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The Constitutional Debates of the Treatment with Medication for Sexual Drive(Chemical Castration)

  • Public Land Law Review
  • Abbr : KPLLR
  • 2012, 57(), pp.403-424
  • Publisher : Korean Public Land Law Association
  • Research Area : Social Science > Law

Soon Chul Huh 1

1경남대학교

Accredited

ABSTRACT

「The Treatment with Medication for Sex Offenders(Chemical Castration) Act」provides that any person with paraphilia guilty of a conviction of any sexual offense specified in the Act, where the victim has not attained 16 years of age, may undergo treatment with medication for sexual drive(chemical castration) by an order of a court. Under the Act, there are three different treatments, which are an order of a court to the accused, to the inmate and to the parolee. Meanwhile, the Act requires three prerequisites to be met. First, the treatment must be a medically well-known treatment for restraining or decreasing abnormally excessive sexual drives or desires. Second, the treatment must not result in any excessive bodily side effects. Third, the treatment must be undergone by medically well-known ways. However, with regard to the second requisite, it is not easy to determine whether the treatment causes any bodily ‘excessive’ side effects to the patient. Because all kinds of medications cause side effects to some extent, it ends up with the problem of proportionality. However, the constitutional debates of the treatment are as follows; (1) the treatment has the legal characters of both security measure and medical treatment (2) among the treatments, an order of a court to ‘the accused’ and an order of a court to ‘the parolee’ limit the right to self-determination of them since the orders need no prior consents from them (3) the treatment limits the right to refuse medical treatment derived from the self-determination right of the patient (4) an order of a court to ‘the accused’ and an order of a court to ‘the parolee’ limit the right to bodily integrity because the orders need no prior consents from them (5) the treatment seems not to violate the rule against double jeopardy as long as the legal characters of the treatment are regarded as a criminal punishment (6) it seems exceedingly likely that there would be no equal protection challenges even if almost all of treatments were undergone to male offenders because it reasonably relates to its goal (7) since the Act guarantees the right to access to an administrative appeals commission, it is likely that the infringement of the right to access to the court does not occur. Lastly, regarding the principle against over-inclusive, the treatment seems difficult to pass the second requirement, which needs the appropriateness of the methods. Because the treatment does not render the patient impotent, not only it seems inappropriate to achieve the goal of prevention of recidivism but also it may cause the excessive side effects to the patient.

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