Blaming rape on sleep: A psychoanalytic intervention

The governance of sleep sex (or sexsomnia) in the criminal law is a nightmare. Press reports of sleeping, often drunk, men acquitted as automatons of raping adults and children suggest cases are rising. The use of automatism, rather than insanity, in these cases is strong evidence of the immemorial struggle faced by legal psychiatry in appropriately construing unconscious defendants. This paper responds by drawing on well-established psychoanalytic conceptions of unconsciousness to present sexsomnia as dispositional to the defendant. Taking the Freudian concepts of eros and death instinct, it asserts that sexsomniacs are acting on repressed sadistic desires. Accordingly, those on notice of their sexsomnia, who fail to mitigate the risk of further attacks, should be guilty of rape. Reliance on (a reformed) insanity defence - being a denial of responsibility at the time of the offence - undermines the scope of the criminal law to self-responsibilise sexsomniacs against perpetrating unwanted sex.