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

63 Pages Posted: 18 Jul 2006

See all articles by Andrew E. Taslitz

Andrew E. Taslitz

American University - Washington College of Law

Date Written: July 11, 2006


Trial and appellate courts are often very resistant to using the lessons of social science in crafting substantive criminal law and evidentiary doctrines. Using the courts' refusal to accept the teachings of cognitive scientists and forensic linguists in date rape cases as an example, this article argues that the courts misunderstand and fear the subconscious. They rely on a folk concept of the subconscious mind as sharply distinct from consciousness, inscrutable, frightening, and generally irrelevant to criminal responsibility because the healthy mind is one in which consciousness runs the show. Only in extreme cases of mental disease is the subconscious usually relevant, for it then manages to wrest control from the conscious mind. Subconscious processes can in these few extreme cases, such as with the insanity defense, exculpate but never inculpate. Relatedly, evidentiary doctrines display distrust of experts on the subconscious mind, resistance to the value of social scientific generalizations, confusion about the value of jury instructions, and a hesitancy to part with tradition.

This article contrasts the folk subconscious with the scientifically-informed one. The scientific subconscious is a spectrum rather than half of a dichotomy (with consciousness being the other half). This subconscious interacts with consciousness in a reciprocal way in even the healthiest of minds. Some sorts of subconscious thoughts are accessible to consciousness in individual cases. Furthermore, even a person who does not know his subconscious mind can influence it by consciously gathering relevant information and altering his behavior, processes that over the long run change the subconscious to be closer to our conscious ideals. These insights have implications for substantive criminal law culpability doctrines and evidentiary ones that turn modern approaches on their head, holding persons responsible for all of who they are, at the subconscious and conscious levels alike, as the article details.

Keywords: Subconscious, unconscious, cognitve, rape, sexual assault, social science, experts, freud, responsibility, culpability, memes, democratic

Suggested Citation

Taslitz, Andrew E., Forgetting Freud: The Courts' Fear of the Subconscious in Date Rape (and Other) Cases (July 11, 2006). Available at SSRN: or

Andrew E. Taslitz (Contact Author)

American University - Washington College of Law ( email )

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Washington, DC 20016
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