basing legal decisions on empirically accurate truths, and the like. These, clearly, will vary among legal thinkers.
receive chemically castrating injections as a condition of probation in the United States was Joseph Frank Smith, of San Antonio, Texas, in 1983.)291 Recently six states have enacted legislation allowing (and in some cases requiring) chemical treatments of certain sex offenders, including rapists.22 At least twenty-two other state legislatures have considered similar legis- lation,293 and bills apparently remain pending in six of them.2 4 While many different scientific, legal, and policy issues are involved95 behavioral biol-
ogy is relevant to these developments in at least two ways.
First, the advisability of supporting chemical castration initiatives de- pends in part on the likelihood that chemical castration will in fact reduce recidivism. Chemical castration, like surgical castration, reduces the pro- duction and effects of testosterone. The male brain functions differently in the presence or absence of different hormones, and in this case decreasing testosterone decreases sexual desire. Consequently, the likelihood of re- ducing recidivism through chemical castration depends, in part, on the ex- tent to which the likelihood of raping is in fact influenced by sexual desire.
From the evolutionary perspective, sexual desire is likely to be a sig- nificant contributor to rape patterns. Chemical castration should therefore be effective at lowering rape recidivism rates. Empirically, existing data on recidivism rates after chemical castration are few and unclear.296 Recidi- vism of previously incarcerated rapists is generally considered to be quite high,297 although here, too, studies employing different methodologies vary considerably.298 Data on paraphiliacs, who exhibit a pattern of sexual arousal characterized by a specific fantasy, clearly indicate that chemical treatments dramatically reduce recidivism rates.29 But there are far less
A. Vanderzyl, Comment, Castration as an Alternative to Incarceration: An Impotent Approach to the Punishment of Sex Offenders, 15 N. ILL. U. L. REv. 107 (1994).
291. See ALLISON & WRIGHTSMAN, supra note 5, at 239.
292. These states include California, Florida, Georgia, Louisiana, Montana, and Wisconsin. For a helpful overview of pending legislation, as of its date of publication, see Beth Miller, A Review of Sex Offender Legislation, 7 KAN. J.L. & PUB. POL'Y 40 (Spring 1998).
293. Bills allowing chemical castration have been introduced in the legislatures of Alabama, Arizona, Colorado, Delaware, Hawaii, Iowa, Maryland, Michigan, Missouri, Mississippi, New Hampshire, New Jersey, New Mexico, Nevada, New York, Oklahoma, Oregon, South Carolina, Tennessee, Vermont, Washington, and West Virginia.
294. These six states are: Delaware, Hawaii, Michigan, New Jersey, New York, South Carolina.
295. These include, for example, the extent to which chemical treatments affect different kinds of sex offenders, the extent to which side effects of chemical treatment are reversible, whether chemical castration is cruel and unusual punishment prohibited by the Eighth Amendment, whether there is a First Amendment right to fantasize sexually, and whether chemical castration transgresses privacy and individual liberty rights under the Fourteenth Amendment. See generally sources cited supra note 290.
296. See Vanderzyl, supra note 290, at 116-17 (citing studies).
297. See, e.g., Gene G. Abel et al., The Components of Rapists' Sexual Arousal, 34 ARCHIVES GEN. PSYCHATRY 895 (1977) (estimating recidivism rate at 35%).
298. See Mamie E. Rice et al., A Follow-up of Rapists Assessed in a Maximum-Security Psychiatric Facility, 5 J. INTERPERSONAL VIOLENCE 435 (1990) (discussing studies, statistics, and variables).
299. See Icenogle, supra note 289, at 287, and sources cited therein.
data on rapists generally. Norwegian and Danish studies tend to support the conclusion that surgical castration, at least, lowers rapist recidivism rates dramatically."° But most such studies are dated, based on small samples, or both. Studies on chemically treated "sexual aggressives," some of whom were rapists, suggest recidivism rates lower than those for untreated sexual aggressives3 0 But the results, while generally consistent with prediction, are not fully compelling. So the effectiveness of existing state chemical castration initiatives remains to be convincingly demonstrated. Behavioral biology does, however, suggest a firm theoretical basis for further explor- ing the use and effectiveness of chemical castration as a means of reducing recidivism. Indeed, if rape behavior is at all increased by reduced access to willing sex partners, and if having been incarcerated makes one a less de- sirable sex partner than before (through decreased status and opportunity cost to lifetime earnings) incarceration might marginally increase the like- lihood of recidivism.
One difficult aspect of weighing the advisability of chemical castra- tion alternatives to preexisting legal treatment of rapists is that while evo- lutionary biology predicts that chemical castration will decrease recidivism among treated rapists generally, because sexual desire plays some role in the average rape, it may not prevent recidivism in all cases. We therefore may anticipate that one cost of chemical castration policies will be those rapes that would not have occurred under traditional sentencing and parole procedures. This cost, however, must be compared to the cost to society, measured by the recidivism of released rapists not chemically castrated.
Second, behavioral biology is relevant to the permissibility of chemi- cal castration. Challenges to chemical castration statutes (including one apparently planned by the American Civil Liberties Union)3"a are expected to raise First, Eighth, and Fourteenth Amendments issues, among others.
Under the Eighth Amendment prohibition against cruel and unusual pun- ishment, for example, if chemical castration is an aspect of state punish- ment, it could be held unconstitutional if it is either unnecessary or applied
300. See Baker, supra note 290, at 384 (citing and discussing studies). One more recent report suggests that surgically castrated sex offenders have a 3% recidivism rate, while uncastrated sex offenders have a recidivism rate of roughly 46%. See Jennifer Nadel, Castration Was My Cure, SUNDAY TELEGRAPH (LONDON), July 24, 1994, at 12. The latter figure approximates a 52% re-arrest rate, within three years of prison release, for convicted rapists in the United States. See David Gelman et al., The Mind of the Rapist, NEWSWEEK, July 23, 1990.
301. See Fred S. Berlin et al., A Five-Year Plus Follow-Up Survey of Criminal Recidivism Within a Treated Cohort of 406 Pedophiles, 111 Exhibitionists and 109 Sexual Aggressives: Issues and Outcome, 12 AM. J. FOReENSIC PSYCHIATRY 5, 22 (1991); Walter J. Meyer III et al., Depo Provera Treatment for Sex Offending Behavior: An Evaluation of Outcome, 20 BULL. AM. ACAD. PSYCHIATRY L. 249,254-55 (1992).
302. See Miller, supra note 292, at 57. For speculation about legal arguments likely to be raised, see id.; Murray, supra note 290.
arbitrarily. 3 Again, whether chemical castration is sufficiently necessary and nonarbitrary depends, in part, on the extent to which rape is in fact typically influenced by sexual desire.
When legal thinkers assess the advisability and constitutional permis- sibility of chemical castration, the theory of rape causation carries great weight. If rape behavior is not significantly influenced by the biology and evolutionary history of sexual desire, then the advisability and constitutionality of chemical castration as a sentencing alternative, sup- plement, or condition of parole is harder to defend.304 A great many com- mentators today,3 5 including a number of legal thinkers, °6 subscribe to the following view:
[B]ecause [rapists'] conduct is often motivated by anger and hatred rather than sexual desire, a treatment that merely curbs sexual desire bears no reasonable relationship to the offender's criminal behavior.... [B]ecause [rapists] are motivated not by sexual drive, but by intense feelings of hatred and hostility, the procedure may cause an increase in the occurrences of this type of sexual battery.307
These critics maintain that the effect of chemical castration on recidivism is likely to be low because rape is primarily a crime of violence, not sexual desire (The Error of the False Dichotomy),38 and because treated rapists are therefore likely to find other ways of expressing the same antipathy toward women. If, however, rape behavior is significantly affected by male biology, psychology, and evolutionary history, as the biobehavioral theo- ries and data seem to suggest, then chemical treatment may reduce the re- cidivism rate further than incarceration alone. This would render chemical castration sufficiently effective to be seriouslyr considered, and sufficiently nonarbitrary to be constitutionally permissible.
Of course, there are other values at work here. We are generally hesi- tant (in a fashion undoubtedly susceptible of evolutionary analysis) to have
303. See Furman v. Georgia, 408 U.S. 238,281-306 (1972) (Brennan, J. concurring) (articulating, in context of racially-biased death sentences, how these commonly used constitutional tests are employed); see also Bund, supra note 290 (evaluating a number of constitutional challenges to chemical castration).
304. For a discussion about how evolutionary analysis might, among other things, make physical castration an effective deterrent and punishment, see BECKSTROM, supra note 15, at 53-65.
305. See Green, supra note 290, at 8 (reporting views of other commentators that reducing a rapist's sexual drive will only result in his exercising deviance in other ways); Hicks, supra note 290, at 647 (noting that "[mI]any experts say that castration will not work because rape is not a crime about sex, but rather a crime about power and violence.").
306. See, e.g., Bund, supra note 290, at 188-89.
307. Spalding, supra note 290, at 132-33 (citations omitted). The quoted language contrasts the possible utility of chemical castration of paraphiliacs with the chemical castration of other sex offenders, including most rapists. But see Icenogle, supra note 289, at 281-82 (suggesting that chemical castration may be useful at least for those rapists who do have sexual fantasies).
308. See supra notes 157-171 and accompanying text.
our legal system interfere with procreative liberties."9 And to the extent that chemical castration may do so, we are properly cautioned. Neverthe- less, the effects of chemical castration are apparently reversible. Therefore they likely have, at worst, no more effect on a rapist's future reproduction than does a similar period of incarceration. This makes chemical castration a more appealing alternative to, for example, surgical castration.
2. Example: Punishments Varying by Victim Age
In some jurisdictions, rapists are statutorily subject to different incar- ceration periods depending on the age of their victim. In Illinois, for exam- ple, the victim's age at the time of rape ("criminal sexual assault") has potentially serious consequences for the rapist's sentence. Far longer prison terms may be imposed if the victim is under the age of thirteen or over the age of fifty-nine."'
There are a wide variety of reasons why it might be appropriate for rapists targeting victims in these age ranges to be singled out for special punishment. One of those reasons might be the belief that victims in these age ranges are more likely to be targeted than victims of other ages (on the theory, perhaps, that rapists preferentially target the most vulnerable women), and that increasing penalties will increase deterrence of crimes committed against women of those ages. Another reason might be the be- lief that victims in these age ranges are likely to be more traumatized by rape than victims of other ages, and that therefore that the penalty should be increased as the harm inflicted is increased. A third might be that the public finds rapes of females in these age groups particularly offensive.
If either of the first two of these rationales is in fact animating the legislature, behavioral biology could be relevant. First, behavioral biology makes some sense of statistics, typically misunderstood or ignored, indi- cating that females outside reproductive ages are in fact far less likely to be targeted for sexual assault.31' Second, behavioral biology predicts, and at least one study has found, that women outside the reproductive ages, while
309. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 849, 851 (1992) C'[T]he Constitution places limits on a State's right to interfere with a person's most basic decisions about family and parenthood," such as "personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education."); Eisenstadt v. Baird, 405 U.S. 438 (1972) (holding state statute impairing access to contraceptives unconstitutional); Griswold v. Connecticut, 381 U.S. 479 (1965) (same); Skinner v. Oklahoma, 316 U.S. 535 (1942) (holding state statute requiring sterilization of certain habitual criminals unconstitutional).
310. Compare 720 ILL. Comp. STAT. ANN. 5/12-13 (West 1993 & Supp. 1997) (criminal sexual assault), with 720 ILL. C iM. STAT. ANN. 5/12-14 (West 1993 & Supp. 1997) (aggravated criminal sexual assault). Under the Illinois statute, criminal sexual assault, a Class I felony, carries a prison term of 4 to 15 years, see 730ILL. Coaip. STAT. AN'N. 5/5-8-1(a)(4) (West 1997), while aggravated criminal sexual assault, a Class X felony, carries a prison term of 6 to 30 years. See 730 ILL. CRUM. STAT. ANN.
5/5-8-1(a)(3) (West 1997).
311. See supra notes 126-132 and accompanying text.
clearly traumatized, are traumatized less by rape, on average, than are women inside their reproductive years.312 Obviously, the relevance, if any, of behavioral biology depends on precisely what values a legislature is at- tempting to vindicate. But these are examples of values as to which effec- tive legal policy could be informed by behavioral biology. For if the study of behavioral biology leads us to data that are in fact consistent with biobehavioral theory but inconsistent with the assumptions upon which different sentencing schedules rest, then we may wish either to change the schedules or rest them on alternative grounds.