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The truth about sexsomnia Is sleepwalking ever an excuse for rape?

Is sleepwalking insanity? (Smith Collection/Gado/Getty Images).

Is sleepwalking insanity? (Smith Collection/Gado/Getty Images).


October 25, 2022   7 mins

When is a rape not a rape? When the perpetrator is asleep. In the summer of 2003, a mixed group gathered at a grand house in the Beaches district of Toronto. It was an annual thing — a house party and croquet tournament. At about 4am, the previous year’s champion — a well-liked 32-year-old man — collapsed on the sofa, exhausted and drunk. He fell asleep. Nearby was a young woman, also sleeping. An hour later, the woman awoke to find her underwear removed, and the man, who she had not met, having sex with her. She screamed and pushed him off. He got to his knees, dazed and incoherent — “like when you’ve just woken them up out of a sound sleep”, in her words. She demanded to know her attacker’s name. “Jan”, he told her, truthfully.

It was not long before this that the neuropsychiatrist Dr Colin Shapiro had coined the term “sexsomnia”, and it was he who carried out a thorough investigation into the incident. He interviewed the defendant’s friends, family, and ex-girlfriends, and monitored his brain activity while sleeping. At trial, he expressed the view that the attack had been committed during an episode of parasomnia, otherwise known as sleepwalking. Several well-known triggers were present: alcohol, exhaustion, emotional stress.

The prosecution denied that the attack had been involuntary, but did not call on any other expert to contradict Dr Shapiro. The judge agreed with the defence, and the defendant walked free. A judge in the Court of Appeal, which examined the case comprehensively, deemed sleepwalking attackers “one of the most difficult problems encountered in the criminal law”. A sleepwalking victim is perhaps an even more troubling proposition, because a further question arises: could there have been a “reasonable belief in consent”? And can a complainant suspected of sleepwalking be expected to provide contact details of ex-partners, or submit to intrusive testing? One case of a sleepwalking victim — or so the defence argued — is the subject of a recent BBC documentary, Sexsomnia – case closed?

The facts are similar to the Canadian croquet case. Jade McCrossen-Nethercott — who has waived anonymity — fell asleep on a sofa at a small London house party in 2017. She had not drunk a great deal. When she awoke, she felt as if she had been penetrated. Her trousers and underwear were off. The man responsible was beside her. She challenged him. He said he thought she had been awake.

The documentary tells the story of her contact with the criminal justice system following this horror. We are shown an extract from her video-recorded account to police, in which she discloses a history of parasomnia. The defence, seeing this, instructed a sleep expert, who said there was “a strong possibility” of “sexsomnia”. But the phrase “strong possibility” comes from this media report; the documentary puts it much lower: “consistent with”. This is not the only piece of apparent one-sidedness in the programme. When we are played the recording of the Crown Prosecution Service lawyer telling Ms McCrossen-Nethercott that they are going to drop the case, the clear impression is given that the decision was based on only a single expert report, from the defence.

In fact, as is later written in a super-imposed caption, there was a report from a second expert. Not included in the caption is the fact that the report was commissioned by the Crown itself. An expert’s first duties are to the truth, and to the court, but it is not uncommon for bias to creep in. So it was quite proper for the Crown to obtain a second opinion — which, it turned out, also supported the “sexsomnia” theory. If I were the defence lawyer in a case like this, armed with two expert reports that suggested a real possibility of sleepwalking, I would be feeling very confident. As the CPS explained to Ms McCrossen-Nethercott, the expert reports meant that the evidential threshold of a 50% chance of conviction was no longer met. The court duly recorded a Not Guilty verdict. There would be no trial.

But Ms McCrossen-Nethercott challenged the CPS’s decision. In particular, she felt that the strength of the sexsomnia contention was not enough to end the case before trial: there was no evidence that she’d engaged in sexual activity during any of her previous sleepwalking episodes. One of the experts had said that this could have been her first episode. Ultimately, the Chief Crown Prosecutor who performed the review agreed with Ms McCrossen-Nethercott: these difficulties should have been examined in court. Small comfort, of course, when the defendant had already been formally acquitted. Ms McCrossen-Nethercott is now suing the CPS.

Her case is thought to be the first in which the complainant’s alleged parasomnia, rather than the defendant’s, is central. But there is no doubt that sexsomnia exists, and is not all that rare among those who sleepwalk. And although it is about three-times as prevalent among men as it is among women, it certainly affects both sexes.

In an appearance on Woman’s Hour, the director of Sexsomnia — Case Closed? said she had found about 50 cases over the last 20 years in which the issue has arisen. In one of them, a young Yorkshireman was acquitted of raping a woman in his flat on the expert evidence of Dr Irshaad Ebrahim. It was slightly disappointing, therefore, to see Dr Ebrahim in the documentary telling Ms McCrossen-Nethercott that “there are a lot of lawyers trying to get business out of it [i.e. sleepwalking defences]… The ones who are enabling it are the ones who are advertising they can get you off”. A lawyer with experience in this niche area must surely be permitted to advertise their competence — how else is an innocent sexsomniac to choose a representative? And I doubt many, or any, lawyers are claiming that they can use the defence to “get you off”.

Other 21st-century parasomnic rape acquittals include an RAF serviceman, who in 2006 had sex with a 15-year-old girl after a party, and whose longstanding somnambulism earned him the nickname “nightrider” from his colleagues; a drama student who had sex with a non-consenting woman at a house party in 2008; and a roofer who in 2007 had sex with his friend’s wife after a barbecue. All these cases, and many others like them, have one startling thing in common: the defendants were acquitted entirely, with no requirement to submit to treatment, or to avoid the triggers that increase the chance of parasomnic attacks occurring.

And this is the issue that the Ontario Court of Appeal had to grapple with in 2008, after the croquet party acquittal. The trial judge’s finding that the attack had been involuntary was not open to challenge. But the prosecution argued on appeal that he had been wrong to find that parasomnia should result in an acquittal; rather, they said, he should have been found insane — and therefore liable to be detained. The Appeal Court agreed.

In Canada, as in the United Kingdom, the law divides involuntary acts into two separate categories of automatism: insane, and non-insane. And there were two recent precedents on how this should be done. First, R v. Parks (1992), in which a sleeping man drove ten miles to the home of his mother-in-law and bludgeoned her to death with a steel tyre lever. There, the Supreme Court had upheld the finding of non-insanity. Secondly, R v. Stone (1999), in which a man stabbed his wife 47 times after suffering an abusive tirade (she said, he claims, “that she couldn’t stand to listen to me whistle, that every time I touched her she felt sick… that I had a little penis and that she’s never going to fuck me again”). The judges in that case shifted the law firmly in the direction of insanity for such cases.

The Supreme Court in the croquet case expressed the view that part of the reason for the shift in Stone had been the contemporaneous softening of the sentencing options available for “insane” defendants. The Court in Parks, they noted, had had an understandable reluctance to condemn a sleepwalker to indefinite detention in a mental institution. Post-Stone, however, outcomes became more flexible.

Here, “insanity” in the criminal law requires a “disease of the mind” — an outmoded phrase from an 1843 opinion of the UK Law Lords — but neither concept matches any medical definition. The legal distinction between insane and non-insane automatism has been described in various different ways over the years, but the real nub of it was captured by Mr Justice Bastarache in Stone: “The fundamental question … at the centre of the disease of mind enquiry [is] whether society requires protection from the accused.”

And so it should be. But in the United Kingdom we do not seem to have caught up. In 1991, in a case in which a 32-year-old man attacked a young woman he fancied with a rock and a video-recorder, apparently in his sleep, the Court of Appeal held that sleepwalking violence should generally be regarded as insanity rather than automatism. But as press reports of sexsomnia acquittals suggest — and as the Law Commission has since confirmed — common practice in the trial courts is to allow verdicts of non-insane automatism for sleepwalkers, as if they are no threat to society.

Automatism is better for the defendant in terms of outcome — acquittal rather than detention in a mental hospital — but also because of the different burden of proof. A mere doubt is enough for a non-insane automatism acquittal, whereas the defence have to prove insanity to be likely. There are, therefore, sound conceptual and public protection arguments in favour of treating sleepwalking as insanity. (Not that it would have helped Ms McCrossen-Nethercott: the defendant cannot be expected to disprove the absence of reasonable belief in consent.)

If we did treat sleepwalking as insanity — as many argue we should — there would at least be the possibility of giving violent sleepwalkers medical and other treatment, forcibly if need be, in order to protect the public. The case of former soldier Joseph Short illustrates the potential benefits of this approach. Short was accused of a 2011 rape in Scotland, but the Crown dropped the case after leading expert Dr Colin Espie supported a diagnosis of sexsomnia. He was then tried in Hull for a further rape, and acquitted on the same grounds. In 2016, he was tried in Birmingham for another two sex attacks.

This time, he was convicted, and received a 15-year extended sentence. Dr Espie had new evidence to give: Short had not followed his advice on how to reduce the risk of a sexually violent parasomnic episode. But some more formal constraints on his freedom might have saved Short’s later victims, assuming (which we should not) that he was in fact a somnambulist rather than a lying rapist from the start. In 2013, the Law Commission recommended a wholesale reconsideration of the law in this area. It has not been followed up. There is no evidence of an epidemic of false sexsomnia defences, but such cases ought to be dealt with consistently, and with public protection foremost in mind.

The law’s response to one of the earliest well-documented cases of violent sleepwalking may serve as inspiration. In 1843, a doting father, 28-year-old Simon Fraser, got up in the middle of the night, picked up his 18-month-old son, and killed him by repeatedly smashing the boy’s head against the walls and floor. He thought he had been fighting a monster. The jury found him not guilty, and — following some dispute between experts — not insane. There was, however, according to some reports, an informal arrangement agreed: for the rest of his life, his wife would lock him in his bedroom at night.

But these days it might be best if the Courts could deal with those who commit involuntary violence by subjecting them, in appropriate cases, to the enforced supervision of medical professionals and probation officers. It is unwise to leave even an accidental rapist’s remedy to his own sense of personal responsibility.


Adam King is a criminal barrister at QEB Hollis Whiteman.

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Brian Villanueva
Brian Villanueva
1 year ago

Is this really a pressing problem facing women (or men) today? Sex while sleepwalking? Sure, you can find a few cases, but in terms of real threats to women ‘safety, this seems pretty close to a “hit by lightning” kind of problem.

Guys: Don’t get so wasted that you can’t control your behavior. Should you be able to get wasted at the bar and have confidence your (less drunk) friends will control your behavior when you can’t… sure. But it’s a stupid idea. And if you know you tend to sleepwalk, don’t fall asleep in strange places or in mixed company.

Girls: Don’t get so wasted that you pass out or can’t make informed decisions. Doesn’t every woman know this? SHOULD you be able to get wasted in public… sure. But it’s a stupid idea which will very likely result in bad things happening. And if you tend to sleepwalk, don’t fall asleep in strange places or in mixed company.

Is this really that hard?

David Sharples
David Sharples
1 year ago

Driving while intoxicated (DWI) doesn’t make one immune to prosecution, neither should sex while intoxicated (SWI).

Christo R
Christo R
1 year ago
Reply to  David Sharples

At this point that should be true as well for partying while intoxicated (PWI)

B Davis
B Davis
1 year ago
Reply to  David Sharples

Nothing, actually, makes one immune to prosecution. But that’s not really the question is it?
Rather are we not asking whether intoxication is a legitimate & potentially winning defense against charges of rape?
And that, of course, is tremendously complicated by the subsequent question: were both parties intoxicated? And, while jointly intoxicated, was there a reasonable belief on the party of the drunken accused that the drunken accuser had given consent?
Taking it a step further — if we assume that a drunken woman is incapable of giving informed consent even if literal consent is given…must we equally assume that a drunken man is incapable of distinguishing drunken consent (an invalid condition) from sober consent (the only legitimate consent)? And if we grant him the same ‘pass’ we grant the woman…meaning that since we’re not holding her accountable for a consent given when she was drunk, we can’t hold him accountable for not being able to distinguish drunken consent from real consent….then rape, under such a dual lack of responsibility becomes extraordinarily difficult to prove.
Well it would be unless we, in a very sexist manner, say the woman is never responsible for her drunken decisions and the man is always responsible, whatever his condition.

B Davis
B Davis
1 year ago

Complexities inside Complications, wrapped in Confusion, and — increasingly — litigation & prosecution: welcome to the Fog of Human Sexual Interaction, itself a contact sport.
These days we define sexual assault/rape (sometimes interchangeably) as unwanted sex….or sex in the absence of consent….or sex in the absence of ‘affirmative consent’ (meaning that provable consent has been asked for and received at each and every incremental step in the sexual pas-de-deux). Absent a thoroughly documented (and preferably notarized) Proof Trail, affirmative consent remains entirely elusive.
The typical qualifiers further complexify.
Consent given in response to male persuasion (e.g. “C’mon…”) is NOT consent….neither is consent given as a function of psychological pressure (“You know you really want to!”)…. nor consent given as a function of threat or implied threat (“I won’t love you anymore!”). Consent given while intoxicated, of course, is not consent either (and God knows no one is ever intoxicated on Saturday night).
In combination this creates an almost impossible dilemma.
The Dance of Sex, the romance, the seduction, the flirtation, the escalating intimacies…all that most typically occurs in pair-bond isolation. Friends at parties may be able to testify at some future court date or Kampus Kangaroo Hearing that, “Yes, Betty Cooper did seem to be getting along quite well with Archie…but then they left to go somewhere else.” What happens in that Somewhere Else is anyone’s guess.
Now the Accuser tells us, ‘what happened between the two of us, unwitnessed, was unwanted’. The Accused responds, ‘she said & did the exact opposite at the time.’ She exclaims, “I was drunk; I couldn’t have consented!”. He answers, “Well so was I and you were nakedly enthusiastic!”. And after a conversation two days later with a Title IX Adviser who reassures Betty Cooper, ‘You were a victim!’…we arrive here, in the midst of the Litigious Fog.
First & foremost is the raw uncertainty associated with the very human fact that two people can observe the exact same thing — experience the exact same series of events — and see them, hear them, feel them in two entirely different ways. This the Rashomon Truth of Human Sexual Interaction.
So — “What about sexsomnia…the notion that people can act without conscious volition in ways that may or may not be criminal and may or may not have been wanted by others who may or may not have been equally sexsomniatic?” The impossible just became more so.
Since we clearly cannot rely upon personal responsibility to keep everyone safe from everyone and the chance that something unwanted may come their way…the only possible solution is mass incarceration. Lock us all up, just to be sure. Throw away every key. What else is there?

Philip Davies
PD
Philip Davies
1 year ago
Reply to  B Davis

Brilliantly lucid. Tragically true. We can’t just be ourselves. That’s why civilisation has inevitably descended into a police-state surveillance-society. We just got there later than the Communists. The Biblical metaphor is the Fall. There is no innocence, and – to use another inspired Biblical metaphor – we are all assuredly going to Hell. Indeed, ‘ . . . this is Hell, nor are we out of it’. Life is the most infinitely depressing predicament. What else is there? (you ask). Why, Death, of course. Yet, somehow, our survival-instinct powerfully deludes us that there can possibly be another escape, whereby we also survive. Heaven? Utopia, even? We cling to this groundless optimism and call it ‘happiness’, even though such a cruelly empty promise only punishes us for daring to deny the absolute Horror of existence. Existence is an insane conundrum not amenable to any adaptation that will allow Life to escape eventual extinction. We are an illusion. We keep ourselves busily occupied as a mere distraction from our nullity. Our actions make no difference. ‘Of course, I might be wrong’. And Godot might arrive.

Last edited 1 year ago by Philip Davies
Richard Craven
Richard Craven
1 year ago

Sincerely believing that the other party consented is indeed a valid defence against an accusation of rape.

Living2lives 0
Living2lives 0
1 year ago
Reply to  Richard Craven

I’m not sure if you’re being ironic but in case you’re not, your statement is certainly not true. I’ve listened to harrowing recordings of convicted paedophiles and rapists claiming that their victims ‘wanted’ it, or were ‘enjoying’ it, even when said victims, according to these rapists and paedophiles, were screaming and crying.

Christo R
CR
Christo R
1 year ago
Reply to  Living2lives 0

There are many people that have a kink where they scream and cry during sex…. people are really really weird…. and kinks are very very dangerous.
Such things actually being true an accidental raper can genuinely believe the rapee is consenting. Alcohol of course makes rape much much easier to happen by accident.
TBH if you get drunk and get taken advantage of it’s hardly something that you are completely innocent of. If you play with fire you run a high risk of getting burnt…. if you get drunk you run a high risk of surprise sex…. that’s just how it is. I would go as far as to say partaking in certain events are in themselves already consent…. unless you consent to what might potentially happen just don’t be there…. simple. The only way around this is to place authority over your actions upon the head of someone else rather than yourself.

Children cannot fully consent because they are under the authority of adults that consent for them…. a woman that abdicates her right to consent is essentially infantalizing herself. You never hear about men going to parties and accusing woman of rape because men do not have this luxury and are always responsible for themselves whether they like it or not.

Basically what I am saying is it’s ironically sexist to (with the excuse “well she should have every right to drink whatever she likes”) automatically assume that a woman that was taken advantage of was raped while you don’t make the same automatic assumption of men…. you are downgrading the victim rather than the perpetrator. Sure, she has that right…. but she does not also have the right to at the same time renounce all responsibility for her actions the moment something bad happens…. this is essentially her misbehaving and then running to daddy when her actions lead to undesirable results.

You can either treat woman like adults or children, you cannot do both… and clearly…. you cannot equally equate sexual relations with woman and children unless you infantalize the woman to make it a properly balanced equation.

Jonathan Nash
Jonathan Nash
1 year ago
Reply to  Living2lives 0

The defence is actually a reasonable belief in consent – not sincerity. In the cases you mention the jury would no doubt reject the claim that the perpetrator reasonably believed in the victim’s consent

Richard Craven
Richard Craven
1 year ago
Reply to  Living2lives 0

I’m sure you’re right, nevertheless the reasonable* belief that the other party consented is still a valid defence against an accusation of rape.

http://e-lawresources.co.uk/R-v-Collins.php

*Reasonable, not sincere:- Thanks to J.Nash for correcting me.

Last edited 1 year ago by Richard Craven
Jeff Cunningham
Jeff Cunningham
1 year ago
Reply to  Living2lives 0

I upvoted him to counter someone’s downvote. He’s raising a legitimate idea and like it or not, ought to be at least discussed. I think he’s right in so far as it is a legitimate defense. Whether it’s plausible or not is for a judge and jury to decide. It’s no different than a self-defense argument which might or might not be plausible. Someone entering your home, armed, who refuses to stop when you tell him you have a gun sounds like a plausible case of self-defense. Shooting someone in the back running down the street who you interrupted stealing the tires off your car is not plausible.

Bryan Dale
Bryan Dale
1 year ago

The question is how common is sexo BIA and importantly, how likely is it to recur in the same person. If we are to impose restrictions then there has to be evidence of an ongoing threat. I also wonder how we treat the woman who had sec with a willing man while she was sleeping.

Christo R
Christo R
1 year ago
Reply to  Bryan Dale

Note that all cases delt with here involved alcohol which is known to induce sleepwalking. So I’m thinking it’s highly likely to reoccur in the same person if the alcohol consumption pattern is repeated.

I am also reminded of cases where a party girl gets pregnant but has no idea who the father is…. not because she went to orgies or even had many one night stands but because she literally does not remember it happening due to her drunken state at the time.

Penny Adrian
Penny Adrian
1 year ago

People who help acquit these rapists on such ridiculous grounds should be held criminally and civilly responsible if they go on to commit further acts of sexual violence. This is disgusting.

Brett H
Brett H
1 year ago
Reply to  Penny Adrian

Do you mean the judges in these cases?

Jeremy Bray
Jeremy Bray
1 year ago
Reply to  Penny Adrian

So you would be happy to disregard evidence supporting the defence and any expert testimony backing that up and be sure that the man was guilty on the basis of your own limited knowledge of neurology if you were on a jury?

Ian Stewart
Ian Stewart
1 year ago
Reply to  Jeremy Bray

Penny previously assumed that my dad beat my mum based on my description of him losing his temper and shouting at her. I expect you’ll get similarly ‘short changed’ in any attempt to engage in constructive reasoning when it comes to the behaviour of men. Just hope she’s never on a jury.

However the fact that juries have accepted this defence in several cases without prior evidence of the behaviour by the accused or a proper diagnosis is wrong.

Last edited 1 year ago by Ian Stewart
Jeremy Bray
JB
Jeremy Bray
1 year ago
Reply to  Ian Stewart

The intemperate nature of Penny’s post did suggest a fair amount of anti-male prejudice might be involved. I don’t know enough about these cases to tell if juries have been over credulous of unsupported claims in this area. It is possible.

The more important issue raised by the article was how to deal with genuine cases to try to ensure there is no recurrence. The Victorian solution of ensuring the chap is locked in at night might not be practical in all cases but has the virtue of simplicity.

During the first few years of my life with my wife I used to have brief conversations about things at night with her that she had completely forgotten by the morning and denied having taken place being convinced that she was asleep through the night – and perhaps she was. As a result the idea that the young woman might have apparently consented to sex while asleep certainly doesn’t strike me as inherently improbable.

Laura Kelly
LK
Laura Kelly
1 year ago
Reply to  Penny Adrian

I usually agree with you, but I think this is more nuanced. My husband, on Ambien, woke me one night incompetently poking at me and when I turned around to say, “What the heck?” he launched into a weird dreamy monologue–obviously asleep. I thought it was funny, but that was the last time he took Ambien. My point is, a man who acts out sexually in his sleep should be forced to take measures that it doesn’t happen again–parasomnia treatment, no alcohol or drugs, or whatever. Once is a bizarre happening, twice should be a crime.

Sunny R
SR
Sunny R
1 year ago
Reply to  Penny Adrian

Did you even read the piece?!