In an effort to appeal to popular public feelings, politicians in South Korea often make asinine proposals. The latest such proposal is the bill submitted to the National Assembly last week providing for court ordered physical castration of convicted sex offenders.
Initially this proposal appears to be a focused solution to a previously insolvable problem ― that of recidivism among sex offenders ― however the proposed law not only violates a number of South Korea’s international commitments to human rights but also ignores the psychology behind the antisocial behavior of sex offenders, is of controversial physiological effect and quite simply reintroduces medieval concepts of punishment into an otherwise modern criminal legal system.
South Korea, as a member of the United Nations, is a signatory to the U.N. Charter under which it is bound to promote universal respect and observance of human rights and fundamental freedoms.
South Korea has also acceded to the U.N. Convention Against Torture and to the U.N. Convention on Civil and Political Rights, both of which require states to prevent acts of cruel, inhuman or degrading treatment or punishment within their territories.
These treaties have the same force as domestic law under the South Korean constitution; a constitution that also requires South Korea to guarantee the fundamental and inviolable human rights of all individuals.
Physical castration violates these rights against cruel, inhuman and degrading treatment. The procedure is an invasive surgical operation wherein an essential part of the body is removed and permanently destroyed. This destruction of healthy tissue has been called “invasive, irreversible and mutilating” by the Council of Europe’s anti-torture committee and “barbaric” by the U.S. Supreme Court, which has also stated that the humiliation, the degradation and the mental suffering caused by physical castration is always present and follows the individual wheresoever he may go.
The procedure also causes a variety of side-effects including an increase in body weight, a loss of protein and keratin, and long term osteoporosis. Further, the castrated individual will never be able to sire children, a violation of the fundamental human right to procreation, a right also set forth in the U.N. Convention on Civil and Political Rights.
Despite the undeniable violations of the human rights of the offenders, those proposing the use of physical castration argue that the rights of society and any potential future victims are more important. However criminal law addresses the rights of society by providing for removal of offenders via incarceration and punishment inflicted in the name of potential future victims violates the fundamental concept that individuals are punished for past crimes, not for potential future crimes.
Beyond the violation of fundamental human rights there is the problem that physical castration does not address the underlying psychological issues that cause recidivism among violent sexual offenders. Treating rape as coming solely from the gonads of males creates the overwhelming implication that rape is caused by male sexual desire and is a part of the normal range of male sexual appetites.
Perhaps there are rare instances where such impulses are the genesis of the crime; however, the instances for which the use of physical castration is proposed involve violent sexual offenders where misogyny, entitlement or a desire for power are the actual underlying impetuses.
The proposal also disregards the possibility of rape being accomplished with other appendages as well as objects and that physical castration can be reversed by the simple administration of testosterone, which is readily available on the Internet. Arguing that the removal of the organs responsible for the production of male sex hormones will prevent recidivism among such individuals ignores these facts while implicitly linking rape with the normal sex drive of men.
Nonetheless, reviews of the effects of physical castration in European countries have shown a drastic reduction in recidivism. A review of over 1,000 castrated sex offenders in Germany reported a reduction in recidivism rates from as high as 84 percent to between 2 to 3 percent. Studies done in Norway, Sweden and Switzerland reveal a similar high rate of reduction in recidivism.
However, critics have questioned these results due to concerns over methodology and the reliance on self-reporting by sex offenders. Other studies report that over 30 percent of castrated sex offenders report a continued sex drive and an ability to attain an erection. Most significantly attempting to establish a valid recidivism rate based on subsequent convictions and self-reporting is inherently troublesome.
Finally, in modern society criminal law functions on a non-physical basis, past barbaric practices of torture and disfigurement have given way to ideas of reforming offenders or removing offenders from society through incarceration. The medieval concept of retribution no longer holds sway in the modern world.
In this context any new proposed method must be more effective and less intrusive than current methods. Forced physical castration satisfies neither of these criteria. Hopefully the South Korean legislature will remember which century it is operating in and decline to adopt the proposed law.
By Daniel Fiedler
Daniel Fiedler is a professor of law at Wonkwang University. He also holds an honorary position as the lawyer representative for international marriages in Namwon, North Jeolla Province. ― Ed.
