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John McMillan's detailed ethical analysis concerning the use of surgical castration of sex offenders in the Czech Republic and Germany is mainly devoted to considerations of coercion.1 This is not surprising. When castration is offered as an option to offenders and, at the same time, constitutes the only means by which these offenders are likely to be released from prison, it is reasonable—and close to the heart of modern medical ethics—to consider whether the offer involves some kind of coercion. However, despite McMillan's seemingly careful consideration of this question, it appears to us that the matter is more complicated than his approach to it suggests.
The first thing that adds to the complexity of the discussion concerns the alternative for sex offenders who do not accept the offer of castration. As mentioned, it is likely that these offenders will be kept in prison. McMillan even underlines that they may be detained ‘indefinitely’. And the response report of the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT) to the Czech Government also emphasises—as part of the Czech Criminal Code—the possibility of ‘security detention’ that will last for as long as required for ‘the protection of society’.2 Suppose, arguendo, that this way of treating dangerous sex offenders is morally acceptable (or required); that it is, more precisely, justified to detain dangerous sex offenders for consequentialist reasons. In that case, this may well have direct implications with regard to the discussion of the moral legitimacy of coercive offers. It is very hard to imagine a consistent way of defending, on the one hand, the view that keeping sex offenders in life-long detention is justified by reference to the benefit of society while, on the other, to contend that presenting a coercive offer to a sex offender is morally forbidden even if this would benefit society. Surely the former situation involves a much more severe use of force or coercion than the latter. Of course, it might be held that lifelong detention is justified in a non-consequentialist way. This possibility cannot be discussed within the scope of this commentary. However, as indicated, the point is that penal theoretical considerations of the justification of keeping dangerous offenders incarcerated may have direct implications with regard to the question as to whether it is acceptable to use coercion in other respects (such as in relation to the offer of surgical castration), and that these considerations, therefore, cannot, such as is the case in McMillan's analysis, be ignored in an adequate moral analysis—and rejection—of coercive measures.
The second aspect of the analysis that deserves comment concerns the overall conclusion that is drawn on the ground of the considerations on coercion. McMillan distinguishes three ways in which we might categorise the coerciveness of castrating sex offenders: (1) a coercive threat, in which the state makes it clear that it will do everything possible to ensure that the sex offender is not released if castration is not accepted; (2) a coercive offer, in which a psychiatrist intends the fact that the state will not release the offender (if he is not castrated) to be the operant reason for accepting castration and (3) an offer of castration where the link to early release is not intended by the psychiatrist as a reason for the sex offender to be castrated (and which, therefore, is not coercive at all). McMillan regards (3) as morally acceptable, which is why he opposes CPT's critique of what is occurring in the Czech Republic and Germany, but rejects (1) and (2). But, why does he regard (1) and (2) as unacceptable?
The answer is not that coercion is always wrong. McMillan himself mentions examples of acceptable threats and offers and, furthermore, suggests there are occasions when there ‘are other weighty moral considerations that mean that coercion is justified’. Why then reject coercive surgical castration? What he suggests is that sex offenders should not be coerced—neither by threat nor offer—because castration is ‘… a permanent physical alteration with significant implications for the person concerned…’. However, this argument strikes us as defective.
First, it is not absolutely clear what the argument implies. For instance, when should the consequences for a person be regarded as sufficiently ‘significant’ and, is it a necessary condition that the alterations are ‘permanent’? Thus, clarification would be desirable. Second, if McMillan accepts that coercion can be justified when there are sufficiently strong countervailing reasons, why are such reasons in the case of castration (for instance, the likely earlier release of the castrated offender; the money the state saves from an earlier release, etc) not sufficient? To this, McMillan offers no answer. Third—and perhaps most importantly—is it really plausible to rebut coercive offers even if they have significant and permanent implications? Suppose that a doctor offers a patient a particular treatment (perhaps surgical castration) as the only way in which the patient can be cured of an otherwise fatal disease. No one would object to this type of offer (in fact, such a situation within the healthcare system occurs frequently). However, when making this offer, it is reasonable to assume that the doctor intends the terrible scenario (if the treatment is not accepted) to be the operant reason for the patient to choose the treatment. But this is precisely what McMillan rejects in the case of the psychiatrist and the sex offender. The psychiatrist must not intend the lifelong detention to be the operant reason for accepting castration. This, in our view, suggests that McMillan's rejection of (2) is premature. Perhaps it might be responded that the doctor's offer of treatment is not a coercive offer at all. However, since McMillan has very little to say on the precise definition of coercive offers, this answer simply confirms our overall claim that further considerations are required.
Thus, though McMillan presents many important considerations, and even though we have not here challenged his overall conclusion concerning the practice of surgical castration in the Czech Republic and Germany, it seems to us that the reasons that have led to this conclusion require much further scrutiny.
Competing interests None.
Provenance and peer review Commissioned; internally peer reviewed.
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