key: cord-0071224-8hem8yby
authors: Forsberg, Lisa
title: Anti-libidinal Interventions and Human Rights
date: 2021-02-10
journal: nan
DOI: 10.1093/hrlr/ngab001
sha: 50252f684ca0996efb6ef3d90eead802cd867554
doc_id: 71224
cord_uid: 8hem8yby

Anti-libidinal interventions (ALIs) are used in several jurisdictions to reduce male sex offenders’ libido. One common objection to these interventions holds that when offenders are either required to undergo them or offered to undergo them as an alternative to continued incarceration, ALIs violate recipients’ human rights. In this article, I examine this objection, which I call the human rights objection to ALIs, in relation to the European Convention on Human Rights (ECHR). Specifically, I examine the objection to ALIs in relation to Articles 3, 8 and 12 ECHR, which are the rights proponents of the human rights objection have identified as most relevant. I argue that the human rights objection in its current form fails to establish that ALIs violate recipients’ ECHR rights in respect of all these Articles.

arrangements for their provision vary considerably across jurisdictions: 4 ALIs may be provided as part of treatment programmes offered to incarcerated offenders either on a voluntary basis or as a condition of parole, 5 under mental health legislation (with or without recipient consent), 6 or under dedicated ' ALI statutes' that explicitly provide for, and place conditions on, their use. 7 ALIs remain controversial, however, especially when offenders are either compelled to undergo the intervention or offered it as an alternative to (continued) incarceration. One common objection holds that, when used in either of these ways, ALIs violate recipients' human rights. Call this the human rights objection to ALIs (HRO). Although common, the HRO is rarely explicitly or precisely stated. This makes the nature of the objection unclear. It is hard to know, for example, whether the human rights allegedly violated by ALIs are moral or legal, whether all or just some ALIs are incompatible with human rights and what features of ALIs or the way in which they are provided cause them to violate recipients' human rights, when they do so.

Clarifying the HRO is important for at least two reasons. First, ALIs are already used in many jurisdictions, under a variety of legal arrangements, and other jurisdictions are considering their use. 8 Second, we may have reason to expect biomedical interventions that target aggression, impulsiveness and other risk factors for criminal conduct to become more common, as we learn more about how such dispositions may be controlled 9 and given the limitations and costliness of traditional ways of dealing with offenders. The extent to which such interventions are compatible with human rights seems a prima facie important factor to consider when determining the conditions under which the state could permissibly offer or require offenders to undergo such interventions. 10 the permissibility of biomedical interventions used for crime-prevention purposes more generally.

This article aims to clarify when, if ever, non-consensual ALIs provided to sex offenders may violate recipients' human rights, and, if they do, the features of ALI provision by virtue of which they do so, with reference to the legal human rights enshrined in the European Convention on Human Rights (ECHR). I focus on non-consensual ALIs because proponents of the HRO generally seem to take the absence of valid recipient consent to be a human rights-violating feature of ALIs, 11 and because non-consensual ALIs seem the hardest to defend. If non-consensual ALIs can be defended from the HRO, then, consensual ALIs seem to stand a good chance of being defended from it, too. But my purpose here is not to defend ALIs, or particular uses of it. Rather, it is to clarify the circumstances in which non-consensual ALIs are incompatible with the ECHR.

The focus on the ECHR may require further explanation and justification. Philosophical accounts of human rights have tended, when engaging with international human rights law or the practice of human rights, to focus on the Universal Declaration of Human Rights (UDHR). 12 But we have reason to focus on the ECHR instead. First, the UDHR is not legally binding. However, the rights in the UDHR are closely mirrored in the ECHR, which is legally binding on the Contracting Parties. Certainly, this is true of all the rights in the ECHR that we will engage with here. 13 Considering the ECHR, 11 Most HRO proponents appear to assume that offender consent makes a difference to whether ALIs violate recipients' human rights. See Harrison here shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the then, involves engaging with rights that are prima facie similar to those enshrined in the UDHR, but in a form that has legally binding character. 14 Second, a considerable body of case law further specifies the ECHR rights that bear on the provision of medical interventions such as ALIs. 15 Third, some of the most well-developed (legal) accounts of the HRO invoke the ECHR, arguing that (at least non-consensual) ALIs may breach it. 16 Therefore, versions of the HRO based on the ECHR seem to represent the most well-developed version of the objection. The legal rights protected by the ECHR articles invoked by HRO proponents also mirror legal rights that have been taken as important (and potentially threatened by biomedical interventions used for crime-prevention) in other jurisdictions (such as the United States) and moral rights. 17 The HRO and responses to it therefore seem to be generalisable beyond the ECHR. I begin by attempting to specify the HRO to ALIs (section 1). I then proceed to examine how the HRO fares with reference to the ECHR, examining in turn Article 3 (section 2), Article 8 (section 3) and Article 12 (section 4)-the rights proponents prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others' . Article 16 UDHR holds that '[m]en and women of full age, without any limitation due to race, nationality or religion, have the right to marry and found a family' , and Article 12 ECHR holds that '[m]en and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right' . Article 9 UDHR holds that '[e]veryone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance' , and Article 9(1) ECHR holds that '[e]veryone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance' . 14 Prima facie similar because the substance of the ECHR goes beyond the articles, since the ECtHR is responsible for maintaining the Convention as a 'living instrument' , see, for example, o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment' , including non-consensual 'medical or scientific experimentation' . Article 7 ICCPR seems relevantly similar to the right not to be subject to torture or inhuman or degrading treatment prescribed by Article 3 ECHR. However, the notional protection of the ICCPR is procedurally and substantively less extensive than the ECHR. Procedurally, not all states parties to the ICCPR have signed and ratified its First Optional Protocol providing an individual complaint mechanism for violations of the ICCPR rights, and several states have acted to limit the jurisdiction of the UN Human Rights Committee (HRC) to hear individual ICCPR complaints. This includes many parties to the ECHR who do not recognise the jurisdiction of the HRC for matters within the scope of the ECHR. This is important for our purposes, because as a consequence, there is a lack of jurisprudence of the HRC on the human rights objection to ALIs or jurisprudence from which useful analogies may be drawn. Substantively, we will see that more grounds exist on which to advance the human rights objection to ALIs under the ECHR. Where there is overlap between the ICCPR and the ECHR rights, I would suggest that the arguments advanced in respect of the latter are applicable mutatis mutandis to the former. 16 Some of the most developed accounts of the HRO are found in Harrison and Rainey, 'Morality and Legality in the Use of Antiandrogenic Pharmacotherapy with Sexual Offenders' , supra n 11; Rainey, 'Human Rights and Sexual Offenders' , supra n 11; Harrison and Rainey, 'Suppressing Human Rights?' , supra n 11. 17 See Rosati, supra n 10 at 124. of the HRO typically identify as most relevant to the permissibility of ALIs. 18 I argue that the human rights objection in its current form fails to establish that ALIs violate recipients' ECHR rights in respect of all these articles.

The HRO may seem, to many, intuitively plausible. The history of psychiatry gives us terrifying examples of non-consensual 'treatments' imposed on individuals detained primarily for 'socially deviant' behaviour, and 'chemical castration' has been used in morally reprehensible ways in the past. 19 It is unsurprising, then, that arguments to the effect that ALIs violate human rights have been put forward in academic, 20 policy 21 and popular 22 fora. Although the HRO is rarely properly specified, we get a flavour of what is at issue from some examples of human rights being invoked in objections to ALIs.

Amnesty International stated in reference to the enactment of a law providing for non-consensual ALI provision in Indonesia in 2016 that: 18 The assumption that recipient consent is necessary for human rights-compliant administration of ALIs is perhaps unsurprising. The ECHR treats consent as central in respect of medical interventions more generally, 28 and consent is central in English law's regulation of medical interventions. 29 Moreover, both sides in the debate over the moral permissibility of biomedical crime-preventing interventions such as ALIs have tended to accept (at least implicitly) a consent requirement in respect of such interventions, also when they are used for crime-prevention (rather than therapeutic) purposes. 30 Some HRO proponents go further, objecting not just to non-consensual ALIs, but also to ALIs offered as an alternative to incarceration or condition of parole, arguing that:

If the offender is given the choice between a course of testosterone-reducing medication and a period of incarceration, it is likely that the offender will be coerced into choosing the treatment, on the basis that it is the lesser of two evils. Coerced consent may also occur if the offender is led to believe that participation in a pharmaceutical programme will enhance his chances of parole. 31 In the sections that follow, I will argue, pace those who have defended the HRO, that non-consensual ALIs are likely often to be compliant with the ECHR and that when they are not, it will not generally be for want of offender consent. The HRO as it stands is likely to fail and those who wish to object to the use of ALIs would do better to find a different objection that does not rely on consent.

Let us first consider a version of the HRO according to which non-consensual ALIs violate recipients' human rights under Article 3 ECHR. Article 3 holds that '[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment' and imposes an obligation on member states to protect individuals from such treatment. Unlike many other Convention rights, Article 3 is absolute: 32 'the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct' , 33 and 'it is of the essence of the state's obligation not to subject any person to suffering which contravenes Article 3 that the ends cannot justify the means' . 34 That Article 3 is absolute means that when the article is engaged, nothing-no circumstances, conduct of the victim or grounds, such as public protection-will justify its violation. 35 Interference must reach a minimum level of severity to engage Article 3. Whether this minimum severity threshold has been reached is determined by taking into account characteristics of the intervention (its nature, duration, effects and so forth) and of Preventing Neurointervention"' in Birks and Douglas (eds), Treatment for Crime. Philosophical Essays on Neurointerventions in Criminal Justice (2018) 117. The law does not support the claim that offering ALIs as a condition of parole amounts to coercion vitiating consent tout court; being incarcerated/detained does not per se prevent prisoners from giving effective consent, see Freeman v Home Office [1984] the victim (their health, sex, age, 36 decision-making capacity, 37 etc.). In addition to the nature of the intervention itself, the context in which it takes place is relevant to establishing Article 3 breach. 38 We may think it unlikely that ALIs would reach Article 3's severity threshold. First, their anti-libidinal effects are typically non-permanent and reversible. 39 Second, in contrast with surgical castration, which may exceed the severity threshold, 40 the mode of administration is often relatively non-invasive; ALIs are usually administered as drug regimens or by repeated injection. 41 Third, the European Court of Human Rights (ECtHR) noted in Jalloh v Germany that the Convention does not prohibit forced medical intervention per se, 42 and it is accepted that both treatment and punishment involving some burdens can be imposed on individuals by the state without breaching Article 3. 43 HRO proponents may point out that at least some ALIs interfere with bodily integrity (often repeatedly), and note that Article 3 breach has previously been found also in respect of seemingly non-severe bodily interference, such as a slap in the face of a detainee, due to the context in which the interference takes place (detention). 44 They may also observe that while the main or intended effects of ALIs are non-permanent and reversible, some of their side-effects may not be. If ALIs affect recipients' health negatively, 45 or its administration or side-effects cause feelings of anguish, humiliation, fear or inferiority, 46 the ECtHR might be more likely to find an Article 3 breach. ALIs carry numerous side-effects, some of which are quite serious, including osteoporosis, liver damage, metabolic abnormalities, thrombophlebitis, cardiovascular disease, depression, fatigue, hypersomnia, lethargy and weight gain. 47 Possible side-effects also 49 Moreover, ALIs suppress general sexual functioning and not just criminal sexual conduct and may also affect recipients' personality, inducing symptoms such as fatigue, depressive symptoms or disorders, emotional disturbances, anxiety and aggression reduction. 50 Given this, HRO proponents may argue, at least some ALIs, in some circumstances, may reach the threshold for Article 3 engagement. It may be responded that the ECtHR has previously rejected claims to the effect that an intervention's serious negative side-effects met the severity threshold for Article 3 engagement (in the case of non-consensual neuroleptic drugs). 51 This may suggest that side-effects of ALIs, too, would be unlikely to engage Article 3, unless they were very serious or long term. 52 Moreover, any 'feminising' physical effects may be corrected through surgery. But HRO proponents may again point to the context in which ALIs are likely to be administered (under detention, without consent and so on) and argue that this makes breach more likely. They may also argue that the length of the intervention (including side-effects and effects on general sexual functioning) sets ALIs apart from other interventions accepted as ECHR compliant. ALIs do not 'cure' offenders and may therefore need to continue for long time periods. 53 If it is the permanence (or long lastingness) of the effects (on recipients' sexual function and so on) that causes surgical castration to violate Article 3, then long-term pharmaceutical ALIs may also reach the severity threshold, if they, too, have these effects. But this restricts the scope of the HRO in respect of Article 3 engagement to a subset of ALIs: very long-term or time-unlimited ones with severe effects/side-effects.

another study, undescribed side-effects led some participants to discontinue intramuscular MPA after three to five injections. Lewis et al.'s systematic review of all published studies until 2015 on GnRH agonists in male sex offenders observe that side-effects most commonly reported were 'hot flushes, reduction in testicular volume, weight gain, injection site pain and gynaecomastia, painful erections, reduced body hair and depression' , although they note that 'the exact number of subjects reporting the effects was not always present' , see Moreover, crucially, ALIs may fall outside the scope of Article 3 if they are accepted to be a 'medical necessity' . The leading case here is Herczegfalvy v Austria, which held that the applicant's being administered sedatives and forced fed against his will while detained in psyschiatric hospital did not violate his Article 3 rights since 'the evidence before the court [was] not sufficient to disprove the government's argument that, according to the psychiatric principles generally accepted at the time, medical necessity justified the treatment in issue' . 54 The Court held that 'as a general rule, a measure which is a medical necessity cannot be regarded as inhuman or degrading' , but noted that '[t]he court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist' . 55 Might ALIs qualify as medically necessary? If ALIs were provided to all offenders who had committed a particular criminal offence, without regard for diagnosis (if any) and suitability to receive ALIs, HRO proponents might have a solid case for Article 3 breach (assuming the severity threshold had been reached). 56 Putting blanket provision of this kind to one side, however, it seems that ALIs may qualify as medically necessary. 57 English courts have accepted sex offending as a manifestation of mental disorder 58 and ALIs as treatment for such disorder. 59 Moreover, the Mental Health Act 2007 amended the Mental Health Act 1983 such that the test is merely appropriate treatment being available, rather than treatment being available that 'is likely to alleviate or prevent deterioration in the patient's condition' , as was the requirement prior to the amendments. 60 The ECtHR held in Dvořáček v Czech Republic that sexological treatment (including ALIs) administered during the applicant's detention in a psychiatric hospital did not amount to inhuman and degrading treatment in violation of Article 3, since although the measures undoubtedly caused the applicant discomfort, they were justified by his state of health and his conduct. 61 HRO proponents may object that, given the paucity of evidence of their effectiveness, ALIs cannot plausibly qualify as medically necessary. 62 Interventions have previously failed the Herczegfalvy test for lack of robust evidence of effectiveness. For example, an anti-psychotic medication failed the test on grounds that its benefits were 'decidedly speculative' . 63 The same could perhaps be said of ALIs. But the 'medical necessity' standard may be less demanding than it first appears. In R (on the application of B) v Haddock (Responsible Medical Officer), which considered the medical necessity standard under Article 3, an intervention was found 'convincingly shown' to have been a medical necessity when it was believed by clinicians to be more likely than not to succeed. 64 Moreover, the fact that a responsible body of medical opinion exists, which disputes that a particular intervention is a medical necessity or in patients' best interests does not in and of itself cause the intervention to fail the test. 65 The belief among some clinicians that ALIs are medically necessary (in respect of some offenders), then, might be sufficient for them to be accepted as such, even if clinical opinion is divided and the evidence inconclusive. 66 My claim here, then, is not that ALIs are medically necessary according to some strict standard, but merely that given that the relevant standard is not very demanding, some ALIs may meet it. 67 HRO proponents may counter that ALIs ought not be construed as medically necessary, not just because their effectiveness is limited, but also because their purpose is more appropriately understood as correctional than medical or therapeutic. Some of the quotes in section one above indicate that some HRO proponents conceive of ALIs as correctional rather than medical/therapeutic interventions. 68 We may agree with HRO proponents that ALIs are, at least sometimes, correctional, or a mixture of medical and correctional, interventions. In England and Wales, offenders may receive ALIs (with or without consent) after having been involuntarily committed and treated under mental health legislation as part of criminal sentences, their detention justified on grounds of it being 'necessary ... for the protection of other persons that [they] should receive such treatment' , and the Secretary of State for Justice may restrict clinicians' discretion in respect of decisions regarding leave or release. 69 These features of ALI provision seem 62 to suggest a correctional objective. But if ALIs are correctional interventions, it seems less plausible that their provision is medically necessary. 70 Whether the purpose of ALIs is medical or correctional is relevant to determining what conduct gave rise to the alleged violation under Article 3: 'inhuman or degrading treatment or punishment' . In Dvořáček, the ECtHR emphasises this distinction, considering that, 'the protective sexological treatment imposed on the applicant had been intended to protect him and therefore had not constituted a "punishment" within the meaning of article 3 .... The question examined by the Court was therefore whether the conditions to which he had been subjected had in themselves amounted to "inhuman" or "degrading" treatment'. 71 ALIs may be more likely to be in breach of Article 3 if administered for punitive or correctional (rather than medical/therapeutic) purposes and in the absence of medical supervision, without recipient consent, and if they are administered in a way that humiliates or debases the offender or disproportionate force or restraint is used. 72 It may be that the Court first seeks to establish whether the purpose or character of the intervention is medical or correctional, since this is a relevant factor for the ECtHR in analysing the context in which the alleged violation takes place, 73 and second, it examines whether, in case of interventions with a therapeutic purpose or character, they are in fact medically necessary (employing the Herczegalvy test). If an intervention is accepted as both therapeutic in character or purpose and medically necessary, the 'general rule' established in Herczegalvy applies such that the intervention being regarded as 'inhuman or degrading' is less likely. If the intervention is considered to have a correctional, rather than therapeutic, character or purpose, however, this general rule does not apply and the medical necessity test cannot justify its provision, since Article 3 does not allow for any type of proportionality or necessity analysis that weighs up how necessary a (degrading/inhuman) punishment is to achieve a public aim such as crime-prevention.

If this is the case, however, it seems that HRO proponents may be on stronger ground not arguing for a consent requirement in relation to Article 3, instead maintaining that ALIs should be conceived of as correctional rather than therapeutic interventions and their provision therefore not considered medically necessary. Insisting on a consent requirement seems to involve conceding that ALIs are therapeutic rather than correctional interventions, since it is in respect of the former, and not the latter, that a consent requirement is generally accepted. 74 It may seem, then, that at least in respect of Article 70 The claim here is that it seems to make a consent requirement less plausible. A consent requirement may not be completely implausible, for instance, if ALIs are administered for correctional purposes but only on the condition that they also treat a mental disorder in the offender. Dvořáček, supra n 43 at para 92, 94. 73 In Jalloh, supra n 42 at para 82 the fact that the medical procedure and emetics were administered for the purposes of obtaining evidence and not for therapeutic reasons was held to be relevant, in RS v Hungary, supra n 72, the fact that the catheterisation was not for therapeutic reasons was also considered relevant (para 72), and in Dvořáček: the fact that ALIs were administered for medical reasons was considered relevant (Dvořáček, supra n 43 at 92, 94). 74 We do not typically impose a consent requirement in respect of correctional interventions, see Forsberg and Douglas, supra n 68 at 457.

3, HRO proponents would be better off abandoning their focus on consent. Or that, if they wish to retain their focus on consent, HRO proponents are better off focusing on another Article of the ECHR.

Let us now turn to a version of the HRO according to which non-consensual ALIs violate recipients' human rights under Article 8 ECHR. Article 8(1) holds that '[e]veryone has the right to respect for his private and family life, his home and his correspondence' , and Article 8(2) holds that '[t] here shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others' . 75 A consent requirement seems more plausible in respect of Article 8, since it is accepted as the Convention right that most explicitly and robustly protects personal autonomy, 76 and bodily integrity is generally considered an essential part of or precondition for personal autonomy. 77 In Pretty v United Kingdom, the ECtHR reiterated that 'the concept of 'private life' is a broad term not susceptible to exhaustive definition' but that '[i]t covers the physical and psychological integrity of a person' .' 78 This is in turn generally taken to generate a requirement to seek competent individuals' valid consent before administering interventions interfering with their bodily integrity. 79 ALIs administered to offenders without their consent are likely, therefore, to engage Article 8. In X v Austria, the ECtHR held that '[c] ompulsory medical intervention, even if it is of minor importance, must be considered an interference with [Article 8 ECHR]' . 80 In YF v Turkey, a gynaecological examination of the applicant while in police custody was held a violation of her Article 8 rights, since 'any such interference with the physical integrity of a person had to be prescribed by law and required the consent of that person' . 81 The assisted death cases that have come before the ECtHR and set out a right to decide 'how and when to die' could also plausibly be generalised as a right to take decisions that concern one's bodily autonomy more generally. 82 It might be argued that while administering ALIs to offenders without their consent seems a pro tanto interference with their autonomy, doing so does not obviously diminish their autonomy all things considered. For reducing an offender's sex drive may render him more capable to resist his urges and better able control his thoughts and therefore able to think and act more freely. If ALIs have this effect, they may be autonomy-promoting. 83 HRO proponents may remain unconvinced by this argument, however, or they might think that bodily integrity is so fundamental to autonomy and to offenders' Article 8 rights that interference with it is impermissible even if it promotes recipients' autonomy all things considered. 84 We have a right to be free from nonconsensual interference with our bodies in other situations such as standard medical treatment, they might say, even when such interference would benefit us and increase our autonomy. 85 We might respond that this presupposes more robust protection for autonomy/ bodily integrity than is supported by Article 8 ECHR. Crucially, Article 8(1), even when engaged, offers only a qualified right to personal autonomy. Interferences with an individual's Article 8 rights may be justified and thus compliant if they: (i) pursue a legitimate aim, are (ii) in accordance with the law and (iii) necessary in a democratic society. Condition (iii) turns on proportionality: ALIs can be necessary in a democratic society only if they are proportionate to the end they aim to achieve. I grant (ii) for the sake of argument.

In respect of (i), ALIs may serve several legitimate aims. They may be accepted as serving the aim of protecting the recipient's own health, especially if he suffers from a treatable mental disorder, 86 since as noted above, English courts accept that sex offending may be a manifestation of mental disorder 87 and ALIs treatment for such disorder. 88 In general, however, the individual's right to refuse interventions interfering with her bodily integrity enjoys strong protection. 89 ALIs may therefore be more readily accepted as compliant when furthering other legitimate aims. The ECtHR has previously accepted non-consensual medical interventions such as blood tests, vaccinations and screening programmes as justified on grounds of protection of 83 the rights and freedoms of others, 90 prevention of disorder or crime, 91 public safety 92 and the preservation of public order. 93 ALIs employ similar means (injections, drugs) and they could arguably be said to pursue any of these legitimate aims, since '[s]exual offending is a serious social problem, a public health issue, and a major challenge for social policy' . 94 But we may be on even stronger ground arguing that ALIs pursue the aim of the prevention of disorder or crime, since sex offences are serious crimes generally warranting severe responses.

In respect of condition (iii), focusing on proportionality, ALIs may, even if administered in pursuit of a legitimate aim, constitute a disproportionate interference with recipients' rights. The proportionality test employed by the ECtHR to determine whether a (qualified) right has been violated has tended to be implicit, 95 but the ECtHR has held that a proportionality requirement inheres in the Convention as a whole, also when not explicit. 96 Moreover, the analysis employed by the ECtHR corresponds to that used by English courts, who have been more forthcoming. 97 For example, the proportionality inquiry was explicitly stated in R (Aguilar Quila and another) v Secretary of State for the Home Department: 98 (a) is the legislative objective sufficiently important to justify limiting a fundamental right? (b) are the measures which have been designed to meet it rationally connected to it? (c) are they no more than are necessary to accomplish it? (d) do they strike a fair balance between the rights of the individual and the interests of the community? 99 Similarly, in Bank Mellat, Lord Reed broke down the test in four steps:

(1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective and (4) whether, balancing the severity of the measure's effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. 100

The proportionality requirement places constraints on the arrangements under which ALIs can be permissibly provided. It would, for example, rule out the blanket provision of ALIs in response to certain crimes, regardless of offenders' suitability or medical needs. This is because blanket provision would allow for ALIs being provided to offenders (interfering, we assume, with their Article 8 rights) for whom they could not reasonably be expected to have any of the intended effects. There would therefore not be any rational connection between the measure (ALIs) and its (legitimate) aim (reduced risk of sex offending). 101 Blanket provision aside, however, it does not seem obvious that ALIs would be a disproportionate measure. We want, presumably, to allow for some kinds of responses to criminal offending that go beyond how we would treat non-offenders. Sex offences are serious crimes that will generally warrant incarceration. The fact that potential ALI recipients will often, due to having been convicted of such crimes, already be liable to be treated in certain ways in which non-offenders could not legitimately be treated affects the balancing of the interests of the individual and the public under Article 8(2). 102 It is thus not sufficient to demonstrate that we in general have a right against non-consensual interference with our bodily integrity to have a compelling argument against ALI use in sex offenders. We may accept (as most of us do) that we generally have a right to bodily integrity, but note that we also generally have a right against the restrictions of freedom of movement and association involved in incarceration. 103 Incarceration of criminal offenders is not justified on grounds that we do not generally have a right to freedom of movement and association, but rather on grounds that the offender's conduct makes him liable to be treated in certain ways in which it would not be permissible to treat him, but for that conduct. 104 The justification for treating offenders and non-offenders differently is (generally) taken to be along the lines that the offender's criminal conduct causes some of his rights to lose some of their protective force, for example, because he waives some of his rights by committing a criminal offence, or because his offence activates an exception clause already built into those rights or confers on other individuals certain rights to restrict some of the offender's rights (which must then be balanced against the offender's persisting rights against having his rights restricted). 105 The structure of Article 8 seems to reflect one or more of these ideas. It sees interferences with an offender's rights as justified when pursuing a sufficiently important public interest, such as crimeprevention or the protection of others and when the interference is proportionate to the importance of the public interest pursued and is taking place in response to a certain act by the offender. The question, then, is which of the offender's rights are affected in this way by his criminal conduct, and why these and not other rights can be permissibly restricted in response to it. Prima facie, it seems that the kinds of considerations that justify restrictions on our freedom of movement could also justify restrictions on our freedom from interference with our bodily integrity. 106 Proponents of the HRO may argue that the right to bodily integrity is more robust than other rights, such that it is not susceptible to being affected by our criminal offending in the way or to the degree our right to freedom of movement is affected by criminal offending. They may point out that while we generally accept that criminal offending makes it permissible for the state to impose some measures it could not permissibly have imposed but for that offending, few would hold that criminal offending renders us liable to all or any forms of restrictions of our rights. An individual's criminal offending, even when serious, is not typically thought to render it legitimate for the state to torture him, for example. This might be because some of our rights, such as our rights not to be tortured, are more robust than some of our other rights, such as our right to freedom of movement. 107 Article 3 seems to represent a right of this kind, for under it we have a right to be free from torture and inhuman or degrading treatment irrespective of whether a good justification for overriding exists and irrespective of our conduct. 108 HRO proponents may argue that our right to bodily integrity is like the right not to be tortured or like Article 3. But, as we saw in section 2, Article 3 does not protect bodily integrity per se, it protects against invasions of it of a particular severity. And the Article that comes closest to protecting bodily integrity per se-Article 8offers only qualified protection and accepts that interferences can be justified on either of several grounds. The ECHR framework does not, then, appear to regard the right to bodily integrity as akin to the right not to be tortured.

It may be responded that even if the right to bodily integrity is not quite like the right not to be tortured, it is nevertheless more robust than, for example, the right to freedom of movement. Therefore, 'it takes a greater deviation from normal circumstances for the right to bodily integrity to lose its protective force than for the rights to freedom of movement and association to lose their protective force; it takes more to render oneself liable to impositions on bodily integrity than to render oneself liable to impositions on free movement and association' . 109 But it does not seem obvious that this is the case. To make this move, HRO proponents would need to provide an additional argument for bodily integrity having a special status or our interest in it being much more important than our interest in freedom of movement.

In the absence of such an argument, HRO proponents might try to hang their objection to interventions interfering with bodily integrity on some other consideration. For example, they might rely on an argument from harmfulness instead. They may argue that even if the mode of administration of ALIs is relevantly similar to those the ECtHR has previously accepted as justified (blood tests, etc.), either the intended effects (loss of sexual desire, etc.) or side-effects (liver damage, osteoporosis, etc.) of ALIs set them apart. The harmfulness of these effects may suffice for ALIs to fail the proportionality test. HRO proponents may also argue that potential 'feminising' side-effects, such as breast growth and lactation, might be degrading and therefore disproportionately harmful. 110 But it does not seem obvious that non-consensual interferences with someone's bodily integrity (of the kind involved in ALI use) typically entail more serious harm than restrictions of freedom of movement and association (of the kind involved in incarceration). For restrictions of freedom of movement and association involved in incarceration have harmful effects too (albeit some of them of a different kind): restricting offenders' ability to form and maintain personal relationships including sexual ones, hindering the pursuit of most life-plans and most sources of well-being and typically causing significant distress. 111 The same seems to be true of other values on which objections to interferences with bodily integrity might be hanged. Whether it is argued that interferences with one's bodily integrity will be experienced as more harmful 112 or would be a greater threat to one's agency or sense of agency 113 or sense of identity and self-control, 114 it is not obvious that incarceration would not affect offenders in similar ways. The fact that the ALI recipients we are concerned with here are already liable to being subjected to some burdensome responses to their offending seems to generate at least some obligation for HRO proponents to engage with the respective burdensomeness of ALIs and traditional responses, if they are to establish that ALIs are a disproportionate response to criminal offending. 115 There is, however, another reply available to HRO proponents. They might again point to the limited evidence of ALI effectiveness and argue that if ALIs are ineffective in achieving the desired (legitimate) end, while imposing potentially quite severe side-effects on recipients, this may render them a disproportionate response to sex offending. 116 Indeed, the evidence of ALIs' effectiveness may be so limited that HRO proponents could argue that they would fail the second step of the proportionality inquiry-the rational connection limb, that is, whether the relevant measure is adequate to achieve the pursued aim-without even needing to consider whether ALIs are proportionate strictu sensu (step four of the proportionality inquiry). But this reduces the HRO to an empirical objection, which holds only as long as the evidence of ALI effectiveness remains sparse. 117 Moreover, if we take the desired (and, suppose, legitimate) aim of both ALIs and traditional responses such as incarceration and behavioural sex offender programmes to be reducing the risk of recidivism (post-release), we may grant that the effectiveness of ALIs in achieving this end is limited, but point out that the alternatives are not particularly effective, either. 118 If incarceration is a proportionate response, despite its serious problems, it seems unlikely that no ALIs could survive the proportionality analysis. Another reply open to HRO proponents, of course, is to argue that she is not committed to defending current incarceration practices or indeed incarceration at all. In analysing the relative burdensomeness of ALIs and traditional correctional practices such as incarceration, we might of course come to the view that neither seems justified or proportionate. 119 Rosati argues that interventions that interfere with bodily integrity could in many cases 'perfectly well be part of a sentence which, taken as a whole, is proportionate to the severity of the crime committed' , Rosati,

Let us finally consider a version of the HRO according to which non-consensual ALIs violate recipients' human rights by violating their rights under Article 12 ECHR. Article 12 ECHR holds that '[m] en and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right' . 120 The exercise of this right is subject to national law restrictions on its scope, but any limitations imposed by national laws are subject to ECtHR supervision and 'must not restrict or reduce the right in such a way or to such an extent that the very essence of the right is impaired' . 121 ALIs may in some recipients reduce their testosterone levels to such a degree that recipients lose their ability to have erections and ejaculate. If offenders for whom ALIs have this effect are required to undergo the intervention for a prolonged time period, ALIs may impede their ability to conceive biological children. 122 Of course, Article 12 claims are only possible for offenders within a certain (reproductive) age span, who have sex with women, and for whom ALIs have physiological effects of the kind that impedes unassisted reproduction. Some ALI recipients are still able to have an erection and ejaculate and therefore reproduce. In respect of these offenders, then, there is no potential Article 12 breach. 123 In addition, for some sex offenders, Article 12 may not be a tangible right anyway, because there is no set of circumstances in which they would be able to have a family of this kind, for example, because their offences and circumstances are such that they would (in the context of English law) be subject to care proceedings or Sexual Harm Prevention Orders taking their children away from them if they had them. Nevertheless, there is plausibly a substantial class of offenders who fall within the category whose Article 12 rights may potentially be affected by ALIs.

Some of the plausibility of an Article 12 claim will turn on the length of the intervention and its relation to the reproductive lifespan of the parties affected. In the case of pharmacological ALIs, any effects that prevented reproduction would be reversible once ALIs had been discontinued. Preventing an offender from exercising his right to found a family may be Article 12 compliant if temporary, 'as long as the length of the treatment does not completely undermine the essence of the right' . 124 Here, again, proportionality is key. In Dickson v United Kingdom, 125 an imprisoned offender and his wife argued that the refusal of his prison to facilitate the transfer of his sperm to a private fertility clinic at which his wife could undergo in vitro fertilisation violated both of their Article 8 and 12 rights. The offender's wife would be 51 years old at the earliest possible time of his release. The English Court of Appeal accepted that the supra n 10 at 150. Note that Rosati also argues that 'internal punishment' such as ALIs may in fact be too lenient to be proportionate from a retributivist point of view (ibid. at 150-2). This would of course not be problematic from the point of view of human rights, but it does indicate that it is far from obvious that interventions that interfere with bodily integrity would always be disproportionately harsh. Dicksons' need for artificial insemination was outweighed by other factors, including that 'their relationship had yet to be tested in the normal environment of daily life, making it difficult to assess whether it would continue after Mr Dickson's release' (the couple had met while both incarcerated, through an inter-prison pen-pal programme), concerns for the welfare of the future child and public concern that the punitive and deterrent elements of Dickson's sentence would be undermined by making this service available to him and his wife. This decision was upheld by the Fourth Section of the ECtHR, but struck down upon reference to the Grand Chamber of the ECtHR. The Grand Chamber considered the Dicksons' Article 8 rights only, since they found it unnecessary to consider Article 12 after having found Article 8 violations. It emphasised that incarceration did not cause individuals to lose their human rights and that any interference with individuals' Article 8 rights thus must be justified and proportionate. The Court rejected the argument that making artificial insemination available to the Dicksons would offend public opinion and undermine the punitive and deterrent elements of the offender's sentence but accepted that the state could legitimately 'take steps to maintain public confidence in the penal system' and take into account the welfare of the future child. 126 However, the Court held that the requirement for the applicants to demonstrate that their case was exceptional set too high a threshold for access to artificial insemination and precluded appropriate balancing of the competing interests. 127 It therefore failed the proportionality inquiry.

Because of Mrs Dickson's age, a refusal to make artificial insemination available to the couple would not only delay, but altogether eliminate, their chance of founding a family together. Dickson can therefore be distinguished from the earlier case of R v Secretary of State for the Home Department, ex parte Mellor, in which the English Court of Appeal held a decision not to make facilities for artificial insemination available to be justifiable and proportionate under Article 8(2) and not a breach of Article 12, on grounds that it did not prevent the offender and his wife from founding a family but merely delayed it. Lord Phillips MR noted that: Imprisonment is incompatible with the exercise of conjugal rights and consequently involves an interference with the right to respect for family life under Article 8 and with the right to found a family under Article 12. This restriction is ordinarily justifiable under the provisions of Article 8(2). 128

His Lordship went on to note that '[e]xceptional circumstances may require the normal consequences of imprisonment to yield, because the effect of its interference with a particular human right is disproportionate' . 129 But, he held, 'it seems to be rational that the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed but prevented altogether' . 130 age at the time of his release, a delay, the Court held, did not constitute disproportionate interference with his or his partner's rights.

As long as ALIs are a temporary measure not extending across the offender's (or his partner's) entire reproductive lifespan, then, the interference with both parties' Article 8(1) rights may be accepted as justifiable and proportionate under Article 8(2) and as Article 12-compliant. Moreover, (very) long-term ALI use could be made ECHRcompliant, it seems, by a policy that allowed for artificial insemination facilities to be made available to offenders in exceptional circumstances, per Mellor. Indeed, it might be argued that ALI use, even when it prevents an offender from procreating, merely restricts the range of means by which he can found a family, by blocking off (temporarily) one of the avenues for family founding (natural conception). To say that offenders undergoing ALIs are prevented from founding a family, then, seems too strong a claim. 131 Article 12 compliance could be achieved, it seems, by not blocking off other means to founding a family, such as adoption or assisted reproduction, by, for example, giving offenders the option of freezing sperm prior to commencing ALIs. 132 HRO proponents may object that even if there exist other ways in which offenders could found a family, such options may be unavailable to them. Restrictions may prevent individuals convicted of sex offences from adopting, and assisted reproduction is not available to all who wish to use it and may not be available to sex offenders serving a sentence. Both assisted reproduction and adoption (unlike natural conception) are costly, which may preclude offender access. If alternative means of founding a family are also unavailable or severely restricted, long-term ALI use may disproportionately interfere with the offender's (and his partner's) Article 12 rights. But it seems that in this respect ALIs are again not necessarily more restrictive than traditional responses to criminal offending, such as incarceration. As we saw in Dickson and Mellor, incarceration also restricts offenders' (and their partners') ability to found a family. ALIs, we might argue, may in fact be less restrictive, depending on how we construe Article 12. If construed with an emphasis on the conception of a biological child element of 'founding a family' , ALIs may be more restrictive than incarceration, because ALI use may require offenders to freeze sperm prior to commencing treatment, while an incarcerated individual could presumably have his sperm retrieved for the purposes of insemination at any time while serving his sentence. If instead construed with an emphasis on the offender's ability to be part of, or play a role in, raising a family, however, ALIs are arguably less restrictive than incarceration. The latter interpretation seems more compelling. As Connie Rosati argues, Surely the right to control one's reproduction is not all about the freedom to decide whether to undergo the bare biological processes of conceiving, carrying, and giving birth to babies. Rather, the right concerns most centrally the freedom a person must have to decide whether and when to enter into the intimacy of a parental relationship, with all the rewards, hardships, and obligations that this relationship entails. The loss that a person incurs when her right to control her reproduction has been violated is thus not, in the case in which she wishes to have children, a mere loss of biological function or experience, but a loss of the freedom to nurture and rear her children. 133 This seems even more obvious when we are concerned with men's role in founding a family, which would, on the first interpretation, not seem very significant or meaningful. In Dickson, the Grand Chamber emphasised the legitimacy of taking into account 'the impact on the as-yet unconceived child of the prolonged absence from its life of its father, due to his incarceration' . 134 If ALIs might enable offenders to live outside prison, ALIs may be less restrictive in this respect. Also in respect of Article 12, then, it is far from clear that ALIs are more problematic than traditional methods, from the point of view of offenders' human rights.

According to the HRO-a common objection to the use of anti-libidinal interventions in sex offenders-(at least) non-consensual ALIs violate recipients' human rights. In this article I have sought to explicate and evaluate this objection in relation to the ECHR. I have argued that the objection, as it is often stated by its proponents, is unlikely to succeed under the ECHR. The rights that seem most likely to bear on ALI provision-Articles 3, 8 and 12-are unlikely to prohibit many instances of ALI usealso when it is non-consensual. In the face of this argument, the objection's proponents could either reject the ECHR framework but maintain that ALIs violate human rights or restate their objection so that it better fits this framework. Under the first option, they might develop arguments to the effect that the ECHR should be construed in some other way or that we should rely on some other human rights framework or that some other human right should be recognised in addition to the ones protected by the ECHR. 135 Another option is to restate the objection such that it better fits the ECHR framework. The preceding analysis has pointed to some ways in which proponents might do so. This would involve diverting focus from offender consent and towards other factors, relating both to the nature of ALIs and the nature of the relevant rights under the ECHR. In respect of Article 3, this involves engaging with whether ALIs are used in ways that seem more correctional (aiming at public protection through the prevention of recidivism) than therapeutic. If this is the case, it may be implausible to construe ALI use as medically necessary, which may give HRO proponents a stronger case under Article 3. In respect of Articles 8 and 12, restating the objection would involve engaging more closely with the balancing of the rights/interests of individuals and state/public interests at the heart of these rights. It is not sufficient to show that offenders possess (retain) the relevant human rights or that ALIs interfere with those 133 Rosati, supra n 10 at 142-3. rights; in order to successfully object to ALIs, it must also be shown that the interference with offender rights is disproportionate. Given that ALI recipients, as a result of their criminal offending, are already liable to be treated in some ways in which it would not be permissible to them but for their offence, this would seem to generate at least some obligation on critics of ALIs to demonstrate that ALIs are sufficiently more burdensome than traditional responses to offending, such that the former is a disproportionate measure when the latter is not.

Peters v Netherlands Application No 21132/93, Commission Decision

Acmanne v Belgium Application No 10435/83, Commission Decision

How to Improve the Necessity Test of the European Court of Human Rights

Soering v United Kingdom Application No 14038/88, Merits and Just Satisfaction

Application No 7151/75, Merits

For a discussion of proportionality from a judicial perspective, including its history and use in different jurisdictions, see Barak

Quila and another) v Secretary of State for the Home Department

Courts claim proportionality analysis is heuristic/epistemic, but Letsas argues that it is constitutive and involves moral reasoning when thinking about what rights people have

Proportionality as Fittingness: The Moral Dimension of Proportionality' (2018) 71 Current Legal Problems 53

Criminal Rehabilitation Through Medical Intervention

Suppressing Human Rights?

Criminal Rehabilitation Through Medical Intervention

Prison and the Brain: Neuropsychological Research in the Light of the European Convention on Human Rights' (2019) 10 New Journal of European Criminal Law 287. See also Brownlee

Is the Body Special? Review of Cécile Fabre, Whose Body is it Anyway? Justice and the Integrity of the Person

Our environment, Douglas notes, exerts a direct influence on us, including on our minds, and incarcerated individuals frequently suffer mind-altering effects, most clearly seen in solitary confinement, which can cause a number of agency-impeding mental conditions, including things like psychosis, depression, anxiety, anger and poor impulse control, cognitive disturbances, inability to tolerate external stimuli, panic attacks, paranoia, hallucinations and other perceptual disturbances, self-injurious behaviour and so forth. Douglas, 'Criminal Rehabilitation Through Medical Intervention' , supra n 9 at 117. See, for instance, Haney, 'Mental Health Issues in Long-term Solitary