What to know about Louisiana's new surgical castration law

Louisiana is now the first state to allow surgical castration to be used as a punishment for sex crimes under a new law signed by Republican Gov. Jeff Landry. This law, which will go into effect Aug. 1, allows judges to order people found guilty of certain sex crimes against minors to undergo surgical castration.

The use of surgical castration as punishment, which is a permanent procedure that involves the surgical removal of the testicles or ovaries ostensibly to stop the production of sex hormones, is rare elsewhere around the world. The Czech Republic, Madagascar and a state in Nigeria have such laws on the books that have been strongly criticized by Amnesty International and other human rights organizations.

Several U.S. states, including Louisiana, as well as other countries have laws allowing for the use of chemical castration — a procedure that uses pharmaceutical drugs to quell the offenders' sex drive — for certain sex crimes.

The passage of this bill in Louisiana has grabbed headlines and caused ripples of consternation among criminal defense lawyers, advocates and medical experts, raising serious concerns around the ethics and constitutionality of the law and questions over whether this punishment would actually make a difference in reducing sex crimes.

“It’s very confusing, in addition to being absolutely unprecedented, and draconian and overkill,” said Gwyneth O’Neill, a New Orleans-based criminal defense attorney and a member of National Association of Criminal Defense Lawyers.

One of the drafters of the bill, Democratic state Rep. Delisha Boyd, told NPR the law will be a strong deterrent for would-be child sex abusers and would protect children.

So, what does the law say?

The law, as written, targets offenders found guilty of aggravated sex crimes, including rape, incest or molestation against a child under 13. The punishment would be brought in certain cases and at a judge’s discretion and the surgery would be completed by a physician. It will also require a court-appointed medical expert to determine whether the offender is the right candidate for the surgery.

An offender could refuse to get the surgery, but would then be sentenced to three to five years of an additional prison sentence without the possibility of getting out early.

The law doesn’t allow anyone under 17 found guilty of certain aggravated sex crimes to receive the punishment.

Boyd says she was inspired to propose this bill after seeing a disturbing article from a local newspaper about a 51-year-old man who was arrested for the alleged rape of a 12 year old. The story revealed that the man was a registered sex offender. In 2007 he had been arrested for allegedly raping a 5 year old.

Boyd said that she believes the criticism she’s received from opponents of the law is from people who haven’t closely read the law and think it forces a prisoner to undergo this procedure.

“Some of the critics say, you know, that's cruel and unusual punishment. Well, I disagree. I think the cruel and usual punishment was the rape of that 5 year old," Boyd said.

The reasons why people commit sex offenses are so much more complicated than something that can be fixed with castration, said Maaike Helmus, an associate professor of School of Criminology at Simon Fraser University in Vancouver.

Helmus' research focuses on offender risk assessment and on men who have committed sexual offenses or intimate partner violence.

“In our minds, it's easy to link castration to the problem that they're exhibiting and think that'll fix it, but it's taking a lot of leaps and logic that are not warranted, and not considering other alternatives,” like the use of medication, she said.

This law is part of the state’s 'tough on crime' efforts

In February, the state legislature held a special session on crime and passed several bills that Landry and lawmakers said would bring justice to crime victims and their families, according to Baton Rouge Public Radio.

The member station reported that the series of tough-on-crime bills passed the session “will likely reshape the landscape of criminal punishment in Louisiana for years to come.”

The bills expanded death penalty methods, effectively eliminated parole for anyone convicted after Aug. 1, lowered the amount of “good time credit” with few exceptions and established harsher penalties for some crimes.

There are concerns over discriminatory application of the law

If it is challenged, O’Neill, the New Orleans-based criminal defense attorney, said it's highly likely the law would be deemed unconstitutional under the Eighth Amendment’s prohibition of cruel and unusual punishment.

“Surgical castration is generally considered, or was considered, to be sort of like the paradigmatic example of cruel and unusual punishment, because it's a form of physical mutilation. It's barbaric,” she said.

Once it's enacted later this summer, O'Neill fears the law could be applied in a discriminatory way — the same way the death penalty and other criminal justice policies tend to be, she said.

There is research that indicates the U.S. criminal justice system is applied unfairly to people of color, especially Black Americans. Research shows the number of imprisoned Black Americans has decreased 39% since its peak in 2002, according to The Sentencing Project, but remains higher for Black Americans generally. And in Louisiana, along with Arkansas, Mississippi and Oklahoma, the imprisonment rates are nearly 50% above the national average, according to the organization.

O’Neill says the law also uses vague and potentially confusing terms.

The law’s language mandates that a “court appointed medical expert” can decide if a person found guilty of a sex offense should undergo surgical castration. “We don't know who that is, who's going to qualify to be a medical expert," O’Neill said. "There's no guidance about that."

And that introduces risks for defendants, she said.

“I think anytime you have this vague terminology, you're not going to get the most qualified people to make such a determination,” O'Neill said. The law also doesn’t establish the criteria to evaluate whether an offender is an appropriate candidate for this punishment, she said.

“Practically speaking, I think it puts defense attorneys in a very difficult position,” she said.

Could this law impact repeat offenses?

Part of the motivation behind this law was to cut down on the possibility of someone reoffending. But the research on sexual offense recidivism rates is tough to parse. The research on surgical castration and its effect has only been done on people who have voluntarily undergone the procedure out of concern they will harm again, Helmus said.

That impacts the analysis because these are individuals who are already working to not reoffend, she said.

"If you combine different studies, over multiple countries and jurisdictions and different types of settings, five-year sexual recidivism rates are generally expected to be in the range of five to 10%. And lifetime rates are maybe around 15 to 20%,” Helmus said.

But that’s only for cases the public knows about.

“We know that not all sex offenses get reported to police for a variety of reasons. And so we know that sexual recidivism rates are to some degree an underestimate, because not everything comes to the attention of police. However, it's hard to know how much that's actually going to affect reoffending rates,” she said.

Ultimately there’s very limited research on the effectiveness of any type of castration with people who've committed sex offenses, Helmus said.

“The whole point of castration is that it is supposed to reduce the sex drive. If you're pursuing castration to reduce sexual offense rates, you're making an assumption that they're committing a sex offense because of a high sex drive or high testosterone rates in the first place," but this is not always the motivation for committing these offenses, Helmus said.

Research indicates that there's no evidence that people who commit sex offenses have higher testosterone in the first place.

“If that's not the reason why they're committing sex offenses, then reducing their testosterone is going to do nothing to reduce that risk,” she said.

Surgical castration also doesn’t mean someone cannot be sexually aroused or, in the case of men, get an erection or ejaculate, Helmus said. Not to mention there is still psychological arousal and urges that are not addressed with this procedure.

“Even if castrated, they can later take medications to reduce or reverse the effects of castration and still be able to increase their sex drive,” she said. “So castration isn't a foolproof way of getting rid of their sex drive. What we know, especially for people who commit sex offenses against children, they don't need an erection to be able to commit many of the types of sex offenses that they commit.”

Boyd still believes that this law could serve as a strong deterrent.

“These predators have to be stopped,” she said. “Even if just one rapist changes his mind about raping a child, I will take that.”