The use of depo‐provera in the treatment of sex offenders: The legal issues

Abstract

Because of societys intolerance of deviant sexual activity the issue of what treatment or punishment should be imposed on offenders has been raised. Suggested alternatives to imprisonment include behavior modification or behavior control through psychotherapy or organic therapy a procedure that modifies behavior by altering the chemical or neurological bases of behavior feelings or thought processes. The most important recent organic therapy for sex offenders involves regulation of hormone levels through injections of Depo-Provera--a drug which substantially decreases the sex drive frequency of erotic fantasies erections and ejaculations. Serious issues are involved however. The long-term risks of depo-Provera are unknown and its effect on sexual functions is similar to physical castration which is not legally sanctioned. The constitutionality of such treatment whether individuals charged or convicted of sex offenses can voluntarily consent to depo-Provera treatment and whether those who do consent to it have given a legally informed consent to such treatment are questioned. This article examines depo-Provera usage potential limitations on state power to impose depo-Provera treatment against an offenders will and the problem of consent. Although depo-Provera appears to be the most effective method of dealing with sex offenders treatment cannot be imposed without careful consideration of the offenders desires and interests. Although the state has a valid interest in protecting the public from sex offenders this concern is insufficient to override the offenders right to mental and bodily privacy especially when other methods exist. It appears that depo-Provea would not survive a constitutional balancing test. Compulsory treatment may violate the offenders moral right to be treated as a person and the implicit constitutional right to be punished. It may also violate the 8th amendments ban on cruel and unusual punishment. Mandatory depo-Provera programs appear immoral and unconstitutional. With valid consent given however voluntary depo-Provera treatment is a viable and constructive alternative to imprisonment.