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                                                                                LAW, Page 54

Sentences Inscribed on Flesh


The prospect of castration for a sex offender raises questions
about when the law can invade the body

By RICHARD LACAYO -- Reported by Andrea Sachs/New York and
Richard Woodbury/Houston


    Texas District Judge Michael McSpadden has a solution for
rapists: castrate them. Steven Allen Butler, an accused rapist,
had an offer for Judge McSpadden: Castrate me. Last winter,
while he was on probation for molesting a seven-year-old girl,
Butler was arrested for the rape of a 13-year-old. In October,
after McSpadden aired his views on castration in the Houston
Post, Butler's attorney proposed a deal. Instead of undergoing
a trial in which he faced a plea-bargained 35-year prison
sentence, Butler agreed to be surgically castrated if he could
go free at once on probation. McSpadden said fine.

    Now Butler has a new attorney, and second thoughts.
Butler's relatives declared last week that he would prefer to
stand trial after all, rather than go through with the surgical
procedure. The reversal followed an outcry from legal experts,
which drew attention to the implications of allowing prisoners
to barter body parts for their freedom.

    There are times when the government lays its hands,
sometimes not so gently, on the human body. But the judicial
system's responsibility to justify its actions grows heavier as
it presumes to act more seriously against the flesh -- or one's
"bodily integrity," as some legal thinkers and ethicists put it.
At one end of the spectrum is the police officer who gently
pushes back a crowd when a parade comes down the street. At the
other end is the executioner. In between are compulsory blood
tests for drug use or AIDS, court-imposed caesareans and the
sterilizations that were once imposed upon the retarded. While
admitted criminals have fewer protections than other citizens,
the constitutional bans on unreasonable search and seizure and
cruel and unusual punishment should protect them from unjust
violations of the body. But the courts have never reached a
consensus about which punishments are cruel or unusual. And if
the accused agrees to the penalty, who's to object?

    "There should be an overwhelming presumption against
having the long arm of government touch the human body and the
human psyche in intimate ways," says Harvard law professor
Laurence Tribe. By that measure, modest intrusions with clear
benefits can pass the test. One example: because there is strong
evidence that compulsory vaccination is an effective public
health measure, the Supreme Court has approved it even for those
with religious objections.

    Surgical procedures, more painful and profound, make
courts more wary. Two years ago, a Chicago court refused to
require twins to undergo tests to determine if their bone marrow
could help their half brother who was dying of leukemia. In 1987
a Washington federal court ordered a pregnant cancer patient to
undergo a caesarean delivery in an attempt to save the fetus,
even though she and her doctors opposed the operation. The baby
lived for just two hours. The woman died two days later. But the
lower-court ruling doesn't provide a precedent because it was
vacated by an appeals court the following year.

    Even medical treatments that are reversible are generally
looked at carefully by courts if they involve reproductive
ability. Rapists have been allowed to evade prison by agreeing
to accept continuing treatment with Depo-Provera, a drug that
inhibits the male sex drive by sharply -- but temporarily --
reducing the body's production of the hormone testosterone. But
when a judge attempted to compel a convicted rapist to accept
Depo-Provera as a condition of probation in 1984, he was
overruled on appeal. Two years ago, a California woman found to
have beaten her two young children with a belt agreed to a
probation arrangement under which she would use Norplant, the
birth-control strips inserted just beneath the skin that release
contraceptive hormones into the blood for up to five years. When
she withdrew her agreement, the court did not compel her to
accept the treatment.

    The effects of Norplant and Depo-Provera are reversible;
castration is not. In the U.S., the last court-ordered procedure
was carried out on a Texas rapist in 1864, before castration
became one of the defining obscenities of Nazi Germany and the
Ku Klux Klan. However, the idea has been finding favor again as
prisons become so crowded that even violent offenders serve just
a fraction of their sentences. In the past decade judges have
several times sentenced rapists to be castrated, but the
sentences have been disallowed on appeal. Two years ago, state
legislatures in Alabama, Indiana and Washington rejected bills
to allow sex offenders to be castrated in exchange for
reductions in their prison sentences.

    Judge McSpadden has a social-benefit explanation for the
deal he wants to make with Butler. With the criminal-justice
system floundering, he says, society needs to consider new ways
to control violent offenders. Because the testicles produce
most of a man's testosterone, McSpadden says, castration will
diminish Butler's sexual drive and aggressiveness. "Nobody's
going to call that cruel and unusual punishment," he concludes.
"They're going to call that effective punishment."

    It might also be effective to cut off the hands of
thieves, as the law provides in some Islamic nations. But in
American law the effectiveness of a punishment is balanced
against the consideration of whether it is inhumane or excessive
to the purpose. And in the matter of castration, even its
effectiveness is disputed. Though a castrated male will no
longer produce semen, he is still capable of an erection. And
even men who are incapable of an erection can commit sexual
assaults. Most experts regard sexual assault as an act of
violence, not desire, an explosion of rage by an attacker who
is often dysfunctional at the crucial moment.

    Michael Cox, director of the sexual-abuse treatment
program at Baylor College of Medicine in Houston, is worried
that castration will only aggravate the depression and
self-contempt that can make sex offenders more likely to strike.
"Violent crime is not surgically reversible," says Cox, who was
asked by the court to examine Butler and who tried to dissuade
him from opting for castration. "You're not going to undo a
criminal personality by playing around with a person's hormone
levels."

    In the end, it's not a judge but a doctor who must stand
over the accused, scalpel in hand. The American Medical
Association opposes the use of medical procedures as a part of
criminal penalties. "Physicians have no business acting as
agents of the state to punish people," says Dr. George Annas,
a professor of health law at Boston University medical school.
"This includes sterilization, any surgical procedure or
[implanting] Norplant." In the Butler case so far, one doctor
has already withdrawn his agreement to perform the castration.

    Judge McSpadden had Butler examined by psychiatrists and
sex counselors. But members of Butler's family still insist
that the defendant was "brainwashed" into volunteering. Last
week they hired a lawyer in an attempt to block the surgery.
Jesse Jackson, calling the proposal "sick," also visited the
accused man in jail, amid reports that Butler himself may be
wavering. Without a prisoner's agreement, a Texas appeals court
is unlikely to approve a castration. Not so long as the law
still holds that no sentence should be written into a prisoner's
flesh.