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

[HeIsSpartacus]

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

Agree whatme. Despite me believing my DH retains a small degree of awareness, I would not put a teenage girl in his bed / room as I think he would be at risk of attempting something in his sleep. I can only assume she wasn't aware but that then suggests he didnt have this issue as she would have been aware of it? Seems contradictory.

YABU. If sleep-walking is an allowable defence for murder as it was in the tragic case of Brian Thomas in 2009 then it is an allowable defence for any crime.

Ah - that is a good point cog. I wasn' aware of that precendent. I think it is still difficult though as it is so hard to know for certain what the awareness level was.

GracieScotland I have just done a bit more digging and found that the other versions of recklessness just don't apply to rape (either Cunningham recklessness/Subjective which now only applies to criminal damage or Caldwell recklessness: objective, ie the risk must be obvious to the reasonable man, in that any reasonable man would have realised it if he had thought about it.)

You can be reckless as to consent in rape but the defendant has to appreciate the risk that the woman was not consenting and carry on regardless - so from that (R. v. Satnam and Kewal (1984)) it becomes clear that the law would not view a Sexsomniac as capable of appreciating the risk because they were asleep while doing the act....

but how about recklessness in putting themselves in the position where they might rape while asleep? - e.g. sharing a room with someone or even sharing a house in the cases where there has been sleep walking and rape.

I assume here the courts are saying that Sexsomniacs are not capable of forming any intention as you said - but I am just very surprised that if you can produce enough evidence in court to show you are a sexsomniac then you must also have to have had an appreciation that you are a risk to others while asleep and should take precautions appropriate to your levels of consciousness and if you don't, well you are reckless as to the possibility of harming another person.

If this wasn't rape but someone showed evidence they tended to stab people inadvertantly when asleep and failed to secure any knives in their house so they could not access them when asleep and consequently stabbed a houseguest would the courts judge differently?

Cogito What a sad case - presumably he had never been violent when sleepwalking before?

Every case has to be judged on an individual basis with the evidence available. However, somnambulism etc., has to be a permissable line of defence, even if it is ultimately not compelling. The OP proposal is that being asleep should not be a defence for a crime, specifically rape, at all. But since sleep disorders that result in involuntary and unremembered activity are a recognised medical condition, it would be wrong to that..

Yes it was a tragic case. The man had a history of sleep disorders but, on this occasion, things took a particularly violent turn for which neither he or his unfortunate wife were prepared. However, if as you propose the defence of acting whilst asleep was not allowable as a defence, poor Mr Thomas would now be serving a life sentence for murder. Rape defendants have to have the ability to defend their actions, same as everyone else.

Cogito I am saying that where you know you suffer from such a condition, and do nothing to prevent others from being harmed through taking reasonable precautions, you are being reckless, and should be as guilty as forming the intent. From what I am reading courts have no problem with that concept of recklessness as applied to criminal damage.

Cogito Rape defendants have a wider (subjective) test of recklessness applied to them ie. only they have to have think there is a risk and then ignore it to be culpable. In criminal damage cases an objective test of recklessness is applied (ie. what the man on the Clapham omnibus would think is a risk and then to go on to ignore it or not guard against it).

I think my worry is that like a bad back, it is possibly something that could be faked. There is no definitive "test" to say, yes a person has it or no they don't. I know it is real as my DH has it and I do see people saying its a made up condition. It isn't but I worry that it might be something people can fake IYSWIM.

I agree every case needs to be looked at individually with all the evidence weighed up carefully. Because I know it is real and have some experience of it then I do not think you can say it CANNOT be a defence, but I would hope there would need to be good evidence in each case where it was sucessfully used.

catgirl Has your DH ever put himself in the position (well obviously not now he's married/with you!) where he is sleeping in near vicinity/same bed as someone and not told them of his condition?

I am just thinking of plenty of occasions where I have slept in or near male friends (camping for example) and I would be most pissed off (understatement of the year) if I was raped by one of them only to be told that ah well I've always known I can do stuff like that when I'm afraid - oops sorry I didn't tell you about it before sharing a tent with you/sleeping on your sofa/sharing a bed with you.

Again.. .back to Mr Thomas' case. He had a history of 'night terrors' for 50 years which had not been treated. Was Mr Thomas therefore reckless for sleeping in the same room as his wife? Was the medical profession reckless for leaving him untreated? Was Mrs Thomas, who presumably had witnessed his night terrors many times, reckless for agreeing to sleep in the same room?... The responsibility is with the perpetrator but how far should we expect someone suffering from a medical or mental condition to alert others to it?

Spartacus - no. All his past girlfriends had the same issue so he has known about it since he became sexually active, so he has been careful not to share a bed / tent / etc with anyone (unless having sex with them was already happening or the purpose of the sharing). He has always been careful to make sure he didn't put himself in this position.

cogito Ah I didn't think those night terrors had previously involved him being violent to anyone though? Can you link me up to where you read that they did please? I thought this was the first time he had been violent

Men using this defence are not however always found not guilty.

In this case there was a conviction.

He hadn't killed anyone before, no. But the very phrase 'sleep terrors' usually involves the sleeping person being very mobile, agitated and vocal. It is quite frightening to witness. The couple had separate bedrooms at home but shared a room in their caravan where the event occurred. You can see from this article that there have been other cases in the past of murders happening either during or as a result of night terrors.

You seem to have decided that it is a permissable defence now. You're arguing that if someone knows they have the condition, they should tell others. Failing to do so IMHO would be akin to an HIV sufferer failing to alert new partners & putting them at risk .... criminal transmission or possibly GBH

Why don't they tell others that they have this condition?, take a look at the title of this thread again,

"Sexsomnia (or Sleep-Raping)"

As its's clear Sexsomnia does exist, I'd go with Cogito/Catgirl's reasoning, ie its more about determining if it was a factor on a case by case basis rather than dismissing it out of hand.

I do think the Dvies judgement is odd though, from what I read in the second article re cups of tea etc.

But, I still think the fundamental legal principle we have to stick to in ALL crimes is "innocent until proven guilty"

I am more than certain that DP suffers from sexsomnia, along with some other sleep disorders that can make him violent whilst sleeping (I got punched in the arm the night before last) or can cause injury to himself when he thrashes. It is quite rare that he does it, but when he tried the first time it was a couple of nights after we began our physical relationship, and he had absolutely no memory of me kicking him and telling him to stop, though he did stop at that.

Although he was aware that he was like this to some degree, I don't think he appreciated how serious the consequences might be if he did assault someone in his sleep. Reading this, I think we will discuss it further and put some measures in place. I already have myself between my partner and my daughter should she come into our bed, but I think I shall call a stop to any bed sharing with the children at all.

As to whether it's rape, that's a hard one. I wouldn't consider my DP a rapist, having sleep disorders myself I can understand how differently the mind works when you are asleep, and how you can do things you are completely unaware of, however I do think you should take measures to make the sleep environment safe if you do have a disorder which can injure yourself or your bed partner, so if you are aware at the time you have such a disorder and do not safeguard or even inform someone else and have sex with them that they do not consent to, then I think that is reckless.

Is it sexual assault if I were to knowingly have sex with my partner during one of these episodes without first having his consent? Just wondered, not that I would, just curious.

I have also been punched on several occasions by my DH as part of his condition. He is mortified when this has happened. I don't consider it assault as I know he isn't concious of it and I am aware of the risks and chose to still share a bed with him.

grownup I do have sex with my partner during these episodes either because I want to or because I can't stop him if I don't. I have never looked at it from the point of view of his consent which is an interesting point (although not an issue in our case as the consent is always there)

Absolutely innocent until proven guilty. Not arguing with that.

Cogito Those other cases mentioned at the bottom are interesting - the man who admitted to waking up to discover he was hitting his wife with a claw hammer and then stabbed her to death to stop the screaming - because I guess he had the ability to form the intention once awake to continue with the act.

Also another interesting point is that this man takes sedatives which apparently stop him from assaulting his wife while sleeping.

I am trying to reconcile the law's approach to recklessness to rape with recklessness in other areas (including criminal damage) and am struggling to understand why property is more protected than people!

Whatme Every case has to be considered on the facts - which is how Sexsomnia became a defence, because one case decided it was permissible. There now seems to be a rise here: www.telegraph.co.uk/relationships/sexual-health-and-advice/7826345/Sexsomnia-more-people-suffering-from-sex-while-sleeping-disorder-study-claims.html

Those stories are horrible. I wonder about the case involving the 4 year old as the mother is psuhing for a prosecution it makes me think she doesn't believe him either and if that's the case does he not have a history if she felt he was a danger presumably she would not have left him in the house with her daughter?

In the 16 year old's case if he had a history with all of his partners the mother should have known? IN which case I would like to know why she isn't in trouble for putting her teenage daughter in the bed!? What the fuck.
I also think making a V sign and smiling as he comes out of the courtroom after gettin let off shows what kind of person he was, even if he felt he was innocent.. he should accept that was wrong behaviour after ruining someone's life.

I am physically violent in my sleep, I have attacked DH on several occasions. I wake up almost immididatly so I don't think I could do any real damage, but he knows about it. And dd sleep in her own cot. I can believe someone could rape in their sleep and I am not sure if it is fair for someone to go to jail for it. I am not sure...

It seems bizarre to me that someone can be acquitted of rape when it is clear that the sex was not consensual. Surely they would be convicted of rape, but the fact that the perpetrator was not "in control" of their actions when it happened would then be reflected in the sentencing. Wouldn't the situation be similar to a person who say kills someone while suffering from a serious mental illness. They wouldn't be convicted of murder but probably of manslaughter on grounds of diminished responsibility. The person would still be dead, but the sentencing of the person who killed them would reflect the fact that they were not "in control" when they did it.

I'm just thinking of the Kirsty Merriman case in South Wales - quite clearly she was raped by her stepfather, Stephen Lee Davies, by virtue that she did not consent to having sex with him. However, while he was acquitted of rape due to his "sexomnia," it doesn't mean that she was any "less raped." Of course there is also the evidence that the sexomnia argument might not have been particularly strong (the making a cup of tea in between part) but still accepted by the court as evidence of his being not guilty.

There is also a tricky issue here - what happens if a person has a mental or physical health condition which means they are at risk of harming another person, albeit unintentionally? In the case of mental ill health, there are provisions that permit a person being detained and/or compelled to undertake treatment to reduce the risk of them causing harm to others. Would the same thing not potentially apply here? Because Stephen Lee Davies was acquitted of raping his stepdaughter, the court would have had no way of compelling him to comply with treatment to prevent him harming someone else. This just doesn't "sit" right.

Someone upthread mentioned that like back pain, it seems there is no objective "test" to demonstrate that a person has "sexsomnia," which would make it relatively easy for an accused person successfully to cite that they have this condition in their defence. I worry that like the concept of "False Memory Syndrome," (the idea that someone starting to remember childhood sexual abuse during therapy is the result of the therapist "implanting" false ideas in their mind,) which took hold in popular culture about 15 years ago, that "sexsomnia" could become the defence of choice for those who aren't able to argue their innocence on other grounds.

no it can not be used as an excuse their is still a victim who has to deal with having been raped

sadly it does not surprise me. courts and the law support men and are far more understanding to mens conditions than they are to women why becasue the vast majority involved in making and passing laws are men and so are most judges. we need to have an equal amount of men and women rewriting laws around certain crimes particularly crimes where it is mostly females who are victims

FreudianSlipper what would you do in my case, I suffer horrible nightmares about my childhood where I was abused physcially. I sometimes react and have hit my partner, he knows the situation now but when we first got together I did scare him when I started talking and flaling around.

I knew I had issues in my sleep but didn't realise the extent of the situation because I hadn't actually had a long term boyfriend at that point, I would just wake up not know what happened really, go back to sleep. So he sort of "discovered" the dangers of sleeping with me. If I had punched him in the face would it be fair to send me to prison for DV?