What is the controversy behind Louisiana’s new surgical castration law?

Baton Rouge, Louisiana – Louisiana has become the first state in the United States to impose surgical castration as a criminal punishment.

The new law, which came into effect on Thursday, allows the court to order surgical castration — the removal of a man’s testes or a woman’s ovaries — as punishment for adults convicted of first or second-degree aggravated rape in cases involving child victims under 13.

Some states already impose chemical castration, a reversible procedure, as punishment. But only Louisiana mandates surgical castration.

The measure comes amidst a spate of “tough-on-crime” legislation passed this year by Louisiana’s conservative supermajority and signed into law by Republican Governor Jeff Landry, who took office in January.

Critics, however, warn that such laws are radically punitive and ultimately ineffective in preventing crimes.

Among those outspoken against the law is George Annas, the director of Boston University’s Center for Health Law, Ethics and Human Rights. He described the measure as “anti-medicine” and unconstitutional: “It just makes no sense.”

Legal challenges anticipated

Louisiana and several other states, including California and Florida, already have laws that impose chemical castration for certain sex crimes.

That procedure usually entails injections of Depo Provera, a birth control medication that temporarily lowers testosterone in both men and women.

Even that procedure has its detractors, though. The Food and Drug Administration (FDA) has never approved the drug for the treatment of sex offenders, and critics decry putting physicians in the position of meting out punishments for the criminal justice system.

Such laws have already been repealed in Oregon and Georgia and ruled unconstitutional in South Carolina.

But unlike chemical castration, surgical castration is permanent. Lawyers like Annas have raised questions about whether surgical castration violates the US Constitution’s prohibition against “cruel and unusual punishment”.

Annas warns the law is also unconstitutional as it denies the right to reproduce and the right to bodily integrity. Under Louisiana’s new law, an offender can refuse the procedure, but if they do, they would instead receive an additional three- to five-year prison sentence.

“If you can get out of jail by volunteering your testicles,” Annas said, “that’s coercive.”

He believes the law will not survive the inevitable court challenges from rights groups.

“It is blatantly unconstitutional,” said Annas. “There is no way any judge in this country, even in Louisiana, would find this to be a valid punishment.”

Giacomo Castrogiovanni, a lawyer who administers the reentry programme at Loyola University’s Law Clinic, described the new law as “very aggressive” and agrees it will face legal challenges.

“I expect that is going to be a really strong challenge,” said Castrogiovanni — but he is less certain than Annas that it will be successful in striking down the law. “I really don’t know what’s going to come of that. It’ll be interesting.”

Questions of efficacy

But beyond its legal merits, the surgical castration law has raised scrutiny about its efficacy in combatting sex crimes.

Annas argued that the law would simply be ineffective. “It’s very hard to find a physician who thinks this makes any medical sense,” he said.

The urge to commit sexual violence, he explained, “is not necessarily related to the amount of testosterone you have”.

Dr Katrina Sifferd, a criminal justice researcher and former legal analyst for the National Institute of Justice, likewise expressed scepticism. “Sometimes there are claims that this is going to either rehabilitate, deter or incapacitate,” she said. “And it looks like that isn’t the case.”

Sifferd explained that people who commit sex crimes against children do so for many different reasons: “trauma, aggression, a need for love — all sorts of things” that castration wouldn’t address.

And castration doesn’t necessarily dampen sexual urges or prevent erections.

“There’s no scientific evidence that this is going to ‘work’ to save anybody. And it’s certainly not going to cure the person of being a paedophile,” Annas said.

For her part, Sifferd said she understands the reluctance to protect the rights of people who have committed grave crimes against children.

But she stressed that corporal — or physical — punishment is not meant to be part of the US criminal legal system.

“The criminal justice system has to maintain its moral authority. And every punishment that’s applied has to be justified,” she said. “Otherwise, it’s a real slippery slope in what we allow the state to do.”

A punitive approach

The new law highlights longstanding concerns about the punitive nature of Louisiana’s criminal justice system.

Louisiana has been called the “prison capital of the world”. It has the highest incarceration rate of any state in a country that already tops all other democracies for the proportion of people behind bars.

Out of every 100,000 people in Louisiana, approximately 1,067 people are locked up in jails, prisons and detention centres.

Louisiana’s surgical castration law comes into effect as part of a spate of legislation that creates even more crimes to prosecute.

Among the laws taking effect on Thursday is a measure that makes it a crime to remain within 7.6 metres — or 25 feet — of a police officer after being warned to retreat.

Another law will make the possession of unprescribed abortion medication punishable by up to five years behind bars. Another eliminates parole.

The experts who spoke with Al Jazeera largely interpreted the new castration law as a Republican effort.

Castrogiovanni, the lawyer, described it as “a new implementation of conservative policies”, which tend to reflect more punitive approaches to addressing crime. He pointed out that, until recently, Louisiana had a Democratic governor who could veto some of the more controversial right-wing bills.

However, the surgical castration law passed by wide margins in both chambers of the state legislature. In the state House, it sailed through by a vote of 74 to 24, and in the Senate, it earned 29 votes, easily defeating the nine “nays”.

Democrats were among its supporters. In fact, two authored the bill.

A personal battle

One of the co-authors was state Representative Delisha Boyd, who spent the same legislative session unsuccessfully championing bills that represent more traditional Democratic priorities: protecting gay rights and reproductive access, for instance.

She even drew on her own experiences to argue that Louisiana’s abortion ban should include exceptions for rape and incest.

Her mother, Boyd testified to the Louisiana legislature, had been raped as a minor. She became pregnant with Boyd when she was only 15, and Boyd testified that the trauma of both the rape and forced pregnancy contributed to her mother’s death before age 30.

That bill, however, failed.

In an interview with Al Jazeera, Boyd reflected on the irony: Louisiana doctors may now perform a medical procedure as punishment for rape, but those same doctors could be arrested for providing medical care to a rape survivor.

“I’m disgusted by that,” said Boyd. She finds it hypocritical that abortion opponents say they want to protect children but also “want to keep [the child rape victim] with a whole other human being in her body, ignoring how it’s not even her choice to have this baby”.

“I’m here because my mother experienced that,” she added.

That personal history, Boyd explained, is part of why she has become an advocate for survivors of sexual violence.

Boyd stridently defends the surgical castration law. She considers some of its critics apologists for child sex offenders.

“I am offended by anyone who has actually read this bill and still wants to defend the rapist,” she said.

And she doubts the penalty will be imposed often. She pointed out that chemical castration, already a penalty in Louisiana, has been imposed just a handful of times in the last 20 years.

But Boyd believes that, if the surgical castration law stops even one person, it will be worth it.

Sifferd, however, called that rationale “a really dangerous argument” to make. In her opinion, extreme punishments risk causing greater societal harm.

“Imagine if we applied this to other sorts of crimes, right? We apply a $10,000 fine for speeding, in case it stops even one person from speeding, and so we’re going to apply it to everybody. It’s unjustified,” Sifferd said.

Sifferd also noted that there’s consistent evidence showing that imposing harsher penalties is not an effective crime deterrent.

Focusing on survivors

Some advocates also argue that the focus on punishment diverts attention away from the survivors themselves.

The Committee for Children, a nonprofit, wrote a policy briefing explaining that “the vast majority of government funding for child abuse” goes to “convicting and managing the perpetrator” rather than preventing the abuse in the first place.

This could include programmes to support survivors or alleviate risk factors. Studies have indicated that rates of sexual violence are linked to gender and economic inequality.

And Louisiana has the second-highest poverty rate in the US, not to mention one of the country’s highest maternal mortality rates.

A recent study from Tulane University in New Orleans found that 41 percent of respondents reported experiencing sexual violence during their lifetime.

Boyd said this points to a bigger issue: “Women and children are endangered species in this state.”