Criminal Law in a Post-Freudian World

Abstract

Freudian psychoanalytic theory has greatly influenced the modern definition of criminal culpability. Indeed, much of the language of key criminal statutes, cases, and psychiatric testimony is framed by psychoanalytic concepts. This impact is particularly evident in the Model Penal Code's mens rea provisions and defenses, which were developed in the 1950s and 1960s, a time of Freudian reign in the United States. For contemporary criminal law, however, this degree of psychoanalytic presence is troublesome. Freudian theory is difficult to apply to group conflicts and legal situations, and the theory emphasizes unconscious (rather than conscious) thoughts. The rising new science of consciousness and conscious will provides continuity with Freudian theory. Yet, in contrast to Freudian principles, this new science offers criminal law a means of enlightening existing mens rea doctrine with advanced discoveries that more easily comport with human behavior and evidentiary standards. The results of this author's unprecedented statewide study of criminal jury instructions also suggest that courts are wrong to distort or reduce the significance of mens rea in the ways juries interpret criminal cases. This article concludes that current consciousness research provides a sound vehicle for criminal law doctrine to return the law's focus to the defendant's mental state, thereby retaining the moral insights, but not the muddle, that Freudian theory originally contributed.