Criminal Law in a Post-Freudian World

Freudian psychoanalytic theory has had a predominating effect on the development of important criminal law concepts of culpability. In-deed, a large portion of the language of key criminal statutes, cases, and psychiatric testimony appears to be framed by psychoanalytic concepts. This impact seems particularly evident in the Model Penal Code’s mens rea provisions and defenses, which were developed in the 1950s and 60s, a time of great Freudian psychoanalytic influence in the United States. For modern day criminal law, however, this degree of psychoanalytic in-put is troublesome. Freudian theory is difficult to apply to group con-flicts and legal situations, and it focuses on unconscious (rather than conscious) thoughts. In contrast, the new science of consciousness and conscious will provides continuity with Freudian theory, while at the same time offering modern criminal law a means of enlightening existing mens rea doctrine and defenses with advanced discoveries that more easi-ly comport with group behavior and evidentiary standards. Recent con-sciousness research also suggests that efforts to distort or reduce the sig-nificance of mens rea in the criminal law arena are unwarranted. In es-sence, consciousness research provides a more precise way in which crim-inal law can benefit from Freudian psychoanalytic theory’s moral in-sights by returning the law’s focus to intentional mental states.

The full text of this Article is available to download as a PDF.