Sentences Inscribed on Flesh

By Richard Lacayo

Texas District Judge Michael McSpadden has a solution for rapists: castrate them. Steven Allen Butler, an accused rapist, had an offer for Judge McSpadden: Castrate me. Last winter, while he was on probation for molesting a seven-year-old girl, Butler was arrested for the rape of a 13-year-old. In October, after McSpadden aired his views on castration in the Houston Post, Butler's attorney proposed a deal. Instead of undergoing a trial in which he faced a plea-bargained 35-year prison sentence, Butler agreed to be surgically castrated if he could go free at once on probation. McSpadden said fine.

Now Butler has a new attorney, and second thoughts. Butler's relatives declared last week that he would prefer to stand trial after all, rather than go through with the surgical procedure. The reversal followed an outcry from legal experts, which drew attention to the implications of allowing prisoners to barter body parts for their freedom.

There are times when the government lays its hands, sometimes not so gently, on the human body. But the judicial system's responsibility to justify its actions grows heavier as it presumes to act more seriously against the flesh -- or one's "bodily integrity," as some legal thinkers and ethicists put it. At one end of the spectrum is the police officer who gently pushes back a crowd when a parade comes down the street. At the other end is the executioner. In between are compulsory blood tests for drug use or AIDS, court-imposed caesareans and the sterilizations that were once imposed upon the retarded. While admitted criminals have fewer protections than other citizens, the constitutional bans on unreasonable search and seizure and cruel and unusual punishment should protect them from unjust violations of the body. But the courts have never reached a consensus about which punishments are cruel or unusual. And if the accused agrees to the penalty, who's to object?

"There should be an overwhelming presumption against having the long arm of government touch the human body and the human psyche in intimate ways," says Harvard law professor Laurence Tribe. By that measure, modest intrusions with & clear benefits can pass the test. One example: because there is strong evidence that compulsory vaccination is an effective public health measure, the Supreme Court has approved it even for those with religious objections.

Surgical procedures, more painful and profound, make courts more wary. Two years ago, a Chicago court refused to require twins to undergo tests to determine if their bone marrow could help their half brother who was dying of leukemia. In 1987 a Washington federal court ordered a pregnant cancer patient to undergo a caesarean delivery in an attempt to save the fetus, even though she and her doctors opposed the operation. The baby lived for just two hours. The woman died two days later. But the lower-court ruling doesn't provide a precedent because it was vacated by an appeals court the following year.

Even medical treatments that are reversible are generally looked at carefully by courts if they involve reproductive ability. Rapists have been allowed to evade prison by agreeing to accept continuing treatment with Depo- Provera, a drug that inhibits the male sex drive by sharply -- but temporarily -- reducing the body's production of the hormone testosterone. But when a judge attempted to compel a convicted rapist to accept Depo-Provera as a condition of probation in 1984, he was overruled on appeal. Two years ago, a California woman found to have beaten her two young children with a belt agreed to a probation arrangement under which she would use Norplant, the birth-control strips inserted just beneath the skin that release contraceptive hormones into the blood for up to five years. When she withdrew her agreement, the court did not compel her to accept the treatment.

The effects of Norplant and Depo-Provera are reversible; castration is not. In the U.S., the last court-ordered procedure was carried out on a Texas rapist in 1864, before castration became one of the defining obscenities of Nazi Germany and the Ku Klux Klan. However, the idea has been finding favor again as prisons become so crowded that even violent offenders serve just a fraction of their sentences. In the past decade judges have several times sentenced rapists to be castrated, but the sentences have been disallowed on appeal. Two years ago, state legislatures in Alabama, Indiana and Washington rejected bills to allow sex offenders to be castrated in exchange for reductions in their prison sentences.

Judge McSpadden has a social-benefit explanation for the deal he wants to make with Butler. With the criminal-justice system floundering, he says, society needs to consider new ways to control violent offenders. Because the testicles produce most of a man's testosterone, McSpadden says, castration will diminish Butler's sexual drive and aggressiveness. "Nobody's going to call that cruel and unusual punishment," he concludes. "They're going to call that effective punishment."

It might also be effective to cut off the hands of thieves, as the law provides in some Islamic nations. But in American law the effectiveness of a punishment is balanced against the consideration of whether it is inhumane or excessive to the purpose. And in the matter of castration, even its effectiveness is disputed. Though a castrated male will no longer produce semen, he is still capable of an erection. And even men who are incapable of an erection can commit sexual assaults. Most experts regard sexual assault as an act of violence, not desire, an explosion of rage by an attacker who is often dysfunctional at the crucial moment.

Michael Cox, director of the sexual-abuse treatment program at Baylor College of Medicine in Houston, is worried that castration will only aggravate the depression and self-contempt that can make sex offenders more likely to strike. "Violent crime is not surgically reversible," says Cox, who was asked by the court to examine Butler and who tried to dissuade him from opting for castration. "You're not going to undo a criminal personality by playing around with a person's hormone levels."

In the end, it's not a judge but a doctor who must stand over the accused, scalpel in hand. The American Medical Association opposes the use of medical procedures as a part of criminal penalties. "Physicians have no business acting as agents of the state to punish people," says Dr. George Annas, a professor of health law at Boston University medical school. "This includes sterilization, any surgical procedure or ((implanting)) Norplant." In the Butler case so far, one doctor has already withdrawn his agreement to perform the castration.

Judge McSpadden had Butler examined by psychiatrists and sex counselors. But members of Butler's family still insist that the defendant was "brainwashed" into volunteering. Last week they hired a lawyer in an attempt to block the surgery. Jesse Jackson, calling the proposal "sick," also visited the accused man in jail, amid reports that Butler himself may be wavering. Without a prisoner's agreement, a Texas appeals court is unlikely to approve a castration. Not so long as the law still holds that no sentence should be written into a prisoner's flesh.

With reporting by Andrea Sachs/New York and Richard Woodbury/Houston