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

I can't understand how this happens when you share a bed with someone you are not related to. I sometime have sexsomnia (when stressed and sleep deprived) this it only happens with my DP and never when I shared a bed with anyone else.

That should say in a relationship with not related to. Sorry had a squirmy baby on my knee :O

well first thing i think you shoudl look into is to get some counselling, your emotions are locked away in the unconscious and you have not dealt with them and they are coming out in this way it is not uncommon

also you are not attacking him you are lashing out in your sleep but if you were attacking him and he was being injured and harmed by what you were doing then the law should not ignore him being harmed

i think lashing out in your sleep is very different to getting our of bed going into another room and raping a child or woman. how many men actually admit to raping they don't it is hard enough to try and get a conviction without having another excuse for men to use as a reason for rape

victoria Do you think it is because you are female so have to find someone that is consenting? I mean if someone just ignored your advances it wouldn't come to anything IYSWIM? Do you know for a fact that you haven't attempted to touch another person in your sleep?

well first thing i think you shoudl look into is to get some counselling, your emotions are locked away in the unconscious and you have not dealt with them and they are coming out in this way it is not uncommon

also you are not attacking him you are lashing out in your sleep but if you were attacking him and he was being injured and harmed by what you were doing then the law should not ignore him being harmed

i think lashing out in your sleep is very different to getting our of bed going into another room and raping a child or woman. how many men actually admit to raping they don't it is hard enough to try and get a conviction without having another excuse for men to use as a reason for rape

I see your point FreudianSlipper but a part of me can see how it would be a tradgety twice over if a woman's life was ruined by a rape and if a man who is good and decent but suffers from a genuine condition goes to prison and is branded a monster his whole life.

Obviously in the cases in the OP we don't know all the ins and outs but I hope the jury genuinely felt that the accused were "innocent" . In the case of the 4 year old I hope that the man knows now that he should always stay away from children (or has been legally required to stay away from children)

Well Lola other the DP the only other people I have shared a bed with are my sisters and I am confident they would give me a whack if this happened. The only reason I know its happened with DP was the result of a chance conversation with him saying last night was nice and me asking why what happened? Usually, how can I say it? I make advances and then wake up in the middle of it which is rather disconcerting.

wake up in the middle of it which is rather disconcerting

Dh and I do this occasionally, neither ever really knows who started it, we seem a bit confused then usually go back to sleep.

"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"

Would you include changing rape to a non-gender specific offence in this also?
To be honest I think that a reclassification of the crime could help a great deal to improve conviction rates especially when dealing with issues such as fraud or threats vitiating consent and capacity to consent, becuase it may remove some of the polarised debate which tend to surround rape and rape myths.
As pointed out above women can suffer from this condition also yet because rape is gender specific if we are to accept that a man who is reckless as to his condition and women in the house he is in (as some suggested above) the exact same conduct from a man as a woman would only see one of them charged with rape and the other sexual assault. (at least in Ireland, I'm pretty sure the definition in england still requires penetration for sex.)

I think the man should be responsible if he knew about the condition.

All of them should be forced to get treatment even if they are aquitted.

Would a woman who had sexomnia and woke whilst having sex with a man be able to have the man arrested for rape as technically even though she initiated sex she hasn't consented?

What about the women that suffer from this condition? as they are asleep when they are having intercourse and can not give consent, is the man they are having sex with guilty of rape?

he wouldn't have the requisite men rea as he'd either be asleep himself or have a fairly solid defence that he was not reckless to her non-consent and believed her to be consenting.

*mens rea

OMFG!!!!!!!!!!!!!!!!!111111111111111111

I haz beenz areztedz by the gramaz police

LOLS

thanks mayorquimby

So as long as there is no criminal intention or knowledge that the act is wrong then its not rape?

So a woman who has the condition (and knows she has) and has sex whilst asleep has not been raped, Because there is no criminal intent.

A man that has the condition (and knows he has) and has sex whilst asleep is committing rape.

Forgive my ignorance but I am trying to get my head around where the lines are drawn

Actus reus for rape: Non-consensual sexual intercourse, sexual intercourse for the purposes of the crime is the penetration of a vagine by a penis. ( I know england has had some reform recently so not sure if your law now includes anal or oral)
Mens Rea: The man is aware of the lack of consent or is reckless as to whether there is consent or not. (once again I know the recent reform may have altered the emphasis from the Morgan principle but not sure to what extent or how it is operating in practice)

A woman is incapable of rape as she can not fulfill the actus reus i.e. penetration.

there is no reason why laws can not be put into place for men that have been forced to have sex with a women and for women forcing other women to have sex. as other factors are very likely to have to be taken into account i am not sure it could be as straight forward as the rape laws as they stand now where no means no

i have not heard of any cases where a man has been raped by a women who has physically held him down and forced herself on him or he has said no and she has carried on but i have of men who have been drugged adn claimed to have been raped (more so by other men) this should not be dismissed but it is as we know very very hard to prove also with drugs beign involved many men are unable to have penetrative sex but they could have been sexually assaulted

As a man with sexomnia I will shed some light on my personal experiances. I first became aware of my condition shortly after becoming sexualy active. Fortunatly I was involved in a relationship with a more mature woman who had encountered a sexsomniac before. I myself will initiate sex with an adult or near adult who is sharing a bed with me. I dont personaly leave the room im in or even get out of the bed im in.

Having said that I will initiate sex with people in my sleep, I take very great care to NEVER EVER put myself in a position where I could do something I would regret for the rest of my life. On no occasion will I sleep in a room with someone who is unaware of my condition. Also I will not sleep in a room with someone I would not be happy to have sex with (I only sleep in a room with my wife now). To do anything else would be like playing sexual Russian Roulette. I feel any person who knowing they have sexomnia sleeps in a room/bed with an unknowing person is being very reckless indeed.

If anyone wishes to speak further on this matter im happy to share my email adress, feel free to contact me on [email protected]

All the best out there Andy

sorry that email is [email protected]

FreudianSlipper This is wiki on the Joyce McKinney "rape" case. The inverted commas are because she could not be charged with rape, it had to be indecent assault. It was very high profile at the time. But as you will see from the wiki, it's presented with lurid sex scandal headlines.

The thing is that rape is not a single quick act like punching someone or stabbing them. It involves having sex with a person against their will who is screaming and struggling. Not waking up in these situations I find unbeliveable.
Lola,
how long do you think you would stay asleep if your partner was screaming and struggling against you?
I remember one of these cases the guys girlfriend said he had "tried it on with her" several times and one expert witness said it was not impossible he could have been asleep. Thiw was succsessful despite the fact he had never managed to have sex with his girlfreind whilst asleep even though he nearly always slept next to her, while he had only ever slept near his victim once and she screamed and fought him, and several expert witness said it would not have been possible for him to stay awake in this situation.

I just think juries are very keen to find not guilty verdicts in rape cases where the victim was female. i am certain that if a homosexual man tried to use sleepwalking as a defence to raping a straight man it would not work for a second. Apparently women are much more likely to find not guilty in rape cases then men. An american sex crime prosecutor wrote that in America if you want a guilty verdict try to get as many women off the jury as possible. I wonder if women are going to try to distance themselves from being a victim, whereas men are more likely to think about how they would have treated a woman in that situation and thought they would never have behaved like that?

Apparently women are much more likely to find not guilty in rape cases then men. An american sex crime prosecutor wrote that in America if you want a guilty verdict try to get as many women off the jury as possible

Fascinating that..... I wonder why it might be?

hmmmmmmm this is quiet interesting. i have epilepsy and because of this there are certain things i should not do to keep myself safe like cook on my own or take big baths, but there are also certain things i should not do to keep others safe.
i am about to have a baby and i am not suppose to bathe it on my own in case i have a seizure or an absence in which i could hold it under the water. now this is obviously a pain in the ass and being as i have been a mum before ways round it, (bath seats). but say i didnt adhere to it and the worse happened would i have been criminal reckless like a sexsomina, because i knew but didnt take appropriate measures or is it just a tragic accident cause by a horrible condition?

I find it quite strange that people whose husbands are violent to them (ok, not knowing, but punching) or have unwanted sex continue to sleep in the same bed as them. I have had separate beds because of snoring! To me, removing myself (and children) from harm's way would be a massive priority. I have had night terrors myself and my husband slept elsewhere a lot, not because of any aggression but because it was loud.

I don't really understand the need to share at all costs, and certainly not if the person is aggressive or having sex against your will, whether they intend to or not.