FLORIDA SENTENCING BLOG

A discussion of contemporary law, policy, and practice in Florida criminal sentencing.

Chemical Castration for Rapists

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Chemical castration is the use of hormonal medication used to suppress the sexual drive. It is used mainly by countries as a preventive measure or punishment on people who violate their laws on sexual behavior. The term “chemical castration” is a misnomer: It should be more appropriately called “hormonal androgen depletion” or “anti-hormone treatment.” Its effects are completely reversible. Medroxyprogesterone acetate (MPA), the drug mandated by the Florida Legislature for use in chemical castrations, is more commonly known as Depo-Provera. In men, the drug reduces the production of the hormone testosterone in the testes and the adrenal glands, and, therefore, reduces the level of testosterone circulating through the bloodstream. As testosterone levels drop, so does the putative sex drive in most men. The physiological effects of Depo-Provera thus include temporary diminution of erections and ejaculations and a reduction in sperm count.
II. The Law.

When a defendant has been convicted of sexual battery as described in section 794.011(FN1) the sentencing court may in its discretion sentence the defendant to be treated with MPA, more commonly known as “chemical castration,” according to a schedule of administration monitored by the Department of Corrections.(FN2) When the defendant has been convicted of sexual battery as described in section 794.011 and has a prior conviction of sexual battery under section 794.011, the sentencing court must sentence the defendant to such treatment with MPA.(FN3) A “prior conviction” in this sense means a conviction for which sentence was imposed separately prior to the imposition of the sentence for the current offense and which was sentenced separately from any other conviction that is to be counted as a prior conviction under section 794.0235.(FN4)

If the court sentences a defendant to be treated with MPA, the penalty may not be imposed in lieu of, or reduce, any other penalty prescribed under section 794.011. However, in lieu of treatment with MPA, the court may order the defendant to undergo physical castration upon written motion by the defendant providing the defendant’s intelligent, knowing, and voluntary consent to physical castration as an alternative penalty.(FN5) An order of the court sentencing a defendant to MPA treatment under section 794.0235(1) “shall” be contingent upon a determination by a court-appointed medical expert that the defendant is an appropriate candidate for treatment. There is a mandatory requirement that such determination be made not later than 60 days from the imposition of sentence.(FN6)

Notwithstanding the statutory maximum periods of incarceration as provided in section 775.082, an order of the court sentencing a defendant to MPA treatment must specify the duration of treatment for a specific term of years, or in the discretion of the court, up to the life of the defendant.(FN7) In all cases involving defendants sentenced to a period of incarceration, the administration of treatment with MPA is required to commence not later than one week prior to the defendant’s release from prison or other institution.(FN8) The Department of Corrections is required to provide the services necessary to administer MPA treatment, but section 794.0235 does not require the continued administration of MPA treatment when it is not medically appropriate.(FN9) If a defendant whom the court has sentenced to be treated with MPA fails or refuses to either appear as required by the Department of Corrections for purposes of administering the MPA or allow the administration of MPA, the defendant is guilty of a felony of the second degree, punishable as provided in section 775.082, section 775.083, or section 775.084.(FN10)

Generally, the trial court is obligated to impose the requirement of chemical castration and set the duration of MPA treatment at sentencing, and may not reserve on that issue after imposition of sentence.

Where chemical castration is mandatory pursuant to section 794.0235(1)(b) because the defendant has a prior conviction for sexual battery, the failure to impose chemical castration would render the sentence incomplete, rather than illegal, and the sentencing court would be able to correct the sentence within 60 days of the original sentencing pursuant to Fla. R. Crim. P. 3.800(c) to include this requirement. Such a correction is permissible because, where a trial court fails to impose a mandatory penalty at the original sentence, double jeopardy principles are not offended where the trial court subsequently corrects the sentence by imposing the omitted mandatory sanction.

Where the imposition of chemical castration pursuant to section 794.0235(1)(a) is discretionary because the defendant does not have a prior conviction for sexual battery, however, the failure to impose it would not render the sentence illegal or incomplete, and the subsequent addition of this sanction would be an illegal increase in punishment.(FN11)

An example of the limits of judicial discretion in this matter where the defendant does not have a prior conviction for sexual battery is the case of Phu Tran, in which the trial court ordered MPA treatment at sentencing, reserved ruling on the duration of treatment pending an evaluation from a court-appointed expert. Approximately four months later, the court held a hearing at which a psychiatrist testified that Tran was a candidate for MPA injections. The doctor testified that she believed Tran should be given MPA indefinitely. After listening to the testimony, hearing argument, and consulting materials provided both by the state and the defense, the trial court ordered that MPA be administered for five years after Tran’s release from prison. Tran appealed.(FN12)

The Fourth District Court of Appeal held that, as a matter of statutory construction, a sentence to administration of MPA under Sec. 794.0235 after imposition of sentence is not remedial treatment but does constitute punishment; the trial court could not “reserve ruling” on that issue pending the outcome of the psychiatrist’s determination of whether Tran was an “appropriate candidate” for treatment. By failing to specify a duration of treatment, the trial court’s imposition of MPA treatment at sentencing did not satisfy the mandatory requirements of the MPA statute and was not a valid portion of Tran’s sentence. Once Tran began serving his sentence, the trial court’s subsequent order of MPA injections for a period of five years violated double jeopardy principles because it amounted to a more onerous punishment.(FN13)

Although the trial court in Tran wanted to hear from the expert regarding the defendant’s being a candidate for receiving MPA, the statute does not require expert evidence as to the duration of MPA. Under the statute the duration appears to be within the trial court’s discretion. The duration must be ordered at sentencing, apparently unguided by the presentation of any expert evidence on the appropriateness of MPA for the particular defendant. However, whatever duration is chosen, the sixty-day period for determination that the defendant is an appropriate candidate for MPA coincides with the sixty days in which a trial court has discretion to mitigate a sentence under Fla. R. Crim. P. 3.800(c). Thus, should the court determine either that the defendant is not an appropriate candidate or conclude that the original term ordered is excessive, the court has the opportunity to adjust the sentence during that period. The rule of Tran is therefore, that the trial court may not reserve on the issue of duration, and that the subsequent imposition of a requirement for MPA injections for a set duration after the imposition of sentence is an illegal increase in the defendant’s sentence and constitutes a violation of the constitutional prohibition against double jeopardy.(FN14)

III. Recommended Procedures Where Chemical Castration Is Sought.

A significant part of the problems surrounding attempts to impose chemical castration on sexual batterers arise from the failure on the part of prosecutors to understand the requirements of section 794.0235, or anticipate its application in a given case. Prosecutors (and courts) also generally lack a set of procedures to be followed when dealing with this issue.

The appropriate procedure for prosecutors where the State is considering chemical castration of a defendant convicted of sexual battery would be to set off sentencing until the defendant can be evaluated by a court-appointed expert and then, based on the expert’s evaluation and other sentencing factors, make the appropriate sentencing recommendation to the court. The law does not appear to require either pre-trial notice to the defendant or pre-trial evaluation, but it does require that chemical castration, if it is to be imposed, be imposed at the time of sentencing.

Where the defendant qualifies pursuant to statute for chemical castration, the two remaining questions are whether (1) this is an appropriate case for the State to seek it, and (2) a court-appointed medical expert will determine that the defendant is an appropriate candidate for MPA treatment. An evidentiary hearing on the matter of chemical castration is therefore a necessary component of any sentencing hearing unless the defendant knowingly and voluntarily waives any objection to the State’s proposed punishment.

If the nature and extent of the defendant’s depravity demonstrates the type of aggressive sexual appetite that requires suppression for the safety of others, or the conduct of the defendant displays sophisticated and determined planning, preparation, and execution of a plan with the use of guile, deception, threats, intimidation, or even audaciousness that clearly put the victim and others at risk, there is a considerable chance that such a punishment will be deemed appropriate by the court-appointed expert. Even where the defendant will be serving a life sentence, one should not assume that the defendant will be forever confined to prison, nor should one overlook the fact that the defendant could pose a risk to other persons he encounters in prison in making a recommendation to the court.

It should be assumed in most cases that where the court-appointed expert has determined that the defendant is a suitable candidate for chemical castration and recommends such treatment, the defense will seek an evaluation by their own expert, just as is the process with sentencing issues touching upon the mental or physical health of the defendant, and neither the prosecutor nor the sentencing court should assume that the process will be quick.
__________

1. “Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose. Sec. 794.011(1)(h), F.S.

2. Sec. 794.0235(1)(a), F.S.

3. Sec. 794.0235(1)(b), F.S.

4. Sec. 794.0235(4), F.S.

5. Sec. 794.0235(1), F.S.

6. Jackson v. State, 907 So. 2d 696 (Fla. Dist. Ct. App. 4th Dist. 2005) (statutory directive that defendant receive medical examination within 60 days of imposition of his sentence for sexual offenses in order to determine his suitability for chemical castration, as prerequisite to imposition of sentence of MPA treatment, is mandatory rather than discretionary); Sec. 794.0235(2)(a), F.S.

7. Sec. 794.0235(2)(a), F.S.; see, Houston v. State, 852 So. 2d 425, 428 (Fla. Dist. Ct. App. 5th Dist. 2003) (requirements that trial court appoint a medical expert to opine on whether defendant is an appropriate candidate for chemical castration treatment, and that trial court specify in the sentence the duration of treatment, are mandatory, as to a sentence containing a chemical castration requirement).

8. Sec. 794.0235(2)(b), F.S.

9. Sec. 794.0235(3), F.S.

10. Sec. 794.0235(5), F.S.

11. See, Kittelson v. State, 980 So. 2d 533 (Fla. Dist. Ct. App. 5th Dist. 2008) (failure at initial sentence to impose restitution as part of sentence resulted in incomplete sentence that was subject to timely modification within 60 days of sentencing); Fields v. State, 968 So. 2d 1032 (Fla. Dist. Ct. App. 5th Dist. 2007 (trial court’s order subjecting defendant to electronic monitoring 40 days after court initially modified probation did not violate double jeopardy because electronic monitoring was mandatory for designated sex offenders whose probation was modified or revoked); State v. Sanderson, 625 So. 2d 471 (Fla. 1993) (restitution is mandated by statute and failure to impose restitution renders a sentence incomplete and subject to modification within 60 days); House v. State, 127 Fla. 145, 172 So. 734 (Fla. 1937) (judgment and sentence that defendant be imprisoned with no adjudication of his guilt was incomplete, and jurisdiction to render a completed judgment and sentence in the cause continued until the function was performed).

12. Tran v. State, 965 So. 2d 226 (Fla. Dist. Ct. App. 4th Dist. 2007).

13. Tran v. State, 965 So. 2d 226 (Fla. Dist. Ct. App. 4th Dist. 2007).

14. Tran v. State, 965 So. 2d 226 (Fla. Dist. Ct. App. 4th Dist. 2007).

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Written by Hon. William Burgess

August 3, 2008 at 4:18 pm

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