The Victimised Body: Sexual Violence, Incapacity, and the Materialisation of Unconscious Bodies in Rape Verdicts

This article considers the relationship between body and crime, particularly the body of the victim and the crime of sexual violence. Most studies have focused on the relationship between the body of the perpetrator and the crime they have committed, in particular how forensic technologies have contributed to materialise the ‘criminal body’. The body figures in different shapes in the legal system, and the law deploys different knowledges to make sense of it. In this article, I focus on how the victim’s physical body becomes a readable entity that the courts evaluate in legal deliberation regarding incapacitated rape. I show how the courts through commonsensical reasoning add meaning to bodily (in)activity and separate the body from the mind in their interpretation of the victim’s (in)capacity to resist unwanted sexual acts. Incapacity is in this way materialised as a passive and limp body, that is, a dormant or unconscious body.


Introduction
The relationship between body and crime has a long history, dating back to Lombroso's phrenology in the late 1800s and early 1900s.Lombroso compared the physical bodies of criminals and non-criminals and developed a list of traits that could determine whether a person was born a criminal (Walby and Carrier, 2010).The idea that bodily traits can identify criminals has been at the heart of biological theories of crime.It was this idea that contributed to the development of fingerprinting, a forensic identification technology widely used today (Cole, 2001).Although biocriminology has been criticised for being simplistic and deterministic, it has experienced a renewed interest with the development of DNA technology (Granja et al., 2021).However, as pointed out by Granja et al. (2021), there has been a significant shift in the development of approaches to make the body a readable entity.Whereas early approaches focused on the molar body, that is, the visible and tangible body, recent developments have turned to the molecular level, rendering the interior of the organic body readable through sophisticated biometric technologies and visualisation devices.Through this shift, the figure of the 'criminal body' has continued to materialise something which has evoked ongoing criticism (Cole, 2001;Granja et al., 2021;Walby and Carrier, 2010).Related to the materialisation of the 'criminal body' is the materialisation of 'crime' and 'the victim' (Kruse, 2010).
The materialisation of the victim's body is particularly evident in cases of sexual violence, because in these cases the victim's body is both a crime scene and evidence (Laugerud, 2020a;Mulla, 2014;Smart, 1995).After a rape, the victim's body is examined by forensic medical examiners who collect bodily traces that are analysed for DNA and toxins and search the body thoroughly for marks and bruises that indicate the use of force during the assault (Mulla, 2014;Quinlan, 2017;Shelby, 2020).Thus, the forensic medical examination considers the victim's body at both the molecular and the molar level.The victim's physical body further appears in legal deliberations through commonsensical reasoning as part of the evaluation of evidence in a case.The victim's body, particularly its size, shape, and strength, is scrutinised to consider whether it is in fact a raped body (Laugerud, 2020a).This means that forensic and legal practices of evidence collection and interpretation create a victimised body that is legible in the sense that it can easily be recognised through a reading of the surface of the body that is both shaped, marked, and stained by the perpetrator's criminal act and bodily tissue and fluids (Laugerud, 2020b).
In this article, I want to add to this knowledge of bodies as readable entities by analysing how the victim's body appears in legal deliberations of incapacitated rape.In the Norwegian rape provision, which is the focus of this article, incapacity refers to bodies that are 'unconscious or for other reasons incapable of resisting the act [of rape]' (The Penal Code of 2005, section 291b).Here, unconsciousness does not refer to a state of coma or other medical conditions, but to a state of incapacity, such as a lack of ability to resist unwanted sexual acts.The legal formulation is rather vague, but legal preparatory work and practice suggest that it at least includes bodies that are asleep or intoxicated.In a previous article, Houge and Laugerud (2023) argued that legal deliberations regarding incapacitated rape seem to require few experts or expert knowledge.Instead, sleep and intoxication seem to be issues of common knowledge and common sense.This implies that the molecularised body assembled retrospectively by analysing traces of biological matter to establish the degree of intoxication, such as blood samples, matter less than do witness testimonies in legal deliberations regarding incapacitated rape.Thus, legal practice is less concerned with the calculated concentration of alcohol in urine/blood and standardised estimates of bodily behaviour during reduced consciousness due to alcohol or sleep but rather value witnesses' observations of how bodies (re)act during alcohol consumption and/or dormancy.Therefore, it is the observable bodily features of (un)consciousness that are discussed in legal deliberations regarding incapacitated rape.Here, I want to elaborate on the construction of meaning of the physical body in the legal processing of rape.I investigated how the victim's body materialises in the court's construction of incapacitated rape.I analysed Norwegian rape verdicts that include legal deliberations of incapacitated rape.

Reading and Making Sense of the Victim's Body Through Common Sense and the Sociology of Sleep
The ways in which the victim's body appears in the legal processing of rape have been studied less than has the 'criminal body'.Nevertheless, both the interiority and the surface of the physical body may appear depending on the expertise present.The law utilises both expert knowledge and common sense in the prosecution of rape and other crimes.According to Valverde (2003), sociological studies of knowledge practices in legal arenas have primarily focused on scientific knowledge and rarely on non-expert knowledge.Following Valverde (2003), I will consider the kind of non-expert knowledge the law deploys to gather information about the body.Common sense, an important part of court deliberations (Cochran, 2013;Laugerud, 2020a;Moran, 2003), is a form of reasoning that is based on what is perceived to be common and experience-based knowledge.Commonsensical reasoning invokes informal norms of what is considered normal, appropriate, and desirable (Laugerud, 2020a;Moran, 2003).The rhetoric of common sense is that it is both intuitive and self-evident, which make it particularly powerful and difficult to challenge.Applying commonsensical reasoning in legal deliberations of incapacitated rape, particularly in the context of sleep and intoxication, means that experience-based knowledge, common knowledge, and norms regarding sleep and intoxication become relevant in judging the state of the complainant's body.
The body figures in different shapes in legal discourse -in discursive constructions, metaphors, and similes (Hyde, 1997).Turner (2003: 1) pointed to how '[b]ody metaphors illustrate the fact that we use the body as a convenient way for talking or thinking about moral and political problems of society'.According to Hyde (1997), the body is a bearer of narratives; that is, it has a story to tell and secrets to reveal.On its surface, inside its cavities, and in bodily tissue and fluids lie tales of crimes committed.Hyde (1997) showed, for instance, how bodily waste such as urine can reveal illegal drug use, and Valverde (2003) pointed to how semen can leave 'telltale stains' in indecency cases.Hyde (1997) described how the legal gaze puts certain bodies and body parts on display.For instance, legal discourse constructs the vagina as a hiding place, full of secrets but open to the legal gaze and searchable for drugs (and semen, I might add) to reveal crimes such as smuggling (and rape) (Hyde, 1997).The law, according to Hyde (1997), is particularly good at constructing bodies that it claims represent others, which it evaluates in turn.This is especially evident in cases of incapacitated rape.
In the forthcoming analysis, it is symbolic meaning constructions, which become relevant.This means that the body becomes a medium of meaning in which symbolic constructions are created through metaphorical connections (Douglas, 1996;Solheim, 1998).In this symbolic medium, there is a continual transfer of meaning, which creates ambiguity that allows for different interpretations of bodily representations.
It is the dormant body in particular that is scrutinised in verdicts of incapacitated rape.Dormancy or sleep tend to be perceived as inactive and asocial beings, while at the same time, the meaning, motives, and methods of sleep tend to create common concerns (Taylor, 1993;Williams and Bendelow, 1998).This means that sleep may be understood as an activity filled with expectations and norms of what constitutes appropriate sleep (Williams, 2007).Sleep is bestowed with symbolic value and moral significance, such as when a night's sleep may be considered a 'fresh start' that washes away minor sins and cares (Williams and Bendelow, 1998).There are symbolic associations between sleep, sexuality, and death, as seen in expressions such as 'sleeping together' and 'rest in peace'.These associations are strengthened by cultural expressions that eroticise corpse-like images of women, such as models posing as seemingly sexually assaulted dead bodies (Heyes, 2015;Oliver, 2016).Heyes (2015) characterised this as a form of necrophiliac aesthetic that has contributed to normalising images of eroticised unconscious female bodies.The connections between sleep and sex are further reinforced through the ways in which sleep is organised in society.For example, the privatisation of sleep in terms of separate bedrooms has welcomed sex as a bed-and night-time activity initiated before and after sleep (Aubert and White, 1959a;Taylor, 1993).However, the privatisation of sleep was intended to protect sleepers from dangers outside, since when asleep one is exposed to danger (Aubert and White, 1959b).Accordingly, to fall asleep is to make oneself vulnerable (Taylor, 1993).To protect oneself, one should avoid sleeping in public spaces or around awakened bodies.
When the body appears in law, it is implicitly separated from something else, such as the person's mind (Hyde, 1997).In this way, the materialisation of the body simultaneously dematerialises the mind.The split between body and mind has been criticised for not taking into account people's -especially women's -lived experiences.Rather than considering how experience is embodied, women have more often been tied to their bodies and to nature in a way that has limited their being (Williams and Bendelow, 1998).Building on existential phenomenology, Williams and Crossley (2008) considered subjectivity and experience to be embodied.Embodiment refers to how our being in and experience of the world is through our bodies.'My body is not something "I" "have", but is the condition of any I' (Heyes, 2015: 367).Here, embodiment points to how the body enables possibilities of being and acting.This means that agency and capacity to act are embodied.Embodiment suggests that the mind cannot be separated from the body and that bodies cannot be separated from society (Williams and Bendelow, 1998).Through an embodied lens, unconsciousness or sleep constitutes a loss of grip upon the world, a kind of 'failure to be there fully in body' (Williams and Crossley, 2008: 2-3).Similarly, Leder (1990: 58) depicts it as 'a being recessed from my command and awareness'.
Sleep has further been characterised as a liminal state, an inbetween state somewhere between wakefulness and death (Williams, 2005).Here, I point to another liminal state: the transitional state between wakefulness and sleep that occurs when falling asleep and awakening, including in-between positions that one might drift into, such as drowsiness and 'nodding off' (Schwenger, 2012;Williams and Crossley, 2008).The liminality of wakefulness and sleep points to the difficulty of knowing exactly when one slips over the border (Schwenger, 2012).The preliminary signs of sleep are lethargy of the limbs and a loosening of our associative processes.Transitional states have been characterised further as recessive beings with a sensitivity to outer stimuli (Leder, 1990).This duality creates an ambiguity that complicates the interpretation of liminal states.Liminality, according to Stenner (2021: 3), 'involves a temporary suspension of limits that permits a transition to a new set of limits'.In this sense, it can be characterised as a 'process of becoming'.Liminality can be described further as each of 'both/and' and 'neither/nor', since being both awake and asleep simultaneously means neither awake nor asleep.The complexities of sleep and the symbolic meanings of the sleeping body allow for a range of interpretations that shape the ways in which the courts evaluate incapacity in relation to rape.

Methods
In this article, I analysed written legal verdicts in rape cases in Norway.This analysis builds upon a previous study conducted with Houge and Laugerud (2023), in which we analysed legal verdicts regarding incapacitated rape in Norwegian appellate courts.We accessed the verdicts through the Lovdata database, which contains all appellate court decisions in Norway.We searched for the cases by using the following truncated terms, 'unconscious*', 'incapa*', and/ or 'resist*' (translated for this article), while also limiting the search to criminal cases, appellate courts, and the given time frame and restricting our extraction to the proper section of the penal code (LOV-2005-05-20-28- §291).We selected all the verdicts that we could find in the database concerning incapacitated rape from January 2019 to December 2020.We excluded cases concerning minors (under the age of 16), incestuous relations, and/or sexual assault that formed part of a regime of domestic violence.We ended up with a total of 67 legal verdicts.Of these, 15 were acquittals and 35 were dissent based, meaning that the panel of judges had disagreed on whether they should convict or acquit.A panel of judges consists of two legal and five lay judges who together make a decision based on the evidence in the case.The voting rules state that five judges must vote for conviction to convict a defendant.This means that if three or more judges vote for acquittal, the defendant will be acquitted.In every case, the panel of judges should explain their rulings in their written verdicts.A rape verdict is usually about five pages long.It includes the indictment, legal references, a description of the case development, a summary of the case, and finally, a decision on the question of guilt with arguments supporting the decision.A dissenting decision includes an explanation of both points of view.This written text constitutes the data I analysed in this article.Written verdicts are intended to represent the decision-makers' stated reasons and justifications for the decision, not necessarily their views on bodily (in)activity.Still, this is the main topic that appeared in the judges' reasoning on incapacity across the verdicts.
I conducted a qualitative document analysis of the written legal verdicts.My point of departure is that documents do something; they establish facts, define phenomena, and make conclusions in institutional contexts (Asdal and Reinertsen, 2020).From this perspective, they are not simply a passive source of information.Still, legal verdicts are often drawn upon to obtain the 'facts' of or 'truth' about a crime.Legal texts are also a source of legal discourse and meaning (Niemi-Kiesiläinen et al., 2016).Accordingly, I analysed meaningmaking practices in legal deliberations and focus specifically on how the courts add meaning to the bodies of rape victims in their construction of incapacitated rape.How a legal decision is formulated, argued, and justified tells the reader how the judges have understood and made sense of the law and the case in question.Legal verdicts are authoritative texts that shape institutional and everyday understandings of crimes.Understandings matter because they shape people's actions as well as what is presented and are often accepted as truth, especially when they are constructed by the courts.From this perspective, legal text can be considered a place where facts are constructed and knowledge is produced (Niemi-Kiesiläinen et al., 2016).This perspective entails a focus on sense-making, not on the outcomes of the verdicts.Accordingly, the analysis will not be able to describe or predict what factors contribute to acquittals or convictions.
I also carried out a qualitative document analysis that is theory informed, which means that I used theoretical concepts as analytical tools to make sense of connections in the data material (Johannessen et al., 2018).Here, I use different concepts of the body.First, I considered whether the courts applied an embodied understanding of incapacity or whether, and how, they separate between the physical body and the mind.Second, I considered different approaches to the body, including the body as a medium of symbolic meaning construction, the body as a representation for various conditions, and normative matters of the body.To analyse what the court considers (in)significant, I focused on what is made (in)visible, taken for granted, and problematised in the verdicts (Bacchi, 2012).For example, when reading the verdicts, the physical body of the victim during the assault was usually made visible, whereas the victim's mind was often made invisible.When the victim's mind was made visible, it was generally when it appeared to be alert, and the body appeared to be passive.It was commonly taken for granted that incapacity required a dormant body and an absent mind.Finally, the verdicts tended to problematise how people could sleep through a rape.I detail this further in the following analysis.

Bodily Imaginations: Visualising (Un)Conscious Bodies
Most of the selected cases concern sleep or intoxication or a combination of the two.Here, intoxication usually includes alcohol, and not stimulating drugs, with the complainant having more or less passed out when the incident occurs.These cases typically take place at a party, bar, or the like and therefore usually include witnesses who have witnessed the state of the complainant before or after the incident.In the first case I will present, three men raped a woman at a party.The case illustrates how an unconscious body appears in the witnesses' description of their observations at the party.The court summarises the witnesses' descriptions of the woman's condition in the following ways: The court refers to E's testimony that the victim was placed in the room because she could not take care of herself, as well as the testimony of witness G that the victim was lying on the floor next to the toilet after she had vomited, and that she needed help to stand up and was carried / supported into the bedroom.Furthermore, the court refers to the testimony of witness H that the complainant was so drunk that no contact was made when talking to her.The complainant's testimony is also supported by the witnesses who entered the bedroom during the rape.The court refers to E's testimony that the complainant was just lying on the floor and was helpless, and that she barely managed to move.Furthermore, the court refers to F's testimony that the complainant remained in the same position after the accused had left the room and until the police arrived.(LB-2019-172336) In this case, people at the party had witnessed how the complainant was too drunk to move her body and that she was completely unresponsive both in terms of verbal communication and of behaviour (e.g.she did not move or cover herself when people entered or left the room during and after the rape).She is, in other words, passive, distant, and not present in the social world.She appears to have lost her embodied grip on and involvement in the situation.For that reason, the witnesses supported/carried her to the bedroom to sleep in peace.This act symbolises the withdrawal from the social world that constitutes sleep.As Williams and Crossley (2008) pointed out, we withdraw from the social world when we go to sleep, and the routines and rituals of getting ready for bed emphasise this transformation.When people at a party put someone who is wasted to bed to sleep it off, their act suggests that they perceive that person to be heavily intoxicated and in need of a 'sleeping cure' (Williams and Bendelow, 1998), so that they will be able to take care of themselves.Their act implies that she is not fit to be in the social world and, accordingly, substantiates her rape claim.The storied observations and interactions offered by the witnesses in court visualise the ways in which the complainant's state appeared at the time.The visualisation makes it easier for the judges to imagine the complainant's condition at the time of the incident, a condition characterised primarily by a passive body but also a distant being.In this case, the court convicts the three men accused of raping her based on the witnesses' testimonies.
A video recording of a reported incident of rape offers a more powerful visualisation of a victim's passive body.A surveillance camera became an important technological witness to a rape on a ferry.The recorded incident gave the panel of judges an opportunity to see for themselves the condition of the woman who claimed to be raped.In the verdict, it is described how the recording shows how the complainant appears to be drunk because she is not walking straight and needs support to walk.When the complainant sits down, she quickly falls asleep.The recording shows that she puts her head aside and her whole body becomes limp.The judges further describe what they see on the recording: The recording further shows that the victim, after she collapsed on the sofa, was unresponsive to the defendant's advances from the start until the end.The lack of self-directed movements, that the victim's muscles consistently appeared limp and that her head, legs, and arms for the most part were completely inactive, with the exception of the times the defendant lifted and moved her, support the victim's testimony that she was not conscious due to intoxication and/or sleep when the sexual acts took place, and that she was therefore unable to resist the sexual intercourse.(LG-2019-152095) Although this was a dissenting decision in which the minority voted for acquittal, in part because of the limited quality of the tape, the majority convicted the accused primarily based on the recordings.Visual evidence such as tape recordings can make the panel of judges more confident that their decision is 'tethered to the real', and as such strengthening their belief in the decision to be right (Feigenson, 2014: 13).In addition, it can 'provide common perceptual and conceptual ground between triers of fact and witnesses and among the triers themselves' (Feigenson, 2014: 19), unless, of course, members of the panel of judges interpret the visual displays radically different, which is likely in relation to sexual violence as it is a crime prone to a contested interpretation of its definition.However, visual evidence presupposes clear observable signs of incapacity, which suggests signs of the state of the physical body because it is more readily available for display.These depictions address visualisations of the physical body.Incapacity is in this way materialised as a passive and limp body, that is, an unconscious body.
In the following case, the court makes a distinction between the complainant's body and their mind.Here, the complainant was severely intoxicated at the time of the incident, but the court acquits the defendant because it concludes that the complainant was not unconscious.A witness observed the alleged rape that took place outdoors on a table in a garden, close to the party, and she describes how she tried to intervene.
The witness explained for the court that she became aware of how the complainant was completely lifeless and that she did not show any signs of movement.The witness wanted the complainant to respond to whether what was happening to her was ok, but she was just lying there.She had her head turned away, her legs hanging straight down and her arms straight out.Her dress was pulled up.(LA-2019-173370) According to the witness, the accused became angry with her for intervening, which made her afraid and unsure of the situation.Owing to her doubts and the complainant's own testimony, the court concludes she was not incapable of resisting the incident.
[The complainant's] own explanation of what she remembers of what happened in the garden is so detailed that it can hardly be assumed that she was incapable of resisting the act, legally speaking.(LA-2019-173370) The first extract from the verdict suggests that the complainant was more or less 'dead to the world'.She was physically passive, not moving any parts of the body.She was further not responding to the witness's interference: not saying anything or reacting in any other way.For instance, she did not attempt to cover herself by fixing her dress or looking at the witness.Although she appeared to be both physically and psychologically unable to do anything, the court does not seem to be convinced that she was incapacitated, as it states in the second quote, because of her 'detailed memories' of the incident.In this case, the court creates a distinction between the body and mind.The body appears to be dormant -inactive, anaesthetic, and limp.The mind, on the other hand, is not distant or absent but instead present through sensation and remembrance of the action that takes place around her.The description of her state resembles what Leder (1990) calls a transitional state, a state between deep sleep and alert wakefulness that is characterised by a recessive being but with a sensitivity to outer stimuli.The ambiguity of a transitional state allows the court to interpret the sensitive mind as an awakened mind and, accordingly, that the complainant must have been able to resist the acts.This interpretation suggests that the court does not recognise liminality as a form of incapacity, even though it is characterised by a lethargy of the limbs and a loosening of the mind's associative process.These characteristics imply that a person is most likely not able either to comprehend the situation and be able to make a choice or to be physically able to resist the acts.Still, the court assumes that signs of an alert mind mean one is able to behave as one normally does.In this way, the court does not recognise how a person's capacities require an embodied grip on and involvement in a situation (Williams and Crossley, 2008).The only way to be incapable appears to be completely unconscious, that is, in a coma or (heavy) sleep.This is accentuated in language when, for instance, witnesses use descriptive characteristics such as 'lifeless' (as quoted above), 'comatose' (LH-2018-163419), or the like.This idea that memories or glimpses of consciousness where a complainant is able to register what is going on around them constitutes a wakeful or conscious state that makes a person capable of resisting sexual acts, suggests that consciousness is perceived to be a state of mind.Unconsciousness, on the other hand, is materialised as an inactive and slack body.To be considered incapacitated then seems to require both a passive body and an absent mind.This suggests that court deliberations regarding incapacitated rape tend to circle around perceptions of (un)consciousness as a matter of body and mind.
These examples illustrate that legal practice and court deliberations construct incapacity as a state of unconsciousness similar to sleep.Consequently, 'unconsciousness' appears as dormancy in the verdicts.This means that the written verdicts centre on dormant issues such as (in)activity, inertness, sentience, (un)responsiveness, distantness, and drowsiness.In this way, sleep becomes the normative principle that guides the legal gaze in the decision-making process.Sleep might have become normative in court deliberations because it constitutes an unconscious state everyone is familiar with (everyone needs to sleep regularly) and, accordingly, has common knowledge of (Taylor, 1993).Furthermore, sleep is a radical form of withdrawal from the social world (Williams, 2007).Considering how consent is a social construct regulating social interaction, a total withdrawal from the social world makes it clear that a person is unable to even consider whether to have sex or not.Intoxication, on the contrary, blurs this distinction between the social and unconscious world.Intoxication is usually a product of social interaction and occurs in social settings (Lyons et al., 2014).Moreover, when someone passes out, they usually pass out in the middle of the party (e.g. on the couch).The withdrawal from the social world is therefore less obvious and, accordingly, less credible.The drugged body might also be considered an impure body, as described by Hyde (1997), and, accordingly, not as innocent as a sleeping body.

Bodies and Meaning in Motion: Negotiating the Signs of the (Sexed) Body
As discussed above, incapacity is associated with dormancy and motionlessness, whereas capacity is associated with the opposite, namely, activity and responsiveness.This means that the possibilities to create doubt about the complainant's condition revolve around levels of (in)activity.The most common way to challenge an incapacity charge is to claim actions on behalf of the complainant.For this reason, bodily movements become the disputed or contested factors during trial and court deliberations.What are negotiated during legal proceedings are precisely the degree, characteristics, and meaning of bodily motions.For example, a common argument to repudiate the complainant's dormancy is to claim some movements or sounds from her body: The accused has explained that he perceived the complainant as awake and participating.They did not talk to each other during and after intercourse, but he believes she kissed him back.She also made some noises during intercourse.(LB-2019-106482) The arguments are often concerned with the mutuality of sexual acts, that is, how the complainants respond sexually in some way or another, usually quite subtle and not clearly described, as the extract above suggests.Often the noises refer to what can be interpreted as noises of pleasure, such as moaning.Other signs could be a nod, a simple 'yes' to a question whether the complainant is ok, open eyes, various bodily movements, and responses to sexual stimuli.These claimed acts are presented as speech acts to construct an image of willful participation through actions (Brian, 2020).In the case quoted above, the argument is not sufficient to convince the court.Instead, the court convicts the defendant based on witness observations of how the complainant had passed out on the floor in the bathroom and was impossible to wake up.
To emphasise the voluntariness of sexual activities, it is common to claim movements and sounds that one can add sexualised meanings to.In a case in which the defendant is acquitted, the accused similarly claims some bodily actions and sounds.
The defendant explained that the complainant moved and moaned, and he got the impression that she liked what he was doing.(LH-2018-156738).
The claimed movements and sounds are typically saturated with sex.According to Smart (1995), a rape trial sexualises a woman's body because it tends to attribute sexualised meanings to women's corporality.In this way, the woman's body becomes evidence.Attributing sexualised meanings to women's dormant bodies is facilitated by the associations between sleep and sex in language, culture, and society.
In the above extract, the movements are presented as purposive.In the following extract, the claimed movements do not necessarily appear as purposive as in the previous one.The defendant's explanation is further that he turned the complainant on her back at the same time as she pulled up and spread her legs.(LB-2018-177307) When the accused claims the complainant spread her legs at the same time as he turned her on her back, this claimed act might as well be a non-purposive motion (her legs falling apart as he moves her), that is, a reaction to his action.During the trial, the parties typically dispute the distinction between purposive and non-purposive acts.The accused and his lawyer attempt to distort this distinction to make the court interpret all the complainant's acts as purposive, implying wakefulness and voluntariness.In one case in which the defendant argued that he could tell the complainant was awake because of her 'body language' -bodily signs of arousal such as heavy breathing and lubrication -the court states the following: If what the defendant explains should be correct, these signs are in any case bodily reactions that are not controlled by the person's will in that particular situation.(LG-2018-168849) Here, the court explicitly repudiates the accused's claim of bodily actions by arguing that these constitute non-purposive bodily reactions characteristic of sleep or a liminal state.By doing this, the court refuses to add sexualised meanings to the complainant's body and to interpret bodily (re)actions as signs of wakefulness.In other words, the court challenges the symbolic meaning construction of the complainant's body that adds sexualised meaning to physiological processes.However, by conflating purposive and non-purposive actions, the accused and his lawyer attempt to make the complainant's body appear as if it was awake and imply capacity to resist.In this way, the meaning of the body's (re)actions becomes ambiguous and open for negotiations.This is partly possible because what people do in their sleep resembles what people do when they are awake.Bodies often move (e.g.turn around, change position, and even talk and walk) during sleep.However, when people sleep, they lose control of what their bodies do (Taylor, 1993;Williams, 2007) because sleep constitutes a being recessed from the command and awareness of the person (Leder, 1990).Still, Williams (2007) argues that norms regarding (in)appropriate sleeping behaviour guide how people sleep.When they sleep in public, they try to be a socially attentive sleeper by dozing off without completely losing control of the body.In this way, they can avoid the shame and humiliation associated with doing something inappropriate while asleep.When people do something in their sleep, whether their bodies make noises, speak, move, or walk, they tend to become embarrassed.This suggests that sleep and dormancy do not constitute a state of complete passivity.

Common Sense and Normative Matters of Sleep: Considering Appropriate and Inappropriate Sleep
The analysis so far shows that unconsciousness materialises as passive and unresponsive bodies similar to sleeping bodies.However, to be considered unconscious also seems to require a completely absent mind in legal deliberations.If the court cannot find any signs of an active body or an alert mind, it might turn to commonsensical norms regarding sleep.Sleep is perhaps not something commonly associated with norms, but what people can (not) do in their sleep, as well as when, where, and how to sleep, is still a matter of common concern (Williams, 2007).Even if people cannot be held legally or morally accountable for their actions during sleep, they might still experience social condemnation or embarrassment if they do something inappropriate in their sleep.In court deliberations, however, sleep norms inform and shape credibility assessments.This means that norms regarding (in)appropriate sleep guide meaning-making practices in court.
A typical example concerns norms regarding how to fall asleep and wake up.In a dissenting decision, the decisive minority acquits the accused based on an assumption that people do not, and accordingly should not, fall into heavy sleep quickly: The minority points out that the accused's intercourse with the complainant happened shortly after [name's] intercourse with the complainant.Although she was somewhat intoxicated, it is not clear how she could have fallen into heavy sleep this quickly so that she could not resist the intercourse.(LH-2019-136465) The idea behind this commonsensical reasoning is that in certain situations and in some part of people's sleep, particularly in the falling asleep phase, people are socially attentive to their surroundings.The socially attentive sleeper is not completely 'cut off' from the social world but drowses a bit while maintaining some bodily control and wakes up easier when, for instance, sleeping in public places such as on a train or plane (Williams, 2007).Accordingly, the socially attentive sleeper is in a liminal state; that is, they are neither really sleeping nor completely awake.According to this reasoning, if the complainant had in fact been in a transitional state of falling asleep, then she should have woken up quickly when the accused approached her and made sexual advances.Here, the court implicitly recognises the liminality of falling asleep but treats it as an awakened state, not an in-between state characterised by both lethargy and sensitivity, but still neither unconscious nor conscious.As a result, the mind becomes responsible for what happens with the sleeping body.This means that commonsensical reasoning regarding sleep norms guide legal deliberations in cases where the complainant reveals no signs of bodily activity or an awake mind.
Being a socially attentive sleeper also applies to where you sleep.In a dissenting decision, the minority vote states the following: In the consideration of the case, the minority has emphasized that the complainant was not very drunk and that she was sleeping over at a stranger's house in which one usually sleeps lighter.(LH-2018-187180) This reasoning suggests that the complainant should have woken up before the intercourse because she was not sleeping in a safe place such as home.Where you sleep is, in other words, of significance to the quality of sleep and the sleeper's attentiveness.Although a person can be attentive to their surroundings when dozing off in public spaces, it does not mean that everyone can and will be attentive when going to sleep at a party or at someone else's home.They might not consider these places unsafe, and they might be too tired to just snooze for a bit.As pointed out by Leder (1990: 57), when the body shuts down, there is little a person can do to control its state.Rather, sleep involves a 'letting happen', a surrender to a call placed upon the person.The socially attentive sleeper who is called for in the verdicts appears to include an absent body, but a present or alert mind.
To be raped in one's own bed might increase the complainant's credibility.In a case where two women sleeping in their own beds in separate houses claim to be raped by the same person who broke into their houses on the same night, all three had been to the same party earlier that night.The majority vote does not consider the defendant's story credible and sums up his story, with a bit of irony, as follows: In other words, according to the defendant testimony, he entered the bedroom of two ladies he did not know beforehand, uninvited.Both were sleeping but wanted to have sex with him as soon as he woke them up.Despite this, both are said to be falsely accusing him of rape the following day without any apparent motive to do so.(LH-2020-33188) The fact that both women had withdrawn from the party, by going home and to bed, suggests that they were sleeping.The place of sleep makes it unnecessary to consider bodily movements or other signs of dormancy to establish whether the complainants were in fact sleeping.They were in a place where people normally sleep and where it should be safe to sleep.According to Williams (2007), sleep implies a power imbalance between sleeping and waking bodies, in which sleeping bodies are particularly prone to (sexual) victimisation (Aubert and White, 1959b;Heyes, 2015).For these and other reasons, sleep has been privatised in the sense that we sleep alone (or with our families) in separated bedrooms, safe from others' interferences (Taylor, 1993).The bedroom usually appears to make a difference in terms of distinguishing consciousness from unconsciousness as it symbolises withdrawal from social spaces, unless of course it turns public because the party or social gathering moves into the bedroom.This means that if the complainant goes to bed in a bedroom, it will make the rape claim more credible.
Similarly, in a different dissenting case, the majority vote assumes that the complainant should have woken up before the intercourse.
The majority has also emphasized that it is striking that the complainant did not wake up when the accused lay on top of her.(LH-2018-152693) The assumption here is slightly different because, in this quote, the complainant did not have to be socially attentive in her sleep but should still have been woken up by the heavy load on top of her.After all, sleep is a state that is more or less rapidly reversible (Williams, 2007: 314), because the sleeping world is connected to the waking world in the sense that events in the waking world can draw the sleeper back (Williams and Crossley, 2008).However, the commonsensical reasoning of the court does not take into account how the sleeper still does not control her sleep or how it is difficult to regain an embodied grip upon the world when experiencing lethargy.For example, in case LB-2018-125155, the minority vote questions why the complainant did not wake up when she was being undressed by the accused.When and how the complainant wakes up tend to be crucial in determining whether she was unconscious or for other reasons incapable of resisting the act.An unexpected and strong reaction during the alleged rape, on the contrary, might suggest that the complainant was in fact sleeping.
The majority points out that there is no doubt that the incident in the bed ended when the complainant suddenly jumped up and ran out of the defendant's room.If it had been as the defendant explains, that the complainant was awake and consented to what he did, there is no reasonable explanation for such an abrupt end.(LH2019-119406) The transformation from a passive to a hyperactive body suggests a transformation from sleep to wakefulness, a transformation that both parties testified to in this case.The fact that the complainant suddenly is actively resisting the sexual acts suggests that she was not capable of resisting while she was passive because of sleep.
In court deliberations, the complainant is often required to be socially attentive to her surroundings, but sometimes the defendant is also required to be attentive to the complainant's condition.In some people's view, sleep is a state that is, or at least should be, noticeable.For instance, in one case, it is suggested by the minority vote that the defendant should have known that the complainant was asleep because of how sleeping bodies are tangible: The minority also believes that there is much to suggest that the defendant could feel on her body that she was asleep.(LB-2018-119700) The assumption here seems to be that in the same way as someone can see when a body is asleep, as some of the witnesses in the selected cases describe, it is also possible to feel a body's dormancy or the recessive being of a sleeping body (Leder, 1990).According to the minority vote, this is something that the defendant should have paid attention to.
Sleeping norms seem to inform and shape court deliberations and legal practice when considering whether a complainant was incapacitated.The complainant seems to be judged according to whether they conform to these norms rather than whether they in fact were incapacitated.According to the norms, they need to be socially attentive even when they are asleep or for other reasons incapable of resisting sexual acts.This means that the sleeping norms contribute to an increased responsibilisation of incapacitated people.

Embodiment and (In)Capacity
Legal meaning-making practices in cases of incapacitated rape tend to address the victim's body.During rape trials and legal deliberations regarding incapacitated rape, the victim's physical body appears as a central concern in determining whether the complainant was, in fact, incapable of resisting the sexual acts.In these deliberations, how to interpret the physical body and its signs of dormancy and wakefulness constitutes the core of the conflicting views.The analysis shows that the legal deliberations focus on dormant issues, such as the degree of bodily (in)activity in which bodily movements, sounds, and appearance attain symbolic meaning.The metaphorical associations between sleep and sex facilitate interpretations of a sexualised body that are supposed to substantiate an argument of consensual sex.In this context, incapacity is materialised as a passive and limp body, that is, an unconscious body.At the same time, the body appears to be separated from the mind in the sense that any signs of wakefulness imply a conscious mind.If a person with a passive body registers and remembers (part of) what happened during the alleged rape, then the court might interpret the person to have been conscious and, accordingly, capable of resisting the act.This suggests that legal deliberations do not recognise liminal states.During liminality, a person might be sensitive to outer stimuli to various degrees but does not have an embodied grip upon the world.Still, that person tends to be considered capable of resisting sexual acts.In this way, the courts construct bodies that represent various conditions that they in turn evaluate to establish criminal guilt.
In some cases, where the signs of the body and mind are not an issue, commonsensical reasoning regarding sleep norms requires the complainant to be a socially attentive sleeper.The demand to be a socially attentive sleeper suggests that legal deliberations make a distinction between body and mind in which the mind can never rest completely.Accordingly, the sleeper is responsibilised for what happens to them while asleep.The ways in which the courts evaluate incapacity in rape cases suggest that they do not account for the power relations that arise from differences in consciousness among people who are awake and those who are asleep.To mitigate against commonsensical assumptions, the courts may balance their beliefs with scientific knowledge and a critical reflection on how intuitive knowledge may shape their decisions.In addition, if legal actors were to focus more on liminal processes, the courts might become more aware of how in-between states complicate understandings of sleep and wakefulness.
The analysis in this article shows that the body is a matter of concern in legal deliberations regarding incapacitated rape.The physical body appears in legal deliberations because of how readily available the signs of the physical body are.However, the state of a person's mind complicates the issue of (un)consciousness because it might appear to be in a different state than the body.The challenge appears to be how the body relates to the mind.The legal deliberations do not seem to consider how (in)capacity requires an embodied perspective on the ability to resist sexual acts.Instead, the body seems to be something the complainant has and can control, rather than a condition for the complainant to be capable to resist unwanted sexual acts.