Sexsomnia is simply a variant of sleepwalking, which affects 1 to 2% of adults. … The woman awoke to discover that her underwear had been removed and a glassy-eyed Luedecke was trying to rape her. She pushed him off, ran to the washroom, and returned to find him standing there bewildered. Luedeke, who had an established history of sleepwalking behaviors, was acquitted after [a] psychiatrist … testified … [that he] was in a dissociative state when the incident occurred and therefore he was not consciously aware of his actions. (more)

Should we punish ordinary rape severely yet entirely forgive sleep-rape? More generally, should we punish harms chosen by an unconscious mind much less severely than harms chosen by a conscious mind? I can see two arguments, but both fail I think.

The first argument says we should punish “intentional” harms more. Assume that law tries to encourage people to adopt efficient levels of care. Then note that purposely planning and carefully directing actions to create harm seems quite clearly far below an efficient level of care to prevent harm. Finally, conclude that it makes sense to punish planned harms more severely than harms which might more plausibly be accidental.

To conclude from this that unconscious acts should be forgiven, however, one must presume that unconscious mind harms are unplanned or are accidental side effects of other plans. Yet almost all conscious plans are first made unconsciously. So why should we presume unconscious acts are never planned?

The second argument divides a human mind into conscious and unconscious parts, and then complains that it is unfair to punish the conscious part for acts of the unconscious part, over which it might have had no control. Consider, however, an analogy with a married couple. When we punish a married person who has committed a crime, their spouse is usually punished as well. Fine and jail that take away resources from a criminal also take away resources from their spouse.

We are mostly ok with punishing spouses along with criminals. People choose their marriage partners, and have many opportunities to monitor and encourage good behavior from spouses. So punishing spouses gives them incentives to monitor and encourage well. But conscious minds also have opportunities to monitor and encourage associated unconscious minds. In fact, there are probably more such opportunities with a single person’s head than within a married couple. This suggests that we should thus punish conscious minds for associated unconscious actions at least as much as we effectively punish criminal spouses.

I wonder how our eagerness to excuse unconscious rule violations is related to our more general homo hypocritus eagerness to reserve possible excuses for our and allies’ future rule violations.

Added 11:30a: Like drunks, sleepwalkers seem somewhat incapacitated, so perhaps they should be excused from crimes to a similar degree as drunks. More data:

A sleepwalking adult usually has eyes wide open, although they may have a glassy or dazed appearance.  While they may move around somewhat clumsily, their arms are not outstretched. … Sleepwalking adults have been known to rearrange furniture, talk on the phone, email, eat, clean house, play a musical instrument, and many other routine tasks.  Sometimes they will perform rather bizarre actions, like urinating in a trashcan or removing all the knick-knacks from living room shelves and lining them up around the bathroom sink. … sleep walking adults have been known to get in the car and drive, sometimes for long distances.  Oftentimes these road trips have resulted in serious auto accidents.  There are many stories on record of sleepwalkers falling from second story windows or roofs, seriously injuring themselves, or even dying from the fall. … In some rare instances, somnabulists have walked out into the middle of a busy street, or stepped in front of an oncoming train … [or] committed murder and other serious crimes. (more)