Skip to main content
×
Home

Refusing to Treat Sexual Dysfunction in Sex Offenders

Abstract:
Abstract:

This article examines one kind of conscientious refusal: the refusal of healthcare professionals to treat sexual dysfunction in individuals with a history of sexual offending. According to what I call the orthodoxy, such refusal is invariably impermissible, whereas at least one other kind of conscientious refusal—refusal to offer abortion services—is not. I seek to put pressure on the orthodoxy by (1) motivating the view that either both kinds of conscientious refusal are permissible or neither is, and (2) critiquing two attempts to buttress it.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      Refusing to Treat Sexual Dysfunction in Sex Offenders
      Available formats
      ×
      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your Dropbox account. Find out more about sending content to Dropbox.

      Refusing to Treat Sexual Dysfunction in Sex Offenders
      Available formats
      ×
      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your Google Drive account. Find out more about sending content to Google Drive.

      Refusing to Treat Sexual Dysfunction in Sex Offenders
      Available formats
      ×
Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
Hide All

Notes

1. Some of the reasoning behind the introduction of the policy is described in Phillips EA, Rajender A, Douglas T, Brandon AF, Munarriz R. Sex offenders seeking treatment for sexual dysfunction—ethics, medicine, and the law. The Journal of Sexual Medicine 2015;12(7):15911600.

2. See note 1, Phillips et al. 2015 at 1594–5, 1597.

3. There is also some evidence that sildenafil (Viagra) and other nontestosterone treatments for sexual dysfunction can increase libido. See, for discussion, note 1, Phillips et al. 2015, at 1595.

4. Maletzky BM, Tolan A, McFarland B. The Oregon Depo-Provera program: A five-year follow-up. Sexual Abuse: A Journal of Research and Treatment 2006;18(3):303–16.

5. See note 1, Phillips et al. 2015, at 1595.

6. See note 1, Phillips et al. 2015, at 1596.

7. Pinhas-Hamiel O, Modan-Moses D, Herman-Raz M, Reichman B. Obesity in girls and penetrative sexual abuse in childhood. Acta Paediatrica 2009;98:144–7; Canton-Cortes D, Cortes MR, Canton J. Child sexual abuse, attachment style, and depression: The role of the characteristics of abuse. Journal of Interpersonal Violence 2015;30:420–36.

8. Jones JS, Rossman L, Wynn BN, Ostovar H. Assailants’ sexual dysfunction during rape: Prevalence and relationship to genital trauma in female patients. The Journal of Emergency Medicine 2010;38:529–35.

9. Actuarial tools for the prediction of sexual recidivism do already exist, with the STATIC-99/R being the most widely used of these. See Hanson RK, Harris AJR, Helmus L, Thornton D. High-risk sex offenders may not be high risk forever. Journal of Interpersonal Violence 2014;29:2792–813.

10. Brock D. Conscientious refusal by physicians and pharmacists: Who is obligated to do what, and why?. Theoretical Medicine and Bioethics 2008;29:187200; Wicclair M. Conscientious Objection in Health Care: An Ethical Analysis. Cambridge: Cambridge University Press; 2011. See also: Cantor J, Baum K. The limits of conscientious objection—may pharmacists refuse to fill prescriptions for emergency contraception? New England Journal of Medicine 2004;351:2008–12.

11. Pope TM. Legal briefing: Conscience clauses and conscientious refusal. The Journal of Clinical Ethics 2009;21(2):163–76.

12. Kolata G. Inmate fears death because prison won’t finance transplant. The New York Times February 5, 1994; available at http://www.nytimes.com/1994/02/05/us/inmate-fears-death-because-prison-won-t-finance-transplant.html (last accessed 10 May 2016).

13. Moreover, even those who reject Caplan’s view and argue for the exclusion of criminal offenders from certain forms of medical treatment have often held that this exclusion should be implemented by the state, not individual (groups of) healthcare professionals. They have not seen such exclusion as a matter for individual conscientious refusal. See, for example, Schneiderman LJ, Jecker NS. Should a criminal receive a heart transplant? Medical justice vs. societal justice. Theoretical Medicine 1996;17(1):3344 , at 34. I do suspect that many healthcare professionals and ethicists might wish to allow for the refusal of testosterone treatment in cases in which, through no effort on his or her part, a urologist becomes aware that a patient has a history of sexual offending. However, I suspect that, even among those who endorse this view, the dominant view would be that the urologist should not actively enquire into such a history, but should treat without seeking out this forensic knowledge.

14. See, for the classic statement of this view, Aquinas T. Summa Theologica II-II, Q. 64, art. 7, “Of killing.” In: Baumgarth WP, Regan RJ, eds. On Law, Morality, and Politics. Indianapolis/Cambridge: Hackett Publishing Co; 1988:226–7.

15. See note 10, Brock 2008; Wicclair 2011; Cantor, Baum 2004.

16. See, for example, note 10, Brock 2008.

17. See, for example, Bayles MD. A problem of clean hands, refusal to provide professional services. Social Theory and Practice 1979;5(2):165–81; Minerva F. Conscientious objection, complicity in wrongdoing, and a not-so-moderate approach. Cambridge Quarterly of Health Care Ethics 2017;26(1); Devolder K. Complicity after the fact: Japan’s wartime medical atrocities. Presentation given at Analytic Bioethics in Europe Conference, Ghent University, Ghent, Belgium, May 28–29, 2014.

18. See, for example, World Medical Association Declaration of Tokyo – Guidelines for Physicians Concerning Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Relation to Detention and Imprisonment. World Medical Association 1975, revised in 2005 and 2006; available at http://www.wma.net/en/30publications/10policies/c18/ (last accessed 22 Feb 2016), which specifies that physicians must not “participate in the practice of torture or other forms of cruel, inhuman or degrading procedures,” “provide any premises, instruments, substances or knowledge to facilitate the practice of torture,” or “be present during any procedure during which torture or any other forms of cruel, inhuman or degrading treatment is used or threatened,” See also Position Statement on Identification of Abuse and Misuse of Psychiatry. World Psychiatric Association 1998, Principle 5 (“Psychiatrists shall not . . . use medical knowledge for interrogation, persuasion or torture”); available at http://www.wpanet.org/uploads/Latest_News/News_from_WPA_Sections/attach%2003.pdf (last accessed 22 Feb 2016); and Torture, death penalty and participation by nurses in executions: ICN Position. International Council of Nurses 1998, last revised 2012; available at http://www.icn.ch/images/stories/documents/publications/position_statements/E13_Torture_Death_Penalty_Executions.pdf (last accessed 22 Feb 2016): “nurses should play no voluntary role in any deliberate infliction of physical or mental suffering and should not participate, either directly or indirectly, in the preparation for and the implementation of executions.”

19. Hatch P, Ireland J, Booker C. Royal Children’s Hospital doctors refuse to return children to detention. The Age (Melbourne) October 11, 2005; available at http://www.theage.com.au/victoria/royal-childrens-hospital-doctors-refuse-to-return-children-to-detention-20151010-gk63xm.html (last accessed 25 Feb 2016).

20. See, for this view, Lippert-Rasmussen K. The badness of discrimination. Ethical Theory and Moral Practice 2006;9:167–85; Lippert-Rasmussen K. Born Free and Equal? A Philosophical Inquiry into the Nature of Discrimination. New York: Oxford University Press; 2013. The quoted passage is from Lippert-Rasmussen K. Nothing personal: On statistical discrimination. Journal of Political Philosophy 2007;15(4):385403, at 386.

21. Kahlenberg RD. The Remedy: Class, Race, and Affirmative Action. New York: Basic Books; 1997.

22. See, for a recent definition, note 20, Lippert-Rasmussen, 2007, at 386–9.

23. See especially note 20, Lippert-Rasmussen 2007.

24. See, for example, Wasserman DT. The morality of statistical proof and the risk of mistaken liability. Cardozo Law Review 1991;13:935–76, esp. at 943; Miller D. Principles of Social Justice. Cambridge, MA: Harvard University Press; 1999:168–9.

25. See, for example, Colyvan M, Regan HM, Ferson S. Is it a crime to belong to a reference class? Journal of Political Philosophy 2001;9(2):168–81., at 175–6. For critical discussion of this view, see note 20, Lippert-Rasmussen 2007, at 397–9.

26. See note 24, Wasserman 1991, at 942–3. Walter Sinnott-Armstrong (personal communication, 24 Nov 2015) also suggested to me that the wrongness of testosterone refusal might lie in its failure to give offenders the chance to redeem themselves, though he did not put the point in terms of statistical discrimination.

27. For a recent definition, see Lippert-Rasmussen K. Indirect discrimination is not necessarily unjust. Journal of Practical Ethics 2014;2(2):33–57, at 37–38: “A policy, practice or act is indirectly discriminatory against a certain group if, and only if: 1) it neither explicitly targets nor is intended to disadvantage members of the group (the no-intention condition); 2) it disadvantages members of the group (the disadvantage condition); and 3) the relevant disadvantages are disproportionate (the disproportionality condition).”

28. For an argument that indirect discrimination is not necessarily wrongful, see note 27, Lippert-Rasmussen 2014.

29. See, for example, Harris J. QALYfying the value of life. Journal of Medical Ethics 1987;13(3):117–23, esp. at 119; Harris J. It’s not NICE to discriminate. Journal of Medical Ethics 2005;31(7):373–75.

I would like to thank Mary Walker and audiences as the University of Oxford and Foundation Brocher, Geneva, for their comments on earlier versions of this paper. I thank the Uehiro Foundation on Ethics and Education and the Wellcome Trust (grant number 100705/Z/12/Z) for their funding, and Areti Theofilopoulou for her research assistance.

Recommend this journal

Email your librarian or administrator to recommend adding this journal to your organisation's collection.

Cambridge Quarterly of Healthcare Ethics
  • ISSN: 0963-1801
  • EISSN: 1469-2147
  • URL: /core/journals/cambridge-quarterly-of-healthcare-ethics
Please enter your name
Please enter a valid email address
Who would you like to send this to? *
×

Keywords:

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 49
Total number of PDF views: 153 *
Loading metrics...

Abstract views

Total abstract views: 244 *
Loading metrics...

* Views captured on Cambridge Core between 9th December 2016 - 17th November 2017. This data will be updated every 24 hours.