would be put on notice that a molester is among them; therefore, the public is “safe” from such individuals, who will be publicly shamed by the “mark of metal.”

The proposed single-handcuff law is inherently flawed. A child may not see the molester or the handcuff before the attack. Molesters could easily hide the cuff under a coat, sleeve or glove so that the handcuff would go unnoticed by possible victims. More important, the handcuff does not treat the problem and, as such, it does not prevent future crime. The Women’s Coalition’s tunnel vision and its desire to protect society precludes it from seeing the monstrous implication of the shame sentencing it proposes.

Shame sentencing is not the solution for child molesters. Child molesters are not well. They have impulse urges that tell them they must control something smaller and more vulnerable than themselves. Their need to control drives them to act outside the law. Many of them know their conduct is illegal but still are unable to maintain perspective of societal norms. Shame sentencing will not change child molesters’ behavior. To address the problem, we should mandate that they seek treatment to address the true issues that haunt them so that society will truly be protected. By branding these individuals for life, we eliminate any incentive for them to seek help and change.

The proper punishment is neither phase one nor phase two of the Women’s Coalition’s modern horror novel. The Legislature has already determined the appropriate punishment for crimes. The Board of Prison Terms determines which prisoners are rehabilitated to the point where they can re-enter society and lead normal lives on parole. The Women’s Coalition usurps these authorities and tells us that now punishment will continue even after the appropriate sentence has been served.

The blind reliance on shame sentencing bypasses other solutions that can be used while the child molester is still incarcerated and still safely away from the public. An inmate could be required to attend mandatory and rigorous psychological counseling. The victim, often from the same family as the molester, as well as other family members, could be asked to attend these sessions in an open forum atmosphere to increase awareness about the issues, to encourage the recognition of warning signs and to trigger a venting of emotions, fears and concerns. Inmates could be subject to perfunctory polygraph examinations before their release to determine whether or not they are still prone to further molests.

Despite such workable solutions, the Women’s Coalition’s punishment takes the shape not of as monstrous torture machine, but of medical technology and visible public displays. Although there is a clear difference in form, the similarity is retained: the punishment inflicted is only intended to shame: it is not intended to treat the symptoms of crime.

Shame sentencing only guarantees that hope, help and self-awareness will never occur. It is a Band-Aid to cover up the frustration and fear that society feels when the issues at hand are extremely difficult to resolve. Shame sentencing is a crutch used by society when it wants protection but feels its hands are cuffed. But society will not be protected….in the penal colony.

By Sharon B. Morris


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The article presented here is the opinion of the author. The opinions expressed in this blog are the sole opinions of the author and do not, in any form, reflect the legal advice or opinions of Lavenstein Law LLC. Lavenstein Law LLC does not co-author, nor promote the opinions, ideas, or statements published in this forum. Any information supplied in this forum is for editorial purposes only and should not be accepted as legal counsel provided by Lavenstein Law LLC. If you seek professional legal counsel in matters of criminal law, contact Lavenstein Law LLC. Lavenstein Law LLC is a criminal defense law firm in Maryland.