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to think Sexsomnia (or Sleep-Raping) should not be a defence to rape?

(94 Posts)
HeIsSpartacus Fri 19-Aug-11 10:40:26

There seems to be an increasing acceptance by the courts (internationally, examples below span UK, Belgium, Australia and there are others) to accept sexsomnia as a complete defence to rape. Criminal law has the concept of 'recklessness' which means that even where it cannot be said the accused has formed the intention to act criminally, they can still be held accountable if it can be established there is:

(i) a circumstance when he is aware of a risk that it exists or will exist;
(ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk."

Lee-Davies (43 yr old) cleared of raping 16 yr old

Belgian father acquitted of raping 4 year old daughter

Australian man acquitted of rape

AIBU to expect Sexsomnia not to be a complete defence to rape (or a defence at all), since to use the defence the accused have to show to the court they have the condition and therefore are aware of it and therefore must also be said to have been reckless as to the consequences of sleeping in the same house as women at all? AIBU to expect Sexsomnia sufferers to put in place precautions (bedroom locks, not inviting 16 year olds to nap on their bed if they are ill etc.) and if they don't to face being convicted of rape due to their reckless disregard to protecting others from themselves?

The courts are happy to use criminal recklessness in cases of damage to property and other sorts of crime. Why not Sexsomnia? Or AIBU in suspecting this is another case of 'oh it's one person's word against another's and seeing as one of those people is a man, he must be right'? Even when that other person is the accused's 4 year old daughter sad

Prolesworth Fri 19-Aug-11 10:42:09

Message withdrawn

UsingMainlySpoons Fri 19-Aug-11 10:43:22

Message withdrawn at poster's request.

ShoutyHamster Fri 19-Aug-11 10:43:33

WHAT?!!

YANBU!!

Disgusting and depressing, but not surprising.

HeIsSpartacus Fri 19-Aug-11 10:46:39

Proles It was Vera's article which started me off reading these cases this morning - and I just could not believe what I was reading!

If criminal recklessness can be applied to boys of 11 and 12 and 'unintentional' arson how can it not be applied in these cases?

UsingMainlySpoons Fri 19-Aug-11 10:48:12

Message withdrawn at poster's request.

Whatmeworry Fri 19-Aug-11 10:49:58

YANBU - it is daft.

The Davies one sounds like there really was a bit more to it to be fair though.

OldLadyKnowsNothing Fri 19-Aug-11 10:51:42

But how would you know you had sexsomnia until the first time it happened?

HeIsSpartacus Fri 19-Aug-11 10:54:54

Whatme It's a bit more than 'daft' isn't it?

What do you think there was 'a bit more to' in the Davies case? The fact that he made a cup of tea after raping the 16 year old and then raped her again after the cup of tea? If his exes had complained that he had 'sleep groped' them to the extent he felt able to use their testimony as evidence to establish his sexsomnia surely he would have thought telling the 16 year old to use his bed to lie down on as she felt ill and then going up and falling asleep next to her on the bed was clearly reckless?

edd1337 Fri 19-Aug-11 10:55:21

YABU. If it's a first offence and that person hitherto wasn't aware they were capable of it, let them be

lisad123 Fri 19-Aug-11 10:56:06

I think that if theres a history, they should take right measures to ensure they cant do it, eg locks, ect.
As for the four yeats old raped, that is the worse sad

lisad123 Fri 19-Aug-11 10:56:58

I didnt see that the man made tea and then raped her again? or that he even knew she was there??

HeIsSpartacus Fri 19-Aug-11 10:58:03

edd1337 To prove they suffer from sexsomnia they have to introduce evidence into court to show that they have suffered in the past. So how can they claim to be unaware of it (ie the first time it has occurred) and simultaneously say to the court ah but stuff like this has happened before to me so it must just be one of those times again. Illogical much?

catgirl1976 Fri 19-Aug-11 11:00:40

My DH has sexsomina which is not a problem as he doesn't sleep anywhere it could be a problem. He has had sex with my while asleep on a number of occasions and is genuienly asleep and does not remember a thing.

However, there is NO WAY he would be able to go downstairs and make himself a cup of tea, so that seems very strange.

Whatmeworry Fri 19-Aug-11 11:01:19

The fact that he made a cup of tea after raping the 16 year old

Where did you get that from - I didn't see that in the linked article?

GeneralDreedlesNurse Fri 19-Aug-11 11:02:53

It's not just men it affects, however, the media makes light of it in this instance .......no mention that is has been used as a "successful" defence in rape cases
www.closeronline.co.uk/RealLife/Reallifestories/lisa-hunt-i-cant-stop-having-sex-in-my-sleep.aspx

edd1337 Fri 19-Aug-11 11:03:06

HeIsSpartacus. Fair point. You'd have a burden of proof. I mean nowadays it seems rapists (and those accused) are more likely to be guilty until proven innocent

Graciescotland Fri 19-Aug-11 11:04:51

If memory serves, murky depths of law school here, the act of rape requires intent (mens rea) no intent = no rape (legally speaking).

I'm not saying it's reasonable (or fair) just that they were not legally guilty of rape.

HeIsSpartacus Fri 19-Aug-11 11:06:04

catgirl1976 Do you think he would have sleep sex with a man who was in the same bed as him (or indeed anyone, a small child, his own children)? (sorry not meaning to be offensive here to your DH because I just can't understand what state someone is in while they are doing it - how if the person is entirely unaware of what they are doing they are able to remove the victim's trousers etc while victim is sleeping as in one of the cases? or indeed why sexsomnia means that the sexsomniac does not end up raping people against his own sexual orientation for example?)

What precautions does he take and how does it affect where/how he sleeps if there are other people in the house? Is he nervous about sleeping with other people in the house or around?

AyeRobot Fri 19-Aug-11 11:08:01

And that is why these type of cases need to be pursued through the civil courts, Gracie.

When I win the lottery.....

HeIsSpartacus Fri 19-Aug-11 11:13:43

Whatme I will find the other article where it mentions tea - I posted a different one.

Here is the victim's side of the story www.mirror.co.uk/news/top-stories/2011/07/10/sexsomniac-rape-case-girl-breaks-silence-to-tell-of-agony-115875-23261708/

To be fair, the mother put the daughter to bed in the marital bedroom because it was cooler and she had a temperature - Davies was asleep in the bed, but awoke and was told his step-daughter was there. She also says he used her name and called her a horny bitch but afterwards he confession to his wife he had thought he was having sex with her (the wife), despite also claiming he had no memory of the event.

If you know you have a sleep disorder which causes you to have sex while asleep, you should have a duty to make others aware of it and take precautions to make sure that you don't attack whatever female is in the vicinity if you fancy a nap. Responsibility should fall very heavily on the shoulders of the sex-somnia sufferer.

Morloth Fri 19-Aug-11 11:21:09

If and I say IF this is real, then upon waking a decent man would be horrified and be begging the police to arrest him and ensure that he never hurts anyone else.

There is no excuse for rape. None at all. If the victim didn't want to have sex then it is rape, pure and simple.

catgirl1976 Fri 19-Aug-11 11:25:56

Its an interesting question spartacus. I think if he was sleeping in the same bed as a man he probably would attempt it. He wouldn't go to another room IFYSWIM but if someone was there next to him then I think would "have a go". I don't think he would be a risk to a child because I still think that even asleep he would know the difference (but due to size, not age so teenager would be a risk if that make sense?).

I think the occurences happen with us because I am "there" next him and don't put up a huge resistance. It would be very hard to wake him (I have tried and you would be amazed how hard) but it IS possible.

Personally - even though I have this experience of it, I wouldn't see it as a defense for rape as I believe that he retains a level of awareness (very very small but still there) and there would be a point at which he could be woken up. I don't think he would be a danger to a child because of that and I don't think he would rape a man (although in the unlikely event a man was snuggled up next to him I think it is possible he would attempt but unlikely it would get to that point if that makes any sense at all) so I don't think he would be capable of having sex with a woman without being aware of it on some level however small that awareness was.

I think the fact he would know the difference between an adult and child when asleep shows there is still some awareness. It may be a small amount but it is there so for me its not a defense because of this and if someone knows they really dont have any control whatsoever, then they should take precautions.

Not sure if that makes any sense....

Whatmeworry Fri 19-Aug-11 11:29:39

@catgirl, @spartacus I wonder if the mother of the teenager in the Davies case was aware of his apparent affliction. If she was you'd assume she wouldn't have put her daughter there?

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