Ethical Treatment of Sex
Offenders: A Hypocrite’s
Oath
Renee Sorrentino, MD
Institute for Sexual Wellness
Instructor, Harvard Medical School
www.instituteforsexualwellness.org
Survey of Audience
Outline
Review of the Ethical Principles of Medicine
I.
Beneficence
II.
Confidentiality and privilege
III. Informed consent
IV. Involuntary treatment
V.
Right to refuse treatment
II.
Application of Ethical Principles to Sex
Offenders
III. Case Studies
IV. Conclusion
I.
Code of Medical Ethics

Beneficence


Non-maleficence


Avoiding harm
Respect for autonomy


Welfare of the patient is paramount
Informed consent
Justice

Patient is treated fairly, equitably, and in accordance
with his rights and entitlement
Hippocratic Oath


I SWEAR by Apollo the physician,
AEsculapius, and Health, and All-heal,
and all the gods and goddesses, that,
according to my ability and judgment,
I will keep this Oath and this
stipulation.
I WILL FOLLOW that system of
regimen which, according to my ability
and judgment, I consider for the
benefit of my patients, and abstain
from whatever is deleterious and
mischievous.

WHATEVER, IN CONNECTION with my
professional practice or not, in connection
with it, I see or hear, in the life of men, which
ought not to be spoken of abroad, I will not
divulge, as reckoning that all such should be
kept secret.
WHILE I CONTINUE to keep this Oath
unviolated, may it be granted to me to enjoy
life and the practice of the art, respected by all
men, in all times! But should I trespass and
violate this Oath, may the reverse be my lot!
Hippocratic Oath

Duty of Confidentiality



You have a duty as a clinician to respect the
patient's trust and keep this information private.
This requires the clinician to respect the patient's
privacy by restricting access of others to that
information.
Such a duty facilitates a trusting environment by
respecting patient privacy thereby encouraging
the patient to be honest.
Exceptions to Confidentiality
 Concern
for the safety of other
specific persons
 Legal
 Abuse (child or elder)
 Therapeutic privilege
Confidentiality


“Respect for the individual’s right of privacy and
the maintenance of confidentiality are major
concerns…the psychiatrist maintains
confidentiality to the extent possible given the
legal context.”
Forensic evaluations are exceptions to the rules
of confidentiality.

AAPL Ethical Guidelines
Confidentiality: Sex Offender
Confidentiality is not maintained in sex
offender treatment.
 Individuals are asked to consent to limited
confidentiality upon entry into treatment.
 Individuals may be denied treatment if they
do not consent to limited confidentiality.

Confidentiality: Sex Offender

What happened to beneficence and the
Hippocratic Oath?
 Effective treatment requires
confidentiality be breached.
 Effective treatment requires clinicians to
corroborate with corrections officers,
family, and parole officers.
Confidentiality: Sex Offender

Is the clinician a treatment provider or public
protector?

Is the primary role of treatment to benefit the
patient or to protect the public?

Both are required, and therefore clinical input
will usually be most effective when delivered as
part of a team approach.
Case: Confidentiality




Mr. Father is a 24 yo married
man who lives with his wife
in the community.
Mr. Father served 5 for
Indecent Assault and Battery
on A Minor.
Mr. Father is currently
attending sex offender
treatment as a condition of
his probation.
Mr. Father agrees with the
diagnosis of pedophilia
(sexual interest in preschool
girls).
Case: Confidentiality




Mr. Father has been a model patient.
Mr. Father reports a significant reduction in
deviant sexual fantasies as a result of therapy.
Mr. Father and his wife have decided to have a
child.
You discuss with both Mr. Father and his wife
your concerns regarding their decision to have a
child.
Case: Confidentiality




Mr. Father’s case is not one of the exceptions to
confidentiality.
Breaching confidentiality violates the non-maleficence
code of ethics (i.e. avoiding harm to the patient).
Therefore it would be unethical to breach
confidentiality.
Is it ethical to terminate with Mr. Father?
Yes, especially if you have strong countertransferential
feelings.
You have an obligation to refer him to a competent
clinician.
Case: Confidentiality
 You
are one of three psychiatrists in
the state that treats sex offenders
 Your colleagues (the other 2) are not
accepting new patients
 Is it ethical to terminate with Mr.
Father?
Yes. You must refer him to another
competent clinician.
Informed Consent


Informed consent is the process by which a fully
informed patient can participate in choices
about his health care.
Originates from
legal and ethical right the patient has to direct what
happens to his body
 the ethical duty of the physician to involve the
patient in his health care

Elements of Informed Consent

Informational
the nature of the decision/procedure
 reasonable alternatives to the proposed intervention
 the relevant risks, benefits, and uncertainties related
to each alternative


Competent



Manipulation of information
Voluntary
Reliable
Case: Informed Consent




Mr. Release is a 38 yo single, man who pled
guilty to Rape Of A Child.
Mr. Release is currently incarcerated but eligible
for parole in 3 months.
Mr. Release is requesting Lupron treatment to
decrease his pedophilic urges.
Mr. Release refused Lupron treatment when
offered in the past (while in the community).
Case: Informed Consent



Mr. Release is evaluated for his capacity to
provide informed consent for treatment
Mr. Release understands the treatment,
including the risks and benefits of treatment vs.
alternatives.
When asked why he wants Lupron treatment,
Mr. Release stated “to get the hell out of here
and never come back. I’ve been asking for it for
the past 6 months.”
Case: Informed Consent

You ask Mr. Release why he refused Lupron in
the community. He states, “I wouldn’t take it if
I didn’t have to. That stuff is risky. I just want
to get paroled.”

You ask Mr. Release if he would accept Lupron
if it did not relate to his possible parole. He
states, “Check my past. That will tell you how I
feel.”
Case: Informed Consent

Does Mr. Release demonstrate the capacity to
give informed consent regarding Lupron
treatment?
Does he understand the proposed treatment? Risk
and benefits of treatment and withholding
treatment? Alternative treatments?
 Is his decision consistent and reliable?
 Is his decision voluntary, free of coercion?
No. Mr. Release is choosing Lupron treatment because
he thinks it will be viewed positively by the parole
board.

Case: Informed Consent



You contact Mr. Release’ attorney to share your
opinion that Mr. Release cannot give informed
consent.
The attorney tells you “the only chance this man
has to get out of here is with Lupron. It’s not
ethical of you to deprive him of his right to be a
free man.”
You agree with the attorney’s statement that Mr.
Release’ release is influenced by his decision to
accept Lupron.
Case: Informed Consent

Is it ethical to refuse to treat Mr. Release on the basis
that you would deprive him of a reasonable chance of
release (freedom)?
No, it is unethical to prescribe to an individual who
cannot give informed consent.
You could allow the Judge to decide by presenting all
the data. In the absence of informed consent, the
Judge may use “substituted judgment.”
Chemical Castration
Voluntary Treatment
 Based
on respect for individual’s
autonomy
 Founded in constitutional rights
 Individuals can choose to pursue or
reject treatment
History of Chemical
Castration
By
Sara Moore, M.A.
Massachusetts School of Professional Psychology
“Keeper of the Bed”
Eunuchs have been in existence since the 9th Century BC.
Castrated men in China were in high demand to guard the grand palace and
royal quarters.
In 1996, the last noble servant passed away at the age of 94.
Hijras
India is the only country
where castration is still
practiced.
No one in the community
wants to be accosted by
one of them for fear of a
curse; however, they are
invited to bless childbirths,
weddings, housewarmings,
and other occasions.
Castrati
During the 18th Century, young males who sang in the choir were castrated to prevent the onset
of puberty.
Churches used prepubescent boys to sing the soprano sections and those displaying a voice fit for
the opera were selected and castrated.
Social Control
During the early 1800s, Dr. Harry Sharp began using
surgical castration.
He surgically castrated close to 180 prisoners in Indiana.
As a result of Dr. Sharp’s efforts, Indiana became the
first state to legalize sterilization to decrease recidivism
of certain prisoners.
Chemical Castration and the 20th
Century

The first reported use of hormonotherapy to
reduce recidivism was in 1944. Men were
prescribed medicine to lower their testosterone.

In 1960’s, German physicians prescribed
antiandrogens to limit male paraphilic behavior.
In the US…

In 1966, researcher John Money because the
first to use medroxyprogesterone acetate (MPA)
in the treatment sexual offenders.

He administered the drug to a bisexual
transvestite who was in therapy for pedophilic
behavior with his six-year-old son.
State Laws


Some states authorize castration for certain
sexual offenders who are being released back
into the community.
The two forms of castration are either surgical
castration or chemical.
Surgical Castration – the removal of the testes in an
effort to reduce the available androgen
 Chemical Castration – prescribing either an
antiandrogen or hormonal medication to decrease
testosterone production

Which States?
The following states offer some form of castration:




California – either
chemical or surgical
castration
Florida – either chemical
or surgical castration
Iowa – either chemical or
surgical castration
Louisiana – either
chemical or surgical
castration





Georgia – chemical
castration
Montana – chemical
castration
Oregon – chemical
castration
Wisconsin – chemical
castration
Texas – voluntary
Ethical Considerations

1) The states do not agree on what chemical
agents should be used for treatment.
7 states identify the use of MPA as a treatment
option
 7 permit the use of use of MPA plus other
pharmaceutical agents


2) Requirement of a medical or psychiatric evaluation
differs among the nine states.

California is the only state that does not require an
evaluation of any kind prior to treatment.
Ethical Considerations




3) How the states address informed consent.
Iowa, Florida, and Oregon: do not address
Five states: require that that the offender be informed of the
side effects and of those five, three states require the
offender to acknowledge receipt of this information.
Texas requires the most for obtaining informed consent for
treatment.






1) the offender must be 21 years or older
2) the offender must meet with a psychiatrist or psychologist
3) the offender is then monitored by someone to ensure the offender’s
consent is informed and voluntary
4) the offender must request surgical castration in writing
5) the offender has the right to change his mind at any time
6) should the offender withdraw his request, he is no longer eligible for
surgical castration in the future
Ethical Considerations

4) Whether or not psychological treatment is
required.


5) The specific length of chemical treatment
required by the 8 states.


Seven of the nine states do not require additional
therapy other than some form of castration.
To stop treatment 6 of the 8 states require that the state
or offender demonstrate that chemical castration is no
longer necessary.
6) The last component deals with liability immunity.

6 of the 9 statutes do not state whether the treatment
providers are held liable if following the standards of the
law in their state.
Forensic Implications

Infringement on the sexual offender’s First
Amendment right

Violation of the Eighth Amendment

A challenge to the Fourteen Amendment
The First Amendment

The First Amendment protects a person’s freedom
of speech, which the Supreme Court has generally
held to include the right to generate ideas,
regardless of their social worth.


Opponents argue that castration reduces or eliminates
deviant sexual thoughts and fantasies and therefore
violates the sexual offender’s right to entertain sexual
fantasies.
Proponents challenge this argument by noting that
sexual offenders have demonstrated their inability to
control their fantasies and as a result have committed a
sex crime.
The Eighth Amendment


The Eighth Amendment bans the use of cruel
and unusual punishment.
The Supreme Court assesses three questions
when determining if the punishment violates the
Eighth Amendment.
1) Is the punishment inherently cruel or excessive?
 2) Is the punishment or condition proportional to
the crime?
 3) Can the state achieve its goal through less
intrusive means?

The Eighth Amendment

Opponents argue that the laws are vindictive in
nature and intend to inflict the same type of
sexual brutality on the offender that he inflicted
on his victim.

Proponents do not consider the use of
antiandrogens as cruel since the treatment
decreases the likelihood of further crimes/future
punishments and permits the offender to have
increased freedom as a result of the treatment.
The Fourteenth Amendment


Fourteenth Amendment protects the individual’s “life, liberty, or
property” from the state “without due process of the law”.
The U.S. Supreme Court analyzes four general considerations
when an inmate refuses treatment.




1) It must be determined that the inmate suffers from a mental
illness or abnormality.
2) Treatment proposed must be in the inmate’s medical interest.
3) Must consider the safety of the inmate and the safety of others.
4) There cannot be any less intrusive alternatives to treatment.
The Fourteenth Amendment


Opponents argue that committing a sex offense
does not necessarily indicate the existence of a
mental disease or abnormality and may not be in
the inmate’s best medical interest.
Proponents argue that requiring a dangerous sex
offender to be castrated as a condition of release
serves an important interest in preventing that
individual from committing another sex crime.

Surgical & chemical castration treatment prevents
further victimization and is a less restrictive means
References





Eunuchs – India’s third gender (2002). Things Asian. Retrieved March 13,
2010 from http://www.thingsasian.com/stories-photos/2022.
La Fond, J. Q. (2005). Should sex offenders be castrated Preventing sexual
violence: How society should cope with sex offenders (pp. 167-200) Washington, DC:
American Psychological Association.
Scott, C. L. & Holmberg, T. ( 2003). Castration of sex offenders: Prisoners’
rights versus public safety. Sexual Abuse: The Journal of the American Academy of
Psychiatry and Law, 31:4, 502-509.
Sorrentino, R. (2008). Legal and privacy issues surrounding sexual disorders.
In D. L. Rowland & L Incrocci (Eds.), Handbook of Sexual and Gender Identity
Disorders (pp. 603-621) Hoboken, NJ: John Wiley & Sons, Inc.
Sorrentino, R. (2008). Paraphilias. In B. Sadock, V. Sadock, & P. Ruiz (Eds.),
Kaplan and Sadock (pp. 2090-2102) New York, NY: Lippincott Williams &
Wilkins.
Voluntary Treatment: Sex Offenders


Voluntary treatment is rarely free of coercion
Refusal to choose treatment may affect
 Parole decisions
 Limitations in visits
 Reduction of good time credits
 Restriction from lower security placement
 Referral to a denial phase of treatment
Case: Involuntary Treatment



Mr. Down has been court ordered to participate
in sex offender treatment.
Mr. Down accepted a plea bargain, pleading
guilty to Lewd and Lascivious Behavior relating
to his masturbating in front of a 10 yo neighbor
girl.
Mr. Down stated that he was masturbating in his
bathroom when his 10 yo neighbor girl opened
the door.
Case: Involuntary Treatment




Mr. Down does not have a history of sex offenses.
Mr. Down completed a comprehensive sex offender
evaluation which revealed a negative PPG, ABEL and
polygraphy.
You have determined that Mr. Down does not have a
paraphilia or problematic sexual behavior.
You have determined, however, that Mr. Down suffers
from depression. You treat Mr. Down for depression.
Case: Involuntary Treatment




You routinely provide letters to the Probation Officer
that Mr. Down is compliant with treatment.
3 months later, Mr. Down’s probation officer calls for a
detailed update.
You inform the probation officer that Mr. Down is not
in sex offender treatment but is receiving treatment for
depression.
The probation officer violates Mr. Downs as
“noncompliant with sex offender treatment.”
Case: Involuntary Treatment

Was your treatment of Mr. Down ethical?
Case: Involuntary Treatment

Was your treatment of Mr. Down ethical?
No. Mr. Down was referred to you for sex offender
treatment. You choose to provide him with
treatment for depression.
 You do not have the ability to authorize treatment
changes without the court’s approval.
 If you did not agree with sex offender treatments,
you should have informed the courts

Right to Refuse Treatment

The right of a patient to refuse treatment is based upon
five constitutional protections:





8th amendment’s protection against cruel and unusual
punishment
1st amendment’s protection of free speech
the 1st amendment’s protection of freedom of religion
the more broadly interpreted right to privacy
the 14th amendment’s protection of liberty (the right to
be free from unjustified intrusions on personal security)
Right to Refuse Treatment
Sex offenders may be court order to
treatment
 As such, offenders do not have a right to
refuse treatment
 Sex offenders are a distinct group in that
they are not allowed to refuse treatment

Challenges to Treatment Ethics
 Treatment
is offered as a component
of punishment
DOC programs, probation/parole
conditions
 Beneficence is incompatible with
punishment
Mr. Lee




Referred to sex offender therapy as a condition of
his probation.
34 yo man, born and raised in China. He is a
Buddhist and opposed to western medicine.
Requested an individual therapist who is
knowledgeable about his culture.
Mr. Lee’s request was denied by the court.
Case: Right to Refuse Treatment




Does Mr. Lee have a right to chose his
treatment provider?
Does Mr. Lee have a right to engage in and to
terminate professional relationships?
Does the therapist have an ethical duty to
promote the offender’s right to selfdetermination?
Is it ethical to force patients to adopt specific
attitudes, values, and behaviors determined
largely by the therapist?
Case: Right to Refuse Treatment

Is it ethical to force patients to adopt specific
attitudes, values, and behaviors determined
largely by the therapist?


Mr. Lee’s treatment will be influenced by the
therapists attitude and values.
What about therapeutic alliance?

Effects whether the patient advances or fails
treatment by setting up goals which may not be
relevant and
Case: Right to Refuse Treatment

Is it ethical to force patients to adopt specific
attitudes, values, and behaviors determined
largely by the therapist?
If Mr. Lee is competent, he can chose the
treatment/treater of his choice except in the are of
sex offender treatment.
 Sex offenders do not have a choice about treatment
or treaters regardless of competency.

Case: Right to Refuse Treatment




Mr. Eskimo has been court mandated to receive Lupron
treatment as part of his probation.
Mr. Eskimo has been diagnosed with Klinefelter’s syndrome
(genetic disorder), pedophilia and sexual sadism.
He requested data about the efficacy of Lupron in Eskimo’s with
Klinefelter’s syndrome and paraphilias.
You tell Mr. Eskimo that there is no data for this patient
population.
Case: Right to Refuse Treatment



Mr. Eskimo asks your medical opinion about the
efficacy and safety of Lupron in his case?
You tell Mr. Eskimo you can only theorize and do not
have evidence to support you theory?
Is it ethical to prescribe Lupron in this case?

Mr. Eskimo cannot give informed consent since the efficacy
of Lupron in his case are not known.
Case: Surgical Castration




Mr. Cutit is requesting surgical castration to
diminish his pedophilic urges.
Mr. Cutit has failed treatment with multiple
SSRI agents.
Mr. Cutit states, “I am tormented by these
thoughts and I just want them to go away
forever.”
Mr. Cutit refused hormonal agents stating, “I
want to absolute treatment. I don’t want to take
a medication.”
Case: Surgical Castration


Mr. Cutit has been provided literature about
chemical castration. He continues to refuse
chemical castration complaining of possible side
effects and his determination for “absolute
treatment.”
Mr. Cutit understands the indication,
risks/benefits of surgical castration, possible
alternatives. He demonstrates a consistent,
voluntary decision to choose surgical castration.
Case: Surgical Castration


Mr. Cutit demonstrates the capacity to provide
informed consent for surgical castration.
Is it ethical to treat Mr. Cutit with surgical
castration?
Is surgical castration a reasonable treatment?
The treatment (castration) exceeds the cure
(decreased sex drive)
Chemical castration is equally efficacious and
reversible
There is no scientific rationale for surgical castration
Case: Chemical Castration



Mr. Opportunity is a 38 yo single man who
served 8 years for Indecent Assault and Battery
on a Child.
Mr. Opportunity is living in the community and
attends sex offender therapy groups on a
voluntary basis.
When he was incarcerated he learned that some
sex offenders are court mandated to have
chemical castration.
Case: Chemical Castration



Mr. Opportunity attended groups while
incarcerated with individuals who received court
ordered chemical castration.
Mr. Opportunity is requesting chemical
castration as he believes it will decrease his
sexual urges.
Mr. Opportunity demonstrates the capacity to
make informed decisions regarding chemical
castration.
Case: Chemical Castration



Mr. Opportunity has been informed there are no
community psychiatrists willing to provide
chemical castration.
Mr. Opportunity contacted the DOC to inquire
about psychiatrists who provide chemical
castration.
The DOC told him that psychiatrists are
available only to SVPs
Case: Chemical Castration

Is it ethical to offer treatment to SVPs and not
community placed offenders?
 Medical treatment should be available for all
 An individual should be given the chance to
participate in a treatment that has been shown to
decrease sexually deviant thoughts.
 If a medication reduces sexually deviant thoughts, it
should be available to all who want and desire it.
Case: Chemical Castration

In Paoli v. Gailey (MD)


McDonald v. Warden State Prison (CT)


DOC were told that they could not refuse to give
MPA to an inmate who requested the treatment and
was medically appropriate
DOC backed down in its refusal to supply an inmate
with MPS when it hand no evidence to support why
they denied it
Ohlinger v. Watson (9th Circuit)

Offender is entitled to the best opportunity for
rehabilitation, regardless of cost, staff availability or
facilities.
Case: Mr. Gee




Mr. Gee is a 28 yo single, man with a 10 yr
history of exhibitionism.
He has been incarcerated 4 times for this
behavior.
Mr. Gee has been unsuccessfully treated with
SSRIs.
Mr. Gee is requesting Lupron treatment for his
uncontrollable urges to expose.
Case: Off Label Use



Mr. Gee demonstrates the capacity to provide
informed consent regarding the use of Lupron
Mr. Gee has been reading about Lupron and
asks you for a reference regarding the use of
Lupron for exhibitionism.
You tell Mr. Gee that there are research papers
supporting this indication but no FDA approval.
Case: Off Label Use



Mr. Gee looks worried and states “I’m taking a
drug with serious adverse side effects that has
not been FDA approved?
You tell Mr. Gee that Lupron has been FDA
approved for other disorders but not for
paraphilias
Is it ethical to prescribe Lupron for an “off label
indication?”
Are Ethical Codes Necessary?
Are Ethical Codes Necessary?
 Ethical
codes establish standards of
conduct
 Protection and promotion of particular
professional groups
 Establish a public commitment by a
professional group to a particular set
of standards and rules
Adopting a Framework
Conceptualize “society” as the patient
 The ethical principles apply to the “societal
patient”
 The primary measure of treatment success
is the protection of society


(not amelioration of the individual’s condition)
Adapting a Framework

Paternalism
 Provides a way for clinicians to adopt
traditional codes of ethics
 Specifics of the situation justify the
dominance of one particular principle
 Ultimately interested in the welfare of the
clients
 Promoted increased long-term autonomy
Adapting a Framework

Paternalism
 Teach offenders to understand their
patterns of behavior and to recognize
the consequences thereby ultimately
increasing the offenders’ capacity to
make informed and rational life choices
 “I know what’s best for you.”
Adopting a Framework

ATSA has recognized the need for special
ethical considerations when working with sex
offenders
 1993 first developed guidelines
 Endorses standards of professional conduct
that represent a public commitment to clients
and society toward the goal of preventing
sexual violence
Evidence Based
Arguments
 Is
compliance affected by informed
consent?
 Are voluntary patients more likely to
comply with treatment compared with
involuntary patients?
Evidence Based
Arguments
 Some
studies (Maletzky, 1980) show
that there is little difference in
compliance between voluntary and
involuntary patients
 Does it matter whether we obtain
informed consent if the outcome is the
same?
Conclusions



The ethical issues that arise in the treatment of
sex offenders are unique to this patient
population.
The traditional codes of confidentiality,
informed consent, beneficence, and justice are
not applicable to the treatment of sex offenders
The ethical treatment of sex offenders requires a
re-framing of traditional medical/therapist
ethics.