Sexual Choice

The right of sexual autonomy occupies a central place in our constitutional scheme of individual liberties. Consensual sexual relations, including fornication, adultery, and sodomy, now presumptively lie beyond the reach of law’s regulatory power. But as this chapter shows, there is one long-standing law banning consensual sexual relations that remains solidly on the books in every state: the prohibition on adult incest. The subject of adult incest opens the door to a psychoanalytic perspective on the right of sexual autonomy and the modern laws regulating sexual choice. The chapter explores how powerful unconscious forces deriving from the parties’ close familial relationship render the “choice” to have sex a potentially tragic illusion. Similar kinds of unconscious coercion can happen in other contexts as well. For example, the therapist-patient relationship also involves forms of unconscious coercion not known to the parties themselves, and deserving of some regulation. Understanding in close detail the unconscious dynamics in adult incest and the therapist-patient relationship can illuminate less obvious forms of sexual coercion in more common types of professional relationships. A psychoanalytic perspective has a crucial role to play in defining the range and meaning of sexual autonomy as a fundamental right in our constitutional culture.

Violent Threats

The law generally takes people at their word. For example, contracts are interpreted based on the objective meaning of the written terms rather than by reference to the parties’ subjective intent. In contrast, psychoanalysis rarely trades in literalisms, instead examining words for their hidden associations, connotations, implications, and ambiguities. This chapter explains how a psychoanalytic perspective on the meaning of words reworks the law’s presumption of transparency. The discussion focuses on the law governing violent threats communicated to therapists but directed at third parties, the so-called Tarasoff rule. Under this rule, when a patient says to her therapist, “I am going to kill him,” the law requires that the therapist take the patient at her word. But while the Tarasoff rule may protect some potential victims, a psychoanalytic perspective suggests that the rule may do more harm than good, in particular by discouraging those individuals who struggle with violent thoughts to seek treatment, thus raising the risk of their resorting to violence. Psychoanalytic insights into interpretive opacity, transference, regression, and acting out illuminate how the law’s pragmatic reliance on the literal meaning of words can undermine the law’s own goals to protect individuals from harm to themselves and others.

Guilty Minds

This chapter examines the puzzling question of why an otherwise rational person would voluntarily confess to a crime, knowing full well that the state will punish in return. Even more puzzling is the phenomenon of false confessions, where an individual inexplicably confesses to a crime she did not commit, in some cases believing in her own guilt. Psychoanalysis gives us important insights into these irrational phenomena. The focus in this chapter is on the ways in which certain deceptive and degrading police interrogation tactics may override a suspect’s conscious rational decision-making powers by enlisting unconscious needs, aggressions, and guilt. Three interrogation tactics are of greatest concern: false sympathy, degradation, and trickery. As this chapter shows, false sympathy and degradation exploit deep-seated, unconscious desires for absolution and punishment that undermine the voluntariness of a suspect’s self-incriminating statements. Similarly, police trickery can take unfair advantage of a suspect’s need to rationalize unconscious guilt for a crime he did not commit. By drawing attention to the risks associated with these methods, psychoanalysis ensures that the most egregious practices can be eliminated from our criminal justice system. Psychoanalytic insights into unconscious processes advances the law’s own best ideals of fundamental fairness in the criminal law.

The Psychoanalytic Tradition in American Law

This chapter surveys the long and important tradition of law and psychoanalysis in the United States beginning with the work of Oliver Wendell Holmes, Jr., up to the mid-twentieth century. While “tradition” may seem too strong a term for the diverse collection of psychoanalytic writings carried out by legal thinkers over the course of more than a half-century, what ties this work together is a shared recognition of the unconscious depths of the human psyche and the common questions that a psychoanalytic perspective on human behavior raises for law. As this chapter details, many early- to midcentury legal thinkers and judges turned to psychoanalytic ideas for help in addressing a broad set of concerns, including the value of free speech in a democracy, the processes of judicial decision-making, degrees of criminal responsibility, and child custody. The chapter focuses on those legal thinkers in this period whose attention was captured by the unconventional, sometimes even shocking, psychoanalytic ideas about the unconscious, guilt, free will, conflict, instinctual drives, sexuality, and early childhood experience. A study of the psychoanalytic tradition in American law is essential for understanding the vital contribution that contemporary psychoanalysis can make to law today.

Why Psychoanalysis Matters to Law

This chapter describes the contribution contemporary psychoanalysis has to make in three specific areas: legal theory, legal doctrine, and adjudication in the courtroom. Psychoanalysis improves the law’s theoretical foundations by modifying its foundational presumption of rationality. Psychoanalysis also helps to reform legal doctrine by identifying those particular subject matter areas, primarily family law and criminal law, where the law’s presumption of rationality leads to unjust legal rules. With domestic violence as its example, this chapter shows how psychoanalysis offers a body of practical knowledge that humanizes the law by bringing legal rules into line with actual, everyday lived experience. And finally, psychoanalysis reveals the deep tension between the law’s focus on individual moral responsibility for behavior and the law’s objective methods of proof in the courtroom. Psychoanalytic insights into the art of proving what really happened in a case can move law in the direction of a more empathic and forgiving model of judging. Overall, the psychoanalytic study of the law unveils the damaging consequences of the law’s rationalist assumptions about who we are as human beings, and offers an alternative, humanistic perspective in line with law’s foundational ideals of individual freedom and systemic justice.

Conclusion

The conclusion to this book situates the study of law and psychoanalysis in relationship to two dominant and related trends in legal thought: the behavioral law and economics movement and liberal legal theory. Psychoanalysis joins up with but also importantly modifies the portrait of the individual drawn by these contemporary legal fields of knowledge. In relying on cognitive psychology, the behavioral law and economics movement remains wedded to the rationality paradigm, overlooking the complex dynamic workings of the unconscious and its resistance to any efforts to “debias” cognitive thinking. Relatedly, liberal legal accounts of the autonomous legal actor fail to recognize the conflicted, unstable, contingent dimension to selfhood. In alliance with more critical perspectives in feminism, critical race theory, and queer studies, a psychoanalytic perspective modifies the liberal ideal of the rational, autonomous individual by providing a thick description of the self and its relationship to the world. This chapter concludes the book by reiterating the vital relevance of psychoanalysis to law: how psychoanalysis offers the opportunity for a deep fruitful engagement between two disciplines—law and psychoanalysis—both engaged with the humanistic project of understanding how and why people think and behave the way they do.

Children’s Rights

This chapter describes how psychoanalysis has a vital contribution to make to the field of children’s constitutional rights. In general, children do not enjoy the same autonomy rights as adults, a state of affairs reinforced by robust protection for parents’ constitutional rights to raise their children as they see fit. Moreover, the Supreme Court has rejected the idea that children have affirmative rights to care and safety based on their special status as children. A psychoanalytic perspective alters the current framework for children’s rights by recognizing children’s affirmative claims to caregiving, to relationships with siblings, to physical and emotional safety, and to rehabilitation in the juvenile justice system. This chapter refers to these rights as “transitional rights,” that is, rights that recognize children’s experience as persons in the here and now as well as their experience as individuals developing along a trajectory toward adult citizenship. Transitional rights include those positive entitlements—to maintain relationships with adults and other children, to safety in the home and school, and to rehabilitation in the criminal justice system—tied to children’s special status as children. In this way, psychoanalysis opens up a more relational, constitutive, affirmative role for rights in constitutional law.

Introduction

This introductory chapter describes the enduring ways in which law fails to account for the complexity and richness of our unconscious lives. Law relies on a presumption of rationality, that is, the idea that individuals are freely choosing subjects who make conscious decisions that reflect their beliefs and desires. Yet this presumption of rationality fails to explain the many puzzles that arise in law: Why do people commit crimes with a high likelihood of being caught? Why do they violate their own moral code, or remain willfully blind to unwanted facts right in front of their eyes? Why do they repeatedly and inexplicably act in self-undermining ways? As shown here, the resulting gap between the law’s false portrait of the human mind and the lived reality of subjective experience often leads to ineffective, unrealistic, and unjust legal rules and outcomes. With its compelling, clinically grounded account of the workings of unconscious life, psychoanalysis has a major contribution to make to law, beginning with the areas of family law and criminal law. This introduction explains that, despite Freud’s tarnished reputation today, contemporary psychoanalysis offers the opportunity to reform legal doctrine and theory in ways that foster a more humane, psychologically informed and fundamentally just system of laws.

Intimate Contracts

The prevailing model of contract law presumes that fully informed decision-makers exercise free and voluntary choices to further their conscious preferences and goals. The model makes sense in the context of commercial relationships. But family contracts—prenuptial agreements, separation agreements, adoption agreements, surrogacy contracts, and contracts between intimate partners—are another matter. Psychoanalysis invites us to examine the ways in which the prevailing free choice model fails to acknowledge the troubling influence of unconscious factors on the formation and breach of intimate contracts. As this chapter explains, psychoanalysis uncovers the subjective drama of intimate contracts: the role of fantasy and memory in constructing present reality; the need to replay and to master old traumas; the ambivalences, conflicts, and paradoxes of unconscious life. Psychological phenomena in the form of unconscious fantasy, transference, repression, attachment, regression, splitting, and resistance can color, distort, and undermine the parties’ decisions to enter into, and later abide by, intimate contracts in ways that go well beyond the ordinary commercial setting. By studying prenuptial agreements and surrogacy contracts carefully, this chapter sheds new light on the ways law can and should take psychoanalytic insights into account when regulating the formation and enforcement of these intimate agreements.

Psychoanalysis and Free Will

This chapter addresses the widespread misconception that psychoanalytic ideas about the unconscious are incompatible with the law’s presumption of free will. Free will is a foundational concept in the law. We take it as a necessary postulate of our legal system that most individuals make conscious decisions about how to behave and, consequently, can and should be held accountable for their actions. Yet psychoanalytic ideas about the influence of the unconscious on waking life would seem to render successful collaboration between law and psychoanalysis impossible, for how can a person exercise free will while subject to the unavoidable and unrelenting control of the unconscious? But as this chapter shows, this conclusion is simply wrong. Using a case involving a woman prosecuted for drug trafficking despite having been ignorant of the drugs in her car, this chapter explains why the conflict thesis does not accurately reflect psychoanalytic ideas about the unconscious. The thesis rests upon three misguided assumptions: that the psychoanalytic unconscious is deterministic, irrational, and opaque to understanding. Properly understood, a psychoanalytic perspective on the unconscious leads us toward a more realistic, less harshly punitive, and more just criminal jurisprudence.