By Ezio Di Nucci
Just as the patriarchy always finds novel (and often surprising) ways of oppressing women, men appear to have the uncanny ability to continue to find new ways of raping them.
Sleepraping or, as it is sometimes called – but shouldn’t be – sexsomnia is men using a sleepwalking defense in rape cases. If you are thinking – and I for one very much hope you are not – what does this have to do with SRH? The answer is simple: if obstetric violence belongs to SRH, sexual violence certainly does too.
There probably aren’t many philosophers out there who’ve written about sleepwalking and responsibility (ciao Filippo!), so I feel the burden of having to put this one away myself.
Let us start with the easy stuff: sleeping next to someone is, obviously, no permission to rape them. Nor is it an excuse or, indeed, a mitigating circumstance.
Next: neither is being given permission before the person falls asleep, because they might have changed their mind in the meantime. This one seems as obvious to me and, again, no excuse either – whether it should count as mitigating circumstances in court might be slightly more debatable, but I would think that falling asleep interrupts the validity of consent.
What makes the above two cases “easy” to deal with (only philosophically, nota bene), is that the perpetrator clearly meets the conditions for responsibility. However, the sleepwalking defense challenges the idea that the perpetrator knew what he was doing.
As an aside, there is a good argument for the above cases being worse than “normal” rape, namely that the victim being asleep makes the attack easier and resisting more difficult.
Because we are doing philosophy, here the following case is similarly uninteresting: a case in which the perpetrator – or their lawyer – falsely appeals to sleepwalking as a defense, namely the attacker was not sleepwalking but claims they were – or their lawyer does (which is possibly worse?). That’s just lying on top of rape.
The only philosophically interesting case, then, is the one where a man rapes a woman while genuinely sleepwalking. And the philosophically interesting question is not just the one about that man’s responsibility, but whether that counts as rape and why.
I think it does qualify – and the reason is patriarchy. To see this, remember that classic case from Canada discussed in our already cited paper, which tells the story of Kenneth Parks, a Canadian man who was acquitted for the murder of his mother-in-law in 1987 on the grounds that he was sleepwalking during the act. The victim just happens to be the attacker’s mother-in-law? Yes, I know. Seriously. If it weren’t for – you guessed it – patriarchy, one could almost make a joke.
No jokes though: the serious point is that it’s maybe no coincidence that of all the people one could have stabbed while sleepwalking, the victim is one’s own mother-in-law, more than 20km away.
When it comes to sleepwalking and rape, that point translates to this: men are, under the patriarchy, in the habit of raping women. Therefore, it is no surprise that they would do it, literally, in their sleep. It just testifies to how deeply entrenched patriarchal structures are, inside and out.
That these habits continue to all too often go unchallenged is not just what props up patriarchy, it is also what makes sleepwalking rape a genuine case of rape. After all, doing something out of habit gives you more agency and ownership, not less – so no excuses either. In Aristotelian language, what you do out of habit comes naturally to you (second nature).
Let us conclude this short rant of an argument by dealing with an objection, namely that being too conceptually inclusive is itself problematic. And that in the case of rape this is particularly dangerous because rapes are already so difficult to persecute and convict. So that an exclusive concept of rape is methodologically important – both for philosophy and for the law.
That’s the kind of argument you could have against so-called cyber-rape, for example. But, first, sleepraping is in a sense the opposite of cyber-rape, where the mens rea (intent, basically) criteria is unchallenged but the action is more disputed. While here the action is as old as patriarchy itself, while mens rea is a bit more complex.
That’s the less important response though: the more important point is that introducing the concept of sleepraping doesn’t mean being inclusive about the concept of rape, for the very reason that doing something out of habit gives you more – rather than less – agency, by expressing your true – unfiltered – nature.
By the way, our argument goes through even on a weaker version of the claim, according to which habitual actions don’t result in diminished responsibility; even though our point here is a conceptual one about what counts as rape rather than a normative claim about responsibility for particular instances. So, it’s rape, “just” rape.
About the Author
Ezio Di Nucci is a philosophy professor at the University of Copenhagen.
Competing interests: None declared