Castración de delincuentes sexuales - Es éticamente admisible?

El consejo de Europa (Europarat), concretamente su Comisión anti-tortura, amonestó a Alemania -y a la República checa- por un tema que, probablemente, en Alemania es poco conocido y nos sorprende: el de la castración física de delincuentes (Anti-torture Committee publishes report on Germany), en los siguientes términos:

"The CPT report also notes that surgical castration is applied in a few German Länder in rare, isolated cases. The Committee expresses its fundamental objections to the use of this practice as a means of treatment of sexual offenders and recommends that its application be discontinued. In their response, the German authorities state that they are currently reviewing the matter".

Pueden leer el reporte completo aquí En la letra G se halla en capítulo "The use of surgical castration in the context of treatment of sexual offenders" (lo citó al final de este artículo).

La ley alemana sobre castración voluntaria de 1969, permite la castración, a través de la cirugía, de condenados por delitos sexuales. Previamente información detallada acerca de las consecuencias de esta intervención. Por supuesto, todo por escrito (para constancia) y tienen que ser mayores de 25 anos.

En Alemania, la cantidad de "castrados" es muy baja (el Consejo de Europa habla de dos el 2010), lo que, evidentemente, no puede ser una excusa para justficarla. El Consejo hace ver que es posible que algunos delincuentes piensen que esta es la única manera de evitar pasar el resto de sus días en prisión, de manera que la presión, en este sentido, puede ser muy grande.

El Consejo de Europa sugiere su reemplazo por la llamada castración química (a través de medicamentos, como en Polonia).

En su respuesta, el gobierno federal cita un estudio de 1997, en que se comprueba que, la cuota de reincidencia es muy baja en el caso de la castración quirúrgica: entre 1970 y 1980, de un 3%. En un grupo de 53 personas no operadas, la reincidencia llegó a cerca del 50%.

Un interesante tema ético para pensar y opinar el fin de semana.

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G. The use of surgical castration in the context of treatment of sexual offenders

140. Germany is one of the very few countries in Europe, where orchiectomy (“surgical castration”) may be applied in the context of treating of sexual offenders. In the course of the visit, the delegation gathered information on this subject; in particular, it had consultations with representatives of the Medical Chamber of Berlin and examined the individual file of a detained person who had undergone surgical castration in Berlin[91]. Moreover, during its visit to Rheine Psychiatric Hospital[92], it interviewed a patient who had been surgically castrated some ten years before.

141. The legal requirements for the application of surgical castration are set out in the (federal) Law on Voluntary Castration and Other Methods of Treatment of 1969 (hereinafter: “Law on Voluntary Castration”)[93]. According to Sections 2 and 3 of the aforementioned law, a person may be the subject of surgical castration – at his own request – if:

(a) the intervention is indicated, in the light of the latest findings of medical science, in order to prevent, cure or alleviate severe illness, mental disorder or suffering which are related to an abnormal sex drive, or

(b) a person displays an abnormal sex drive, which, on account of his personality and past life, gives reason to suspect that he will commit one or more criminal offences enumerated in the law (in particular, murder, manslaughter, rape, sexual abuse of children, severe bodily injury, or exhibitionism) and that castration is indicated in the light of the latest findings of medical science, in order to counter that risk and thus to support the person concerned in managing his life.

In both above-mentioned cases, the following additional criteria must be met:

· before giving his consent, the person concerned must be informed about the reasons, implications and side effects of the castration as well as other treatment possibilities;

· minimum age of 25 years;

· the castration will not lead to physical or psychological adverse effects which are disproportionate to the aspired aim of the intervention;

· medical examination and positive evaluation by an expert commission (Gutachterstelle) of the medical chamber of the respective Land;

· approval of the guardianship court (applicable only when the person concerned is not able to give a valid consent).

142. The procedure for processing requests for surgical castration by the expert commission of the relevant medical chamber is regulated by Länder legislation. For Berlin, the (Länder) Law on the Expert Commission for the Voluntary Castration and Other Treatment Methods[94] (dated 29 January 1971) stipulates the following:

· the procedures can only be initiated at the request of the person concerned;

· the expert commission must be composed of two doctors (including one psychiatrist) and a lawyer with the qualification of a judge;

· the commission must carry out a medical examination of the person concerned and consult and analyse all relevant judicial and administrative files;

· subsequently, the commission must provide the person concerned with all the relevant information (so that he is placed in the position to give a valid (“informed”) consent);

· in the event of the person concerned being deprived of his liberty (i.e. prison, forensic psychiatric hospital, preventive detention), he must be informed that surgical castration does not entail entitlement to early release;

· the person concerned must also be advised to undergo medical checks after the intervention;

· the spouse of the person concerned must be consulted, unless the latter is opposed to it or such a consultation appears to be inappropriate (“according to the individual circumstances”);

· the person concerned must give his consent by signing a statement to this effect;

· the expert commission decides by majority; a positive decision is valid for one year; if the castration is not performed within one year, the authorisation can be renewed once for another year (upon request).

143. From the consultations with the Chairperson (psychiatrist) of the expert commission and legal staff of the Medical Chamber of Berlin and the examination of an individual case file, it would appear that applications for surgical castration were carried out in accordance with the above-mentioned formal requirements. Although not required by law, the expert commission only approved requests for surgical castration if the person concerned had previously undergone other treatment programmes. Further, applicants were always assisted by a lawyer.

144.     The CPT acknowledges that, in the light of the information gathered by its delegation, resort to surgical castration appears to be quite rare, not only in Berlin but throughout Germany. According to unofficial statistics available to the Committee, during the last ten years, the total number of surgical castrations of sexual offenders in Germany has been fewer than five per year, and in many Länder no person had been subjected to surgical castration during the same period. Moreover, in Berlin, more than half of the applications which had been submitted since 2001 (five out of nine) had been rejected by the expert commission, and no application had been submitted to the expert commission during the past two years.

145. Notwithstanding this, the CPT must express its fundamental objections to the use of surgical castration as a means of treatment of sexual offenders.

Firstly, such an intervention has irreversible physical effects; it removes a person’s ability to procreate and may have serious physical and mental consequences.

Secondly, surgical castration is not in conformity with recognised international standards, and more specifically, is not mentioned in the authoritative “Standards of Care for the Treatment of Adult Sexual Offenders” drawn up by the International Association for the Treatment of Sexual Offenders (IATSO). As a matter of fact, new methods of treatment have been developed since the adoption of the Law on Voluntary Castration (in particular, anti-androgens and LHRH[95] analogs with reversible effects as well as various methods of psychotherapy).

Thirdly, there is no guarantee that the result sought (i.e. lowering of the testosterone level) is lasting. As regards re-offending rates, the presumed positive effects are not based on sound scientific evaluation[96]. In any event, the legitimate goal of lowering re-offending rates must be counterbalanced by ethical considerations linked to the fundamental rights of an individual.

Fourthly, given the context in which the intervention is offered, it is questionable whether consent to the option of surgical castration will always be truly free and informed. A situation can easily arise whereby patients or prisoners acquiesce rather than consent, believing that it is the only available option to them to avoid indefinite confinement.

To sum up, surgical castration is a mutilating, irreversible intervention and cannot be considered as a medical necessity in the context of the treatment of sexual offenders. In the CPT’s view, surgical castration of detained sexual offenders could easily be considered as amounting to degrading treatment.

Therefore, the Committee recommends that immediate steps be taken by the relevant authorities to discontinue in all German Länder the application of surgical castration in the context of treatment of sexual offenders. The relevant legal provisions should be amended accordingly.