Why Madras HC judges call for castration of child abusers could be detrimental and impractical
Voices Perspective Monday, October 26, 2015 - 17:55

“CASTRATE CHILD ABUSERS”

That’s how Justice N Kirubakaran of the Madurai Bench of the Madras High Court begins his latest judgment on a child sexual abuse case against a foreign national. The judge orders that castration be considered as additional punishment by the central government. He thinks castration could bring “magical results”.

The honorable judge also comes off as quite self-aware when he states that he knows “the suggestion of ‘castration’ would be surely condemned, censured and criticised as “barbaric, punitive, draconian, cruel, retrograde, stone aged, cannibalistic, inhuman, etc.”

Your Honour, let’s add a couple of more words to that list. Castration as a form of legal punishment could also prove to be extremely ‘impractical’ to implement and ‘detrimental’ to convicting the alleged child abuser, especially if the accused is a foreign national.

In this particular case, the accused is a foreign national who has refused to come to India for the trial. He can only be brought to justice after extradition, and experts point out that blunt calls for castration by a judge can be detrimental to the case.

Extradition cases can be extremely tricky and courts in foreign countries have been known to be favourable to their own citizens. For instance, in the case of Raymond Varley, a British sex offender accused of child abuse in Goa, a British court refused extradition because he claimed to be suffering from dementia and the court felt he could not stand trial in India.

In his earlier petition to stonewall his extradition, Varley had also claimed that being in an Indian jail during trial would violate his human rights. The UK court went to the extent of consulting two experts to give their assessment of jails in India. In such circumstances, foreigners accused of abuse in India could now use Justice Kirubakaran’s call for castration in a judgment to make the case that the Indian judiciary could violate their human rights, thereby making a valid case against extradition.

What’s worse, the judge has not been specific as to what kind of castration he means, leaving it open to interpretation. Physical castration, which is surgical removal of the testes, is indeed barbaric and would be considered a violation of human rights in most civilised countries.

In most countries which allow chemical castration, which is the injection of drugs to reduce the sexual libido of a person, the process is voluntary and coupled with therapy. India is in no position to implement such a process, say experts. The voluntary nature of the ‘punishment’ is made possible by plea bargains, where a convict can choose castration for a reduced jail sentence. Further, the convicts are put through rigorous psychiatric and medical assessment before they are given the option. India does not have a plea bargain system, or the resources for providing therapy to the abusers.

Many also argue that lowering testosterone levels need not necessarily eliminate the possibility of sexual assault and this also exposes the mindset that only men can be abusers. “You can use other body parts, fingers, mouths, etc. Castration may lower someone’s sex drive, but it doesn’t lower their risk to offend,” argues Mike Carroll District Attorney in California, US.

Writing in The Hindu about violence against women, Anup Surendranath, an Assistant Professor of Law at National Law University in Delhi, argues that castration as a legal response shows that our understanding of sex offenses is narrow, since the role of sex in rape is limited. “Violence, power, aggression and humiliation are central to understanding rape, and sex is only a mechanism used to achieve those aims,” he writes.

“It is difficult not to succumb to the intuitive appeal of chemical castration as a response to rape. But it is an intuitive appeal that fades away on intense scrutiny. Intuition can be a great asset in politics of all sorts, but it is best avoided while contemplating a law requiring huge public investment, whose potential for abuse is immense and the benefits of which are, at best, uncertain,” he further writes.

The Justice JS Verma commission which was constituted to look into issues relating to violence against women in India after the 2013 Nirbhaya case also rejected chemical castration, stating that mutilation of the body is not permitted by the Constitution of India.

Activists also point out that our mindset should shift from that of vengeful punishment to reducing the crime, and one of the most effective ways of doing so is working with juveniles who show early signs of sexual violence and paedophilia.

Responding to calls for chemical castration in the US, Dr. Fred Berlin, founder of Baltimore's Johns Hopkins Sexual Disorders Clinic had said, “What’s behind this is the ‘Let’s just castrate the bastards’ mentality,” and adds, “and that doesn’t work very well.”

However, it must be pointed out that this judgment was not just about castration, even if it was the leitmotif of his verdict.

What must be appreciated is that the judge calls for “Free and Compulsory Comprehensive Sexuality Education in High School level to enable the students to understand gender identity, their sexuality, age related physical changes and problems, to protect themselves from sex advances and abuses” and also orders the central government to create awareness programs for children.

More importantly, the judge has ordered that the Union Government should incorporate columns in Indian Visa forms issued to foreign nationals, that give details of their cases pending including those of conviction. He orders that the Union Government should permit foreign nationals to start homes, orphanages, shelters for children and orphans only after thoroughly verifying their antecedents from their respective country and INTERPOL.

Show us some love! Support our journalism by becoming a TNM Member - Click here.