Forgetting Freud: The Courts' Fear of the Subconscious in Date Rape (and Other) Criminal Cases


Courts too often show a reluctance to learn the lessons taught by social science in criminal cases, especially where subconcious processes are involved. The subconscious is seen as rarely relevant and, in the unusual cases where it is relevant, it is viewed as a disease commandeering the conscious mind and thus helping to exculpate the accused. Drawing on the example of forensic linguistics in date rape cases as illustrative of a broader phenomenon, this article argues that the courts' misuse of social science stems from fear and misunderstanding of the workings of the subconscious mind. Accordingly, the piece contrasts the "folk subconscious" vision embraced by the courts -- one in which the conscious is our "true self" -- with the "scientific subconscious" -- one in which the conscious and subconscious minds reciprocally interact in a single person. The piece further examines the implications of each view for the substantive criminal law and the law of evidence. The article also explores the consequences of the theory of "memes" -- ideas as viruses -- for free will and criminal culpability. The article finally examines the political implications of each view concerning the nature of the citizen in a modern republic and concludes with suggestions for change.


Criminal Law | Criminal Procedure | Evidence | Law and Psychology | Law and Society | Sexuality and the Law

Date of this Version

July 2006