A Knight(mare) in Shining Armour: A Foucauldian-Feminist Analysis of Sexsomnia Defence in Swedish Courts

Abstract: In recent years, several men in Sweden have been acquitted of different sexual offences because the courts deemed that it could have occurred in their sleep. According to a leading expert, several of the Swedish acquitting cases are based on incorrect or irrelevant arguments and reasoning regarding sexsomnia. Therefore, it is important to gain a deeper understanding of how sexsomnia manifests within the legal context in Sweden, and more specifically in a courtroom. The aim of this thesis has been to investigate the defence of sexsomnia and how it can be understood according to Swedish courts judgements. I have posed the following research questions: How can sexsomnia as a defence within the Swedish court system be understood based on court judgements?, How is sexsomnia, as a medico-legal phenomena, constituted through power and knowledge in Swedish courts?, How can gender influence the way sexsomnia, as a medico-legal phenomena, is constituted in Swedish courts?, and What are the possible implications of the constructions identified in the analysis?. In order to answer these questions, I have utilised a qualitative text analysis and have examined court cases of sexual violence, more specifically court cases in which the defendant has claimed sexsomnia as a defence, which implied a strategic sampling. The 30 court cases between 2017-2021 that constitute the data set has been analysed through two different methods: content analysis, which produced descriptive statistics, and thematic analysis, which produced a more interpretative analysis. The themes that constitute the thematic analysis are (1) The battle of the powerful, (2) Rape is rape regardless of intent, and (3) The disqualifier of the defence. The results illustrate a struggle between the medical and the legal in the medico-legal field over the exercise of power and knowledge, and that medical experts have the power to impact the court's final judgements. The results also show that the legal system excludes women's experiences and can place responsibility for the acquittal on them. Furthermore, this thesis argues for further feminist, socio-legal, sociological, medical, and legal research into the subject of sexsomnia.