Renee Sorrentino, MD

1
Ethical Treatment of Sex Offenders A Hypocrites
Oath
Renee Sorrentino, MD Institute for Sexual
Wellness Instructor, Harvard Medical
School www.instituteforsexualwellness.org
2
Survey of Audience

• Treating sex offenders is unethical under the
  standard professional guidelines for clinicians
• Treating sex offenders is ethical under the
  standard professional guidelines for clinicians

3
Outline

1. Review of the Ethical Principles of Medicine
2. Beneficence
3. Confidentiality and privilege
4. Informed consent
5. Involuntary treatment
6. Right to refuse treatment
7. Application of Ethical Principles to Sex
   Offenders
8. Case Studies
9. Conclusion

4
Code of Medical Ethics

• Beneficence
• Welfare of the patient is paramount
• Non-maleficence
• Avoiding harm
• Respect for autonomy
• Informed consent
• Justice
• Patient is treated fairly, equitably, and in
  accordance with his rights and entitlement

5
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.

6

• 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
7
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.

8
Exceptions to Confidentiality

• Concern for the safety of other specific persons
• Legal
• Abuse (child or elder)
• Therapeutic privilege

9
Confidentiality

• Respect for the individuals right of privacy
  and the maintenance of confidentiality are major
  concernsthe psychiatrist maintains
  confidentiality to the extent possible given the
  legal context.
• Forensic evaluations are exceptions to the rules
  of confidentiality.
• AAPL Ethical Guidelines

10
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.

11
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.

12
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.

13
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).

14
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.

15
Case Confidentiality

• Mr. Fathers 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.
16
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.
17
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

18
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

19
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).

20
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. Ive been asking for it for the
  past 6 months.

21
Case Informed Consent

• You ask Mr. Release why he refused Lupron in the
  community. He states, I wouldnt take it if I
  didnt 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.

22
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.
23
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. Its not
  ethical of you to deprive him of his right to be
  a free man.
• You agree with the attorneys statement that Mr.
  Release release is influenced by his decision to
  accept Lupron.

24
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.
25
Chemical Castration
26
Voluntary Treatment

• Based on respect for individuals autonomy
• Founded in constitutional rights
• Individuals can choose to pursue or reject
  treatment

27
History of Chemical Castration

• By
• Sara Moore, M.A.
• Massachusetts School of Professional Psychology

28
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.

29
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.

30
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.

31
Social Control
32
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 1960s, German physicians prescribed
  antiandrogens to limit male paraphilic behavior.

33
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.

34
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

35
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 surgical castration

36
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.

37
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 offenders 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

38
Ethical Considerations

• 4) Whether or not psychological treatment is
  required.
• Seven of the nine states do not require
  additional therapy other than some form of
  castration.
• 5) The specific length of chemical treatment
  required by the 8 states.
• 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.

39
Forensic Implications

• Infringement on the sexual offenders First
  Amendment right
• Violation of the Eighth Amendment
• A challenge to the Fourteen Amendment

40
The First Amendment

• The First Amendment protects a persons 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 offenders
  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.

41
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?

42
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.

43
The Fourteenth Amendment

• Fourteenth Amendment protects the individuals
  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 inmates
  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.

44
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 inmates 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 for the government to accomplish its goal.

45
References

• Eunuchs Indias 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, 314,
  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.

46
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

47
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.

48
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.

49
Case Involuntary Treatment

• You routinely provide letters to the Probation
  Officer that Mr. Down is compliant with
  treatment.
• 3 months later, Mr. Downs 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.

50
Case Involuntary Treatment

• Was your treatment of Mr. Down ethical?

51
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 courts approval.
• If you did not agree with sex offender
  treatments, you should have informed the courts

52
Right to Refuse Treatment

• The right of a patient to refuse treatment is
  based upon five constitutional protections
• 8th amendments protection against cruel and
  unusual punishment
• 1st amendments protection of free speech
• the 1st amendments protection of freedom of
  religion
• the more broadly interpreted right to privacy
• the 14th amendments protection of liberty (the
  right to be free from unjustified intrusions on
  personal security)

53
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

54
Challenges to Treatment Ethics

• Treatment is offered as a component of punishment
• DOC programs, probation/parole conditions
• Beneficence is incompatible with punishment

55
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. Lees request was denied by the court.

56
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 offenders right to
  self-determination?
• Is it ethical to force patients to adopt specific
  attitudes, values, and behaviors determined
  largely by the therapist?

57
Case Right to Refuse Treatment

• Is it ethical to force patients to adopt specific
  attitudes, values, and behaviors determined
  largely by the therapist?

• Mr. Lees 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

58
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.

59
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 Klinefelters
  syndrome (genetic disorder), pedophilia and
  sexual sadism.
• He requested data about the efficacy of Lupron in
  Eskimos with Klinefelters syndrome and
  paraphilias.
• You tell Mr. Eskimo that there is no data for
  this patient population.

60
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.

61
Case Surgical Castration

• Mr. Cutit is a 30 yo man who is on parole, living
  in the community.
• Mr. Cutit served 10 years for Rape of a Child.
• Mr. Cutit has been attending a sex offender
  program since release.
• Mr. Cutit has been a model patient.
• Despite Mr. Cutits participation in treatment,
  he still experiences recurrent pedophilic urges.

62
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 dont want to take
  a medication.

63
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.

64
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
65
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.

66
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.

67
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

68
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.

69
Case Chemical Castration

• In Paoli v. Gailey (MD)
• DOC were told that they could not refuse to give
  MPA to an inmate who requested the treatment and
  was medically appropriate
• McDonald v. Warden State Prison (CT)
• 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.

70
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.

71
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.

72
Case Off Label Use

• Mr. Gee looks worried and states Im 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?

73
Are Ethical Codes Necessary?
74
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

75
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 individuals condition)

76
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

77
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 whats best for you.

78
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

79
Evidence Based Arguments

• Is compliance affected by informed consent?
• Are voluntary patients more likely to comply with
  treatment compared with involuntary patients?

80
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?

81
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.

82
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