The view that it will deter rape is misplaced and based on a narrow, sexual intercourse-definition of the crime
There is a fascinating urban legend that Apple’s logo is dedicated to
Alan Turing, who committed suicide by biting into a cyanide injected
apple. A few years after he was instrumental in breaking the German
Enigma code in World War II, Alan Turing was convicted in 1952 for
homosexual acts in England. He agreed to the administration of female
hormones when faced with incarceration. Apart from the abhorrent aim of
such a measure, the scientific claim that hormone injections could alter
sexuality proved to be dubious. The intuitive appeal chemical
castration has as a method of drastically reducing the incidence of
rape, I argue, is largely misplaced because it misunderstands the nature
of rape as a crime. Rape is not about sex. Rape is about power,
violence, intimidation and humiliation. Attempts to reduce the incidence
of rape by controlling the sexual urge of men are bound to be
ineffective because they invoke a very shallow and inadequate
understanding of rape.
‘More effective’ punishment
Much before the current demand for chemical castration as a legal
response to rape, Additional Sessions Judge Kamini Lau, while sentencing
Dinesh Yadav in May 2011 for raping his 15-year old step-daughter for
four years, called for a debate on castration as an alternative to
incarceration in rape cases. Sentencing Dinesh Yadav to the minimum
possible punishment of 10 years for such a crime under Section 375(2) of
the Indian Penal Code, Judge Lau indicated that castration, surgical or
chemical, would perhaps be a far more effective method to prevent rape.
While contemplating the legal and ethical aspects of such a measure, it
is important that we understand the precise terms of the suggestion,
its potential to reduce the incidence of rape and its potential for
abuse.
Clarity on the meaning of some of the terms might be useful at this
juncture. Surgical castration does not mean removal of the penis, but is
instead the irreversible surgical removal of the testosterone producing
testes. Chemical castration involves injecting anti-androgen drugs that
suppress the production of testosterone as long as the drugs are
administered.
Modern legal systems have flirted with biological control of sexual
functions for a long time for a variety of reasons. Forced sterilisation
of criminals and intellectually disabled people through legislation to
protect the purity of the gene pool was seen as an acceptable response
to the eugenics movement in Europe and the United States in the early
1900s. The United States Supreme Court in Buck v. Bell (1927),
upheld the constitutionality of the 1924 Virginia statute that
authorised the forced sterilisation of intellectually disabled people
(‘mentally retarded’ was the term in the statute). Vehemently endorsing
the eugenic aims of the statute, Justice Oliver Wendell Holmes Jr.
permitted the forcible sterilisation of an 18-year old woman, with an
alleged mental age of nine years and a family history of intellectual
disability, with the infamous words that ‘three generations of imbeciles
were enough’. Though Buck v. Bell has never been explicitly over-ruled, the U.S. Supreme Court’s decision in Skinner v. Oklahoma
(1942) and the events in Nazi Germany considerably dented the
popularity of forced sterilisations as part of the eugenics agenda.
Forced sterilisations in the best interest of the intellectually
disabled continued in the United States till the early 1980s and it was
in the mid-1990s that the debates around chemical castration as a
response to rape surfaced as a result of legislation in certain American
States.
Once we get past the historical baggage of the term ‘castration,’ the
strongest argument in favour of chemical castration is that it is a
non-invasive, reversible method of nullifying the production of
testosterone and thereby controlling extreme sexual urge. The use of
Depo-Provera in many American States subsequent to chemical castration
legislation does indicate that it reduces the risk of recidivism.
However, such an approach limits the understanding of rape to the
framework of sex. Irrespective of the differences in their positions on
rape, influential feminists like Susan Brownmiller, Catharine MacKinnon,
Andrea Dworkin, Ann Cahill, etc., agree that rape is not about the
manifestation of extreme sexual urge. Violence, power, aggression and
humiliation are central to understanding rape, and sex is only a
mechanism used to achieve those aims.
Addressing the sexual element of rape does not address the violence and
humiliation that rape is intended to inflict. Responding to a question
on whether chemical castration for child molesters works, Catharine
MacKinnon in an interview with Diane Rosenfeld (March 2000) captured the
issue at hand by saying that “they just use bottles”. Castration as a
response to rape furthers the myth that rape is about the uncontrollable
sexual urge of men.
The limited role that sex has to play in understanding rape is further
borne out by the fact that not all sex offenders are the same. In
essence, an understanding that requires us to look at rapists merely as
individuals engaging in deviant sexual behaviour is inaccurate. Rapists
fall into different categories including those who deny the commission
of the crime or the criminal nature of the act; blame the crime on
factors like stress, alcohol, drugs or other non-sexual factors; rape
for reasons related to anger, shaming, violence, etc; rape for reasons
connected to sexual arousal and specific sexual fantasies, etc.
Administering anti-androgens to rapists outside the last category will
not be an effective response to check the incidence of rape. Mapping the
long standing demand in India to reform the definition of rape (beyond
penile-vaginal penetration) to include object/finger-vaginal/anal
penetration on to the different categories of sexual offenders shows
that a sexual intercourse-based understanding of rape is extremely
narrow.
Gender violence
Even the most ardent supporters of chemical castration recognise that
administration of anti-androgens without relevant therapies defeats the
point of the entire exercise. Given the significant side-effects of
chemical castration, a law that would require indefinite administration
of anti-androgens for sex offenders is likely to be unconstitutional.
Even if the argument is that governments must invest in chemical
castration even if it means a minuscule effect on the incidence of rape,
it would require State governments to put in place a rigorous system of
providing therapy for it to be a constitutional option. Given the
condition of state health care services in India, there are very good
reasons to be sceptical about the feasibility of providing such therapy.
It is difficult not to succumb to the intuitive appeal of chemical
castration as a response to rape. But it is an intuitive appeal that
fades away on intense scrutiny. Intuition can be a great asset in
politics of all sorts, but it is best avoided while contemplating a law
requiring huge public investment, whose potential for abuse is immense
and the benefits of which are, at best, uncertain.
Any meaningful attempt to protect women against rape must engage with
gendered notions of power entrenched in our families, our marriages, our
workplaces, our educational institutions, our religions, our laws, our
political parties and, perhaps, worst of all, in our minds. There are
many violent manifestations of these entrenched patterns of power in our
society and while rape is certainly one of them, it would be a great
disservice to empowerment of women in this country to not attach the
same kind of urgency and significance to gender violence beyond rape.
(Anup Surendranath is an Assistant Professor of Law, National Law
University, Delhi, and doctoral candidate at the Faculty of Law,
University of Oxford.)
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