Policy on Prisoners, Sex Offenders with Mental Disorders: Practice of Germany and Some Other Countries and Recommendations for Vietnam

isons or detention England, Denmark. This research thereby offers centers, prisoners have to face a reality of recommendations for Viet Nam, a nation under deprivation of liberty and restrained connection the great pressure to advance the criminal with families and friends; their physical, mental justice system in both directions of and sexual demands are not met as they are guaranteeing human rights of inmates and supposed. They also have to confront the sin successful rehabilitation, improving the committed to the victims or the inferiority effectiveness of crime prevention, crime and complex they cause for their own families and recidivism control. This paper does not put high society. The monotonousness and repeat of priority on mental health measures for daily life within the prison lead the confined to prisoners, psychiatric treatments, causes of a sense of boredom and deadlock. The sexual offenses or its related legal issues but unreasonable prison regime results in an emphasizes on clarifying polices for dealing imbalance between the collective and individual with mentally ill prisoners and especially for lives, between the communicating demand with those who are charged with sexual offenses. the society and the demand for the privacy to be respected and so forth, exerts a negative influence in both the physical and mental lives 2. Prisoners and sex offenders with mental of the convicted. Moreover, there are several disorders correction facilities in which dietary conditions are insecure, leading to hunger, thirst, 2.1. The confinement environment and the malnutrition and diseases. These hardships mental disorders of the prisoners aggravate the struggle of the offenders to preserve their dignity and ethical autonomy. Mental health is a medical term which can But more than that, the dominance of order and be expressed in different ways, whereas internal rules in the criminal world imposed by basically can be explained as the ability of the criminals themselves and the treatment by psychological machine to operate in a prisoners threaten the rehabilitation process and reasonable and satisfactory manner, to flexibly self – education reforms. Inmates have the cope with harsh circumstances but to maintain tendency to integrate or co-exist with this order the balance at the same time. In a modern to guarantee their safety and avoid to be society, the more people are facing various separated in the prison – the community they contexts, adapting to different roles and are living in. This phenomenon constructs „the meeting different requirements, the harder it is crowd effect‟, which tends to violate the order to sustain a good mental health and to maintain and regulations formed by the prison authorities the balance. A good mental health refers to the and criminal justice authorities, causing condition, in which people show no mental opposition or even uprisings of prisoners within disorder and their mental state is stable. Causes the confinement. of mental disorders and mental health comprise physical issues due to brain damage, cerebral On the other hand, in respects of many diseases or brain impairment, abnormal inmates, they themselves have been subjected physical constitution, and psychological to their own mental disorder. Those issues of problems, in particular when patients are mental health partially contributed to their addicted to stimulants such as alcohol, drugs or criminal offenses and their confinement. Even they are under pressure both physically and though they are suffering from a mental mentally. disorder while committing criminal offenses, why do they have to be arrested and confined? The confinement environment has a severe The reason behind this is the pressure that negative impact on the mental health of L.L. Chi / VNU Journal of Science: Legal Studies, Vol. 33, No. 4 (2017) 11-24 13 society puts on the government on the issue of Viet Nam, 11.680 HIV offenders (1,741 controlling criminals. Why is a person with people switched to AIDS) account 8.9 %, of mental illness arrested rather than taken to a prisoners [6]. hospital? Generally, persons who are suspected What is more, with differences in negative to have committed a felony are arrested and personal identities and low educational brought to jail regardless of their mental attainment, offenders find it harder to gain the condition. The criminal justice system, charged necessary understanding to attain psychological by society with the responsibility for removing autonomy and mental health for themselves. To people accused of committing serious crimes illustrate this, in England and Wales, the from the community, sees no alternative but to average number of criminals when compared to first place the person in the secure setting that is those in society are “13 times more likely to custody and then arrange for psychiatric have been in care as a child, 10 times more treatment if necessary. „If the person is thought likely to have been a regular truant from school, to have committed a serious crime, the police 13 times more likely to have been unemployed, and the criminal justice system generally do not 2.5 times more likely to have a family member want to leave this person in a psychiatric who has been convicted of a criminal offense, hospital where security may be lax, the offense 6times more likely to have been a young father” may be seen by staff as secondary to the [7]. They have a low educational degree and patient's illness, and the person may be released lack the skills to integrate in modern society: to the community in a relatively short time‟[1] “80 % have the writing skills of an 11-year-old, and „The mentally ill may be more likely to be 65 % have the numeracy skills of an 11-year- arrested because of the police officer‟s old, 80 % have the reading skills of an 11-year- perception that a warning to a mentally ill old” [8]. person may serve no useful purpose, or that the To summarize the above reasons, the ratio individual‟s behavior is considered to be too of offenders with mental illness is particularly unpredictable, so some intervention is high. In England and Wales, the SEU found necessary‟ [2]. that “70 % of all prisoners suffer from at least Using and depending on stimulants causes two mental disorders. This was in accordance serious mental illness. Among criminals, the with the findings of the Office for National amount using drugs is extremely high. Statistics in 1977, which state that 78 % of male According to statistics in Viet Nam, in 2012, remand prisoners, 64 % of male sentenced 7.194 convicted persons were addicted, in 2013 prisoners, 50 % of female prisoners ware the number was 6.831 and in 2014 there were suffering from a personality disorder (Office for 5.660 persons [3]. In Germany, „approximately National Statistics 1998)” [9]. In other 30 percent of the inmates are addicted to a European countries, the incidence rate is substance, and the lifetime prevalence of supposed to be high but there is no specific misuse is even higher (Keppler et al., 2010)‟ data: “Despite a reported increase of mental [4], the addicted account for 47% prisoners in health problems among prisoners in Europe and Switzerland and 32% ones in France and, in the worldwide, official data on the frequency of UK, the Home Office (2003) reported that psychiatric cases or the diagnoses in prisons are around 73 % of recently sentenced prisoners scarce. Most European countries included in had used illegal drugs in the 12 months before this study do not run psychiatric prison registers imprisonment [5]. Thus, the incidence of blood or have available routine information on the or sexually transmitted diseases is particularly frequency of mental disorders among their high. For instance, in England and Wales, the prison population” [10]. The above situation is average number of HIV-positive offenders is 15 evaluated: “This is a most serious omission, times higher than the outside community. In which is not moderated by the fact that 14 L.L. Chi / VNU Journal of Science: Legal Studies, Vol. 33, No. 4 (2017) 11-24 similarly sensitive fields (e.g., forensic 24 % come from genetic disorders and 27 % are psychiatry) suffer from the same shortcomings. due to neurological damage. Hormone disorders Without basic morbidity data, the extent and happen, when sexual hormones of male – burden of mental disorders in prisons will testosterone – elevate exceptionally resulting in remain unclear and any analyses focussing on intense sexual arousal and obsession, then the appropriateness of mental health care in losing awareness, control and disregarding any prisons will be blocked” [11]. In the US, 10 % methods or frameworks to achieve the up to 15 % inmates in state prisons cope with satisfaction of sexual maturation. severe mental illness [12]. Prisoners with Consequently, sex crimes must be mental ills have becoming a serious challenges condemned morally, but at the same time, for to criminal justice systems, a heavy burden to some people, they are also a form of mental correction authorities. illness worthy receiving sympathy and treatment during and after they serve their 2.2. Sex offenders and the mental disorder criminal responsibilities to help them recover For sexual crimes such as rape, sexual ailments and bring safety to the society. assault or sexual abuse (taking advantage of the The concerning matter is that the number of power to sexually harass or seduce, coerce sexual offenders is extremely considerable. For others to have sexual-intercourse), many of the example, in the US: „Rape and sexual assault offenders show symptoms of mental issues that offenders account for just under 5 % of the total lead to sexual disorders (paraphilia disorders). correctional population‟ [13]. In the There are some sexual disorders which are confinement environment, without caring and deviant and harmless for others such as treatment, psychiatric illness of inmates may masochism – causing self-inflicted pain when continue to be aggravated since they either hide, having sex or exhibitionism – exposing genitals self-restrain or engage in similar behaviors they in front of others. However, there are other had been convicted of to satisfy their sexual sexual disorders violating privacy, health, needs; In peculiar, they have the potential to honor, dignity or even lives of others namely develop other mental disorders. It is because voyeurism (peeking others bathing, dressing, „Sex offenders are perceived as occupying the having sex), frotteurism (rubbing their sexual lowest possible rung within the prison social organs on others‟ body), sexual fetishism hierarchy, not only among inmates, but also (taking others‟ objects to imagine having sex among custodial and often treatment staff. This with them), sadism (sexual disorders leads to extreme secrecy and fear of self- proactively causing pain – physically hurting disclosure based on a legitimate fear for their others when having sexual intercourse), safety‟ [14]. pedophilia (having sex with children), necrophilia (having sex with corpses) and incest (having sex with close relatives). When losing 3. Handling of prisoners with mental self-control, those people can attack, threaten or disorders in germany and some other entice others to have sex with them. Roots of countries those sexual ailments are usually originated from previous psychological disorders during 3.1. Germany childhood or adolescence. They used to be Almost all European countries, being sexually abused; be proactive or passive in member states of the ECHR, stress the aim of studying, imitating behaviors of sexual rehabiliatation and re-socilization with the disorders from adults or movies. Additionally, beilief that prisoners are eligible to bear kind studies in the United States show that 74 % treatment of the society and thus, prisoners sexual disorders stem from hormone disorders, L.L. Chi / VNU Journal of Science: Legal Studies, Vol. 33, No. 4 (2017) 11-24 15 could realize the value of kindness, the role of offenders while they were intoxicated or as a the rule of law and of law observance. Thanks result of addiction, stated in Section 61, 63, 64 to that perspective, the prison system is of the Criminal Code, applied by the Court. organized around and focused on the pillars of “The German code of criminal procedure rehabilitation and re-socialization. The above includes regulations for the release of prisoners mentioned aim is the strong confirmation of in cases of severe mental illness and life- principle stated Article 10 para. 3 of the threatening diseases (Strafprozessordnung, International Convenant on Civil and Politic 2010). If patients are already in prison, the Rights 1966: “The penitentiary system shall punishment can be discontinued in such cases. comprise treatment of prisoners of which the One important factor is that punishment can be essential aim shall be their reformation and discontinued if a health problem cannot be social rehabilitation”. treated within the prison system. For example, The Federal Act concerning the execution in the State of Berlin, there are no psychiatric of prison sentences and measures of beds for female offenders within the system. In rehabilitation involving deprivation of liberty of all cases of interrupted imprisonment, the goal Germany (German Prison Act) defines is to reduce relevant security risk for the rehabilitation measures for prisoners. This community. Otherwise, the inmates must stay results in a better life for inmates after their in prison even if they cannot be treated there. release and prevents the society from re- However, patients can be brought out of prison offenses as well. As the results, therapeutic to public institutions or hospitals for treatment, treatments at social therapeutic institutions as prisoners (§ 65 Strafvollzugsgesetz, 2011). (seperatedly located from other units of prison), Under these conditions, the prison system is are popularly applied upon prisoners with responsible for ensuring that the patient does mental illness and prisoners convicted of sexual not escape. This is routinely done by shackling offences stipulated from Section 176 to Section prisoners. Under these conditions, confidential 180 of the German Penal Code. Section 7 of the psychiatric treatment is not possible, especially German Prison Act considers the transfer to a when intensive treatment is required. In social therapeutic institution as one of 8 addition, the prison system is not interested in treatment measures applied to prisoners. creating further security problems and must According to Section 9, “A prisoner shall be take on the burden of providing resources transferred to a socio-therapeutic institution if including security, which can take weeks or he has been sentenced to more than two years' months. Furthermore, the prison system must time-limited imprisonment regarding a criminal pay for treatment costs from its own budget. In offence in accordance with Sections 174 to 180 Germany, general health insurance is suspended or 182 of the Criminal Code”, and “The once a person is imprisoned” [15]. prisoner shall be transferred back if the purpose In conclusion, the legal framework of of the treatment cannot be achieved for reasons Germany on psychiatric treament for convicted inherent in the prisoner's personality”. These prisonsers is rather synchronous, from the measures are used for inmates during their Prison Act, the Penal Code to the Criminal rehabilitation, the treatment measures are also Procedure Code, thus contributing to a flexible discussed with the prisoners and their legal mechanism to an early and longlasting willingness is encouraged. They are distinct intervention for the convicted, through their with “measure of rehabilitation and process of serving imprisonment sentence, even incapacitation” as “mental hospital orders” subsequent to their releases [16]. In practice, the sentenced to offenders in insanity or offenders appearances of social-therapeutic units in the who diminish responsibility, and “custodial prison systems of almost Länder (states) in addiction treatment orders” sentenced to Germany guarantees the specific treatment needed 16 L.L. Chi / VNU Journal of Science: Legal Studies, Vol. 33, No. 4 (2017) 11-24 for prioners with mental illness. However, the implementation of mechanisms to transfer lack of psychiatric expertises with professional prisoners out of the prison system, and efforts training has lead to certain unexpected outcomes to offer treatment for a less serious mental of the treament; the evaluation on scale and illness, personality difficulties and substance capacity of the treament is also not easy because abuse problems within the prison estate. Those of isufficiently updated data. sentenced to prison terms who are subsequently 3.2. Other countries found to be suffering from serious mental illness are transferred out from prisons into Because the prison population in the US NHS hospitals. Once there, some may be tends to be incarcerated for longer periods than returned to prison when they improve, but jail inmates, treatment possibilities in a prison many will complete their sentences in NHS setting are more extensive, depending on hospitals [18]. funding and other factors. Counselors and Nevertheless, England and Wales also have prison administrators may establish programs insufficient data on the treatment of that are long term and comprehensive. psychometric prisoners, on the process and Substance abuse issues may be addressed along results, lack of professional medical staff for with behavioural, emotional, and psychological treatment of mentally ill people and lack of problems. Ideally, prisoners have the standards of mental care for prisoners. opportunity to abstain from substances and learn new behaviours before release [17]. Main In Denmark, prisoners during their program components are: Community admission period are taken to a medical meetings, events, and ceremonies; Seminars; examination to determine whether they suffer Group encounters; Group therapy; Individual from a mental illness or not. If there are counseling (both from staff and peers); Tutorial grounds to believe that prisoners have a mental- learning sessions; Remedial and formal disorder, they shall be transfered to a education classes; Client job-work psychometrist, after that, under decisions of the responsibilities; Explicit treatment phases that Court, they are treated at expertised mental care are designed to provide incremental degrees of units as in-patients or out-patients. psychological and social learning. All confinement facilities have part-time In England and Wales, prisoners, whether psychiatrists to practice short time treatment for on remand or sentenced, who are suffering from prisoners, evaluating the status of a prisoners‟ a serious form of mental disorder (i.e. psychotic mental disorder to consult, to cure them right in illnesses or severe mood disorders) and are the prisons or transfer them to Herstedveste deemed in need of hospital treatment, are Institute. In general, prisoners are regularly transferred out of the prison system into watched by line officers and social workers in psychiatric hospitals of the National Health their course of work, training and living. Service (NHS), either general or forensic, Psychiatrists are consulted when it is necessary depending on the clinical needs of the patient. to take their opinions into consideration before Compulsory treatment is not permitted in a prisoners‟ release or parole. Inmates are prisons under the Mental Health Act 1983, entitled to exam and to treat in hospital [19]. because there are no hospitals in prisons. Prisons contain “health care wings”, but these 4. Handling of sexual offenders with mental are not designated as hospitals and there are no disorder in germany and other countries psychiatric “wards” within the prison system. 4.1. Germany The care of the mentally-ill in prisons therefore falls into two halves: the identification Germany is one of the countries in which of a serious mental disorder and the the voluntary surgical castration of sexual L.L. Chi / VNU Journal of Science: Legal Studies, Vol. 33, No. 4 (2017) 11-24 17 offenders remains. The legal requirements for information to the offender to ensure that they the application of surgical castration are set out do understand their cases. in the (federal) Law on Voluntary Castration Pursuant to the Law on Voluntary and Other Methods of Treatment of 1969 (“Law Castration and Other Methods of Treatment of on Voluntary Castration”). According to 1969, in respect of the person concerned being Sections 2 and 3 of the aforementioned law, a deprived of his liberty (i.e. prison, forensic person may be the subject of surgical castration, psychiatric hospital, preventive detention), he at his own request, if: (a) the intervention is must be informed that surgical castration does indicated, in the light of the latest findings of not entail entitlement to early release, must give medical science, in order to prevent, cure or his consent by signing a statement to this effect alleviate severe illness, mental disorder or and must also be advised to undergo medical suffering which are related to an abnormal sex checks after the intervention; his spouse must drive, or (b) a person displays an abnormal sex be consulted, unless the latter is opposed to it, drive, which, on account of his personality and or such a consultation appears to be past life, gives reason to suspect that he will inappropriate. Then, the expert commission commit one or more criminal offences decides by majority; a positive decision is valid enumerated in the law (in particular, murder, for one year; if the castration is not performed manslaughter, rape, sexual abuse of children, within one year, the authorization can be severe bodily injury, or exhibitionism) and that renewed once for another year (upon request). castration is indicated in the light of the latest The Law of the respective Länder shall define findings of medical science, in order to counter in detail the proceeding and the competences to that risk and thus to support the person perform the castration. concerned in managing his life. However, there has been strong official In term of proceedings, before giving his protest against this practice, according to a consent, the person concerned must be Report to the German Government on the visit informed about the reasons, implications and to Germany carried out by the European side effects of the castration as well as other Committee for the Prevention of Torture and treatment possibilities. They have to meet the Inhuman or Degrading Treatment or following conditions: (1) minimum age of 25 Punishment (CPT) from 25 November to 7 years; (2) the castration will not lead to physical December 2010: Firstly, such an intervention or psychological adverse effects which are has irreversible physical effects; it removes a disproportionate to the aspired aim of the person‟s ability to procreate and may have intervention; (3) medical examination and serious physical and mental consequences; positive evaluation by an expert commission Secondly, surgical castration is not in (Gutachterstelle) of the medical chamber of the conformity with recognized international respective Land; 4, approval of the standards. As a matter of fact, new methods of guardianship court (applicable only when the treatment have been developed); Thirdly, there person concerned is not able to give a valid is no guarantee that the result sought (i.e. consent). After all, necessary legal proceedings lowering of the testosterone level) is lasting. shall be applied based on the consent of the Regarding the re-offending rates, the presumed offenders. A commission (with two doctors positive effects are not based on sound including a psychatrist and one lawyer as the scientific evaluation. In any event, the requirement of the Court) shall consider a legitimate goal of lowering re-offending rates medical report on the situation of the offender must be counterbalanced by ethical with related judicial and administrative issues, considerations linked to the fundamental rights subsequently, the commision will send all of an individual; Fourthly, given the context in which the intervention is offered, it is 18 L.L. Chi / VNU Journal of Science: Legal Studies, Vol. 33, No. 4 (2017) 11-24 questionable whether consent to the option of to have a castration performed on them before surgical castration will always be truly free and their release. Texas is the first state who informed; the Act should be promptly presently applies castration measure to discontinued because such an intervention has recidivists upon their consent. Recidivists in irreversible physical effects; it removes a Illinois, Ohio and Arkansas can have their person‟s ability to procreate and may have sentence reconsidered after castration. Surgical serious physical and mental consequences [20]. castration, in theory, is an effective measure, as its nature is to cut off genitals, the organ which 4.2. Other countries produces 95 % of the male hormones. Surgical castration has been proven to reduce sexual In the US, as in Germany, provisions on drive in many offenders, according to several castration also raise concern about the context studies. A German study showed a recidivism in which the offenders render their discretions, rate of 3 percent for castrated offenders, whether they possess enough medical compared to 46 percent for non-castrated information and psychological consultants to offenders [22]. Nonetheless, in clinical point of decide. On the other hand, the fact that view, some experts supposed that after the prisoners should undergo castration needs to surgery, some patients could recover some of derive from their history of mental and physical their sexual functions and some others, could health, but reason is that one can commit a use medicine to supplement testosterone. In sexual offense in various situations, stemming additions, to strengthen the protest against from various causes. However, according to the surgical castration, it is said that other statements in law, castration measures psychiatric or psychological therapeutic including surgical and and chemical one has treatments could be implemented as an effective received comments that legislators had suffered replacement for castration. So, provisions of from the pressure of society to act, without surgical castration are supposedly a matter of sufficient compelling grounds, and the politics rather than a matter of medical care. legislation should have to be the joint consideration of three sides: legislators, Vice-versa, the US is known as a country criminal justice practioners, and medical with abundant post-release programs to experts. supervise and control sex offenders when they return to society. Based on Violent Crime Subsequent to judgment between chemical Control and Law Enforcement Act of 1994, and surgical castration, the offenders tend to each State requires sex offenders to register choose the chemical one. Chemical castration is their personal information with a certain performed by injecting some doses of medicine frequency to assist the police. Data registry is into the patients„ blood to reduce the amount of also released upon suggestions of relevant testosterone. This measure does not seem to individuals and organizations. Department of cause debate, in fact, in this case the debate is Corrections has competence to make public all centered around its effectiveness. What is the necessary information for warning of re-sexual real length of the effectivenees, what is the offenses. To safeguard for the community, decline of sexual drive? And, the most sexual offenders shall be controlled in the important fact is this: usage of chemicals to following manners: perform castration could change/exert control over the offenders‟ mind and thus could violate + Control over accommodation: the the freedom of thought and speech [21]. offenders must register their stays in detail, which are required to be far away from the On the other hand, in some states of the US, shelter of victims or the ones who are in to enjoy parole or probation offenders have to danger of being victims. The offender must choose castration. California requires offenders utilize electronic devices for remoted L.L. Chi / VNU Journal of Science: Legal Studies, Vol. 33, No. 4 (2017) 11-24 19 supervision or are compelled to live in his sexual crimes and who are motivated for shelter, to receive regular or irregular treatment might receive suspended sentence on exams of correction officers and lawyers of condition of psychiatric/sexological treatment. the victims. The treatment takes place at one of three + Control over communication and psychiatric facilities, all of which are traveling: the offenders must provide departments of university psychiatric clinics. driving itinerary, report on their routes, Based on individual needs, the clinics offer departments and arrivals. counselling, cognitive therapy, psychoanalytically oriented psychotherapy or + Control over accessing information to group therapy, together with prevent the offenders from the purchase or psychopharmacological treatment if indicated. reading of pornographic images, pictures, An offender is also under the supervision of a magazines or even from logging into the probation officer, who is responsible for social Internet. support and help in cooperation with the local + Control over medical treatment: the social authorities. offenders must supply blood samples for Offenders who have committed more DNA experiment to serve other serious sexual crimes receive ordinary investigations, to undergo electrocardiogram sentences. The imprisonment, however, starts (ECG), to measure the reaction and the with a short stay in a special unit at the dimension of the genitals with outside Herstedvester institution with purpose of excitement factors. The offenders need to examining an offender‟s motivation for attend training courses and treatment courses treatment, and if needed, to motivate him for (and even single psychiatric treatment treatment. Treatment-motivated offenders then courses if it is a case of a special sexual serve their sentence in open prison and receive disorder) to improve their understandings psychiatric/sexological treatment as previously and to adjust their behavior. described. The most dangerous sex offenders In England and Wales, sex offender are not included in the programme, but are still treatment programmes are mandatory for most offered treatment during their imprisonment in categories of sex offenders. Whilst forensic Herstedvester [24]. psychiatry services may have a role in providing multi-disciplinary sex offender treatment programmes, sex offender 5. The situation in Vietnam and programmes are not generally part of overall recommendations health care commissioning arrangements. Sexual offenders do not generally have mental There have not been any official statistics health problems, and sexual paraphilias and about mental health issues in Viet Nam, disorders of sexual preference are specifically according to the Ministry of Health, Health excluded from the scope of the Mental Health Management Department, mental disorder is Act. Services are provided in prison on a group one of the most common non-transmitted basis, generally by non-clinical psychologists diseases, leading cause of a series of ailments, employed by the prisons [23]. of which nearly 15% of Viet Nam‟s population In Denmark, since 1997, the country has equal to 14 million of people are suffering launched a nationwide treatment programme for from, among which 3 million are suffering from sex offenders carried out in collaboration severe mental disorder [25]. Notwithstanding, between the psychiatric health-care system and the number of patients receiving treatment is the Department of Prisons and Probation. relatively low, 2-3 persons out of 10 get Offenders who have committed non-violent 20 L.L. Chi / VNU Journal of Science: Legal Studies, Vol. 33, No. 4 (2017) 11-24 medical care, but by medicine not psychiatric mentioned above, infra-structures make it hard treatment [26]. for this concern to be dealt. According to Viet Nam is a country with relatively high Article 27 of the Criminal Law Enforcement number of criminals and the common penalty Act, during the execution of a sentence of applied is imprisonment. Inmates in Viet Nam imprisonment, if showing any signs of mental are confined in a quite crowded environment, illness, the patients will be taken to the separate according to Article 42 of the Criminal Law area. Identifying signals of mental illness is not Enforcement Act, the minimum area for one easy since not all prisons have psychiatrists and prisoner is 2m2. However, sometimes the treatment procedures for those prisoners from overcrowded prison situation prevents this the detection to the decision of compulsory requirement to be met. The high incidence of applying is long in terms of legal process (the physical illness, the average number of prison requires the Court to request forensic prisoners with HIV or drug addiction, and other psychiatry expertise, after the assessment issues which are the causes of mental disorders conclusion, the Court will make the decision to of any inmate in other countries lead to the transfer the offender to a mental clinic) and possibilities of instability and psychiatric illness assessing process (sufficient time needed for of prisoners in Viet Nam. forensic psychiatric examination can even be up to 2-3 months to record, experiment and give Legally, the Criminal Code of Viet Nam has accurate conclusions, during which period, if promulgated several regulations about accordance to the law, prisoners are still in compulsory treatment for criminals, but only detention, far from the workplace of “for persons who are serving their penalties but examiners). Hence, it will extend the length of are suffering from illness to the extent of losing time the patients are taken to the hospitals. For their cognitive capability or the capability to other prisoners with mild mental illness or other control their acts” As mentioned, this is a psychiatric conditions that have not been judicial procedure decided by the Court, basing detected yet the treatment is quite difficult. on the conclusion of the Medical Examination Council, may decide to send those persons to Criminals with mental illness convicted of specialized medical establishments for sexual crimes have not received much concern compulsory treatment. After their recovery over causes of crimes and criminal policies for from illness, such persons shall continue them. Similar to other nations, in Viet Nam, serving their penalties, if they have no reasons sexual crimes are regarded as heinous and for exemption from serving their penalties and condemned vigorously. In the recent occurrence the medical treatment duration shall be of many social crimes, lawmakers and judges of subtracted from the term of imprisonment Viet Nam are facing pressure to impose more imposed. When the head of the confinement serious punishments on the offenders. If facility senses the signals of illness, he will ask offenders with mental ailments charged with the Court (provincial level) to request forensic sexual crimes are not applied compulsory psychiatric examination and decide to apply treatment as mentioned above, their compulsory treatment. Actually, prisons all punishments are basically the same, most of have clinics and a team of physicians for them get quite strict punishments, serve their medical examination and treatment. On the penalties in detention and return to the society arrival at the camps, prisoners are checked and in the same manner as other prisoners. There results are recorded in medical books. If they have been no much studies, statistics or data suffer from serious diseases, they will be treated about the recidivism rate in practice. at infirmary of the prison or taken to the state From listed issues plus comparison with hospital. Notwithstanding, with current practices in Germany and other countries, the conditions of mental health care in Viet Nam as L.L. Chi / VNU Journal of Science: Legal Studies, Vol. 33, No. 4 (2017) 11-24 21 following measures for criminals with mental respecting the court, respecting and disorders and sexual offenders are suggested: ensuring the validity of judgments; + A comprehensive survey and evaluation decisions and amendments of decisions for of mental health issues for inmates in the convicted must be considered and prisons should be conducted to obtain full decided by the Court. However, it is not data on the type, the level as well as the necessary to involve the Court‟s decision structure and rate of mental disorders; in soliciting a forensic psychiatric assessment for inmates. + Studies on mental health conditions and medical procedures that are applicable and On the other hand, the competence agency necessarily applied to offenders need of administration the criminal judgment developing from the practices of foreign execution, the Ministry of Public Security, countries; Ministry of National Defense), should coordinate with the Ministry of Health in + Trainings of human resources for social issuing regulations defining what signs are works with specialization in psychological considered mental illness as a basis for prisons‟ and mental health should be promoted and administrators to decide on the separation or then this human resource should be used to transferring prisoners from normal cells to assist jail supervisors in caring for and private ones. Because whether the separation dealing with mental issues of evildoers so and transferring are right or wrong, quick or that mental ailments will be restricted and slow, it has a tremendous impact on the the efficiency of education reforms will be evildoers and people around them. The improved; managing mechanism of living, working and + According to the requirements of citizens, medical care for those people within the privatization of mental clinics and health detention should be improved to support care centers for psychological treatments criminals and guarantee the safety of the and mental disorders should be boosted in prisons. order to increase the population with More policies for sexual criminals should specialization in psychological and mental be added in the direction of: issues so that detention centers and prisoners‟ families will have more options + Modifying the Penal Code with: 1, adding of compulsory treatments to choose from; castration as content of compulsory treatments. Due to the lighter and more + Prisons‟ officers should be allowed to ethical nature, medical castration is make a direct decision to request forensic mandatory for criminals before they are mental examination and after the results, allowed to return to the community; 2, they hand the documents to the Court for supplementing the application of probation compulsory treatments instead of reporting or ban from residence penalties to sex to the Court in order to request forensic offenders (additional penalties beyond the mental examination as is currently done. principal penalties, usually for those who Some even suggest that camp have completed serving their administrators should make a direct imprisonments). decision on the application of compulsory treatments for prisoners instead of the + Amending the law on execution of Court; however, this proposal is criminal judgments so as to specify the unreasonable because it will lead to a order, procedures and competent subjects breakdown in the rapport between the in organizing the implementation of this Court and the current criminal justice measure, of which the prisons‟ supervisors system, which operates on the principle of should be in charge under the medical 22 L.L. Chi / VNU Journal of Science: Legal Studies, Vol. 33, No. 4 (2017) 11-24 management of the jurisdiction of Ministry achievements and models are not immediately of Health as the model of poison applicable in Viet Nam, their practical lessons management to enforce the current death are worthy of reference. Adjusting the policies penalty. for dealing with sexual offenders due to mental + Specifying stipulations on managing, issues is a matter for Viet Nam to urgently monitoring, examining and patrolling sex improve on the institutional side by paying offenders who have been returned to the more attention to the additional penalties and community on the principle of regular mandatory treatments, chemical castration and management their stay, travel and contact; community monitoring. giving in time and prompt warnings for the society, coordinating with mental institutions to record psychiatric changes References and conditions as well as the effectiveness [1] H. Richard Lamb and Linda E. 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Conclusion Disorder and the Criminal Justice System: A Review‟, International Journal of Law and Securing mental health embraces a huge Psychiatry, Vol. 12. 105-l 15, 1989. importance for the well- being of all [3] Annual Reports of The People Supreme Court in individuals; in a normal environment, 2012, 2013, 2014. protection of mental health and dealing with [4] Marc Lehmann, „Psychiatric care in the German mental disorders are difficult, let alone in the prison system‟, International Journal of Prison Health, Vol.8 No. 37/4 2012, 135. detaining environment, the mental health of [5] Andrew Coyle, „Understanding Prisons, Key inmates is difficult to be guaranteed as well as issues in policy and practice‟, Open University handled at the occurrence of diseases. Press, 123. Mental disorder can exacerbate a prisoner s‟ [6] Annual Reports of The Government on Execution detrimental health and environment, leading to of Judicial Judgments in 2014. a failure in achieving the goal of criminal [7] Andrew Coyle, “Understanding Prisons”, Open reforms and social security. Mental ailments University Press, 61. resulting in sexual disorders and then the [8] Andrew Coyle, “Understanding Prisons”, Open execution of sexual offenses, if not resolved, University Press, 61. will lead to ineffectiveness in crime handling [9] Andrew Coyle, “Understanding Prisons”, Open and failure in preventing the risk of increasing University Press, 62. this issue. Consequently, despite its institutional [10] European Commission, The SANCO Directorate General, Central Institute of Mental Health, effort in addressing the issue, Viet Nam calls „Research Project Mentally Disordered Persons in for more information from the practice of other European Prison Systems - Needs, Programmes countries which have been working on this. and Outcome (EUPRIS)‟, Final Report ( October Situations in Germany, the United States, 31, 2007), 51. the United Kingdom, Denmark and other [11] European Commission, The SANCO Directorate nations are diverse, whereas in general they are General, Central Institute of Mental Health, „Research Project Mentally Disordered Persons in all aware of the complexity and seriousness of European Prison Systems - Needs, Programmes mental illness the criminals are facing, at the and Outcome (EUPRIS)‟, Final Report ( October same time, they are all more prosperous and 31, 2007), 51. developed than Viet Nam in terms of economic [12] H. Richard Lamb and Linda E. Weinberger, and medical conditions. Although their „Persons with Severe Mental Illness in Jails and L.L. Chi / VNU Journal of Science: Legal Studies, Vol. 33, No. 4 (2017) 11-24 23 Prisons: A Review‟, published online: April 01, and Outcome (EUPRIS)‟, Final Report ( October 1998 https://doi.org/10.1176/ps.49.4.483 (cited 31, 2007), 119. from Steadman HJ, Cocozza JJ. Seattle, National [20] The European Committee for the Prevention of Coalition for the Mentally Ill in the Criminal Torture and Inhuman or Degrading Treatment or Justice System, „Illness in America's Prisons‟ Punishment (CPT), Report to the German 1993). Government on the visit to Germany carried out [13] U.S. Department of Justice, Office of Justice by from 25 November to 7 December 2010, 56. Programs, Bureau of Justice Statistics, „An [21] Fred S. Berlin, „Sex offender treatment and Analysis of Data on Rape and Sexual Assault, Sex Legislation‟, J Am Acad Psychiatry Law 31:510– Offenses and Offenders‟ 13, 2003; Scott CL, Holmberg T, ‘Castration of [14] Roger H. Peters, Harry K. Wexler, „Substance Sex Offenders: Prisoners‟ Rights Versus Public abuse treatment for adults in the criminal justice Safet Castration of Sex Offenders: Prisoners‟ system: Treatment Improvement‟ Protocol TIP 44, Rights Versus Public Safety‟ J Am Acad (U.S. department of health and human services, Psychiatry Law 31:502–9, 2003. Public Health Service, Substance Abuse and [22] Compelling Chemical Castration Statistics, Mental Health Services Administration, Center for Substance Abuse Treatment). chemical-castration-statistics [15] Marc Lehmann, „Psychiatric care in the German [23] European Commission, The SANCO Directorate prison system‟, International Journal of Prison General, Central Institute of Mental Health, Health, Vol. 8 No. 37/4 2012, 135. „Research Project Mentally Disordered Persons in [16] Section 126 of German Prison Act: “The number European Prison Systems - Needs, Programmes of specialist staff for the socio-therapeutic and Outcome (EUPRIS)‟, Final Report (October institution shall be such as to also secure after- 31, 2007), 134. care for the prisoners to the extent that such care [24] European Commission, The SANCO Directorate cannot be otherwise guaranteed”. General, Central Institute of Mental Health, [17] Center for Substance Abuse Treatment. „Research Project Mentally Disordered Persons in „Substance Abuse Treatment for Adults in the European Prison Systems - Needs, Programmes Criminal Justice System‟, Treatment and Outcome (EUPRIS)‟, Final Report ( October Improvement Protocol (TIP) Series, No. 44. 31, 2007), 120. [18] European Commission, The SANCO Directorate [25] Thuỷ Lâm, „Alarming issue: nearly 14 million General, Central Institute of Mental Health, Vietnamese are mental disorders and solution „Research Project Mentally Disordered Persons in (“Báo động: Gần 14 triệu người Việt bị rối loạn European Prison Systems - Needs, Programmes tâm thần và giải pháp”), and Outcome (EUPRIS)‟, Final Report ( October 31, 2007), 125. nguo-i-vie-t-bi-roi-loan-tam-tha-n-277487.html. [19] European Commission, The SANCO Directorate [26] Thu Hạnh, „Nearly 14 million Vietnamese are General, Central Institute of Mental Health, mental disorders‟ (“Gần 14 triệu người Việt bị rối „Research Project Mentally Disordered Persons in loạn tâm thần”), https://laodong.vn/dien-dan/bao- European Prison Systems - Needs, Programmes dong-gan-14-trieu-nguoi-viet-bi-roi-loan-tam- than-va-giai-phap-633032.bld 24 L.L. Chi / VNU Journal of Science: Legal Studies, Vol. 33, No. 4 (2017) 11-24 Chính sách đối với phạm nhân, người thực hiện các tội phạm về tình dục với các rối loạn tâm thần: Thực tiễn tại Đức, một số quốc gia khác và các khuyến nghị đối với Việt Nam Lê Lan Chi Khoa Luật, Đại học Quốc gia Hà Nội, 144 Xuân Thuỷ, Cầu Giấy, Hà Nội, Việt Nam Tóm tắt: Các rối loạn tâm thần tác động tiêu cực đến quá trình chấp hành án của phạm nhân và người thực hiện các tội phạm về tình dục cũng như đến việc thực hiện mục tiêu cải tạo và kiểm soát tội phạm. Do đó, nhiều quốc gia trên thế giới đã có những chính sách đặc thù đối với các đối tượng này. Bài viết góp phần làm rõ cơ sở, nội dung của những chính sách đó và đưa ra các khuyến nghị đối với Việt Nam nhằm góp phần bảo đảm quyền con người cũng như giải quyết những vấn đề hữu quan của thực tiễn tư pháp hình sự ở Việt Nam hiện nay. Từ khoá: Rối loạn tâm thần, phạm nhân, môi trường giam giữ, trị liệu tâm l , tội phạm về tình dục, hình phạt, triệt dục hoá học, triệt dục phẫu thuật.