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

It's another 'rapists charter', like the case of Morgan in the late 80s (a man asked a group of other men to rape his wife - he told them it was her sexual fantasy and that if she kicked/screamed etc it was just part of the game. It was held that the men didn't realise they were committing rape because although she massively objected they thought it was okay). Within a matter of months it was overturned. This will be the same.

Yanbu

tanif,
exactly. It is just a rapists charter.
Oddly before the advent of good DNA analysis the defence in rape cases was nearly always "the victim is mistaken, it was someone else who raped her". Now that defence is hardly heard, and suddenly nearly every defence is either "she consented" (even been used in home invasions), or "you cannot prove beyond reasonable doubt that i did not suddenly suffer from a medical condition that caused me to stay asleep whilst I had non-consensual sex with a struggling screaming woman".

There was a case where a man raped a teenage girl after they all fell asleep at a party, afterwards other men tried to grab him, but he was able to push them out of the way and run through the house to the back door and escape. ten minutes later he turned up again claiming he had no idea where he was or what had happened. As if!

All of the most serious criminal offences basically require a person to a) commit an act and b) intending to do that act. Rape is no exception. For a person to be guilty of rape, there must be evidence proving (beyond reasonable doubt) there was:

(a) sexual connection
(b) without the victim's consent where
(c) the perpetrator intended sexual connection, and
(d) the perpetrator did not reasonably believe that the victim consented.

The above vary slightly from one jurisdiction to another but, in brief, if one of them is not made out, rape (legally speaking) has not happened.

There is plenty of case law stating that a person cannot form an intention through dreaming (or, for that matter, hallucinating); this is common to all serious criminal offences, including murder, and rape is no exception. If anything, (c) and (d) present a lower threshold than their equivalents in other serious crimes.

I would say that the real issue is the willingness of Courts to hear evidence on the lines of "I was dreaming at the time - and here's evidence of my sexsomniac condition to prove it", and the consequent argument that the defendant did not in law intend any sexual connection that took place. However, Courts aren't entitled to exclude evidence just because they don't like it very much.

So YABU, but only in the sense that a "sexsomniac" defence is legitimate enough under the law as it currently stands.

"It was held that the men didn't realise they were committing rape because although she massively objected they thought it was okay"

It wasn't they were convicted of rape.
However the principle that the mens rea for rape required that the men were aware the woman was not consenting or they were reckless as to her consent was accepted however based on the facts the jury did not think it applied to the facts of this case.

Tanif,

Morgan is a horrible case, but IIRC the law has actually been changed then to make rape easier to prove. Basically:

(d) the perpetrator did not reasonably believe that the victim consented.

has replaced

(d) the perpetrator was reckless as to whether the victim consented.

To illustrate how significant this is: if the parties are drunk, it is very obvious to say that the perpetrator lacked reasonable grounds. It is a heck of a lot harder to say the perpetrator was reckless if he was too drunk to know what he was doing. I have heard that the conviction rate for prosecutions brought is very low. I wonder if this is because the police are bringing cases that would simply have been too hard under the law as it previously stood.

Heissparticus: It's impossible to say that a sexsomniac can be reckless in this sense simply by sleeping in the same bed as another person: at most, (s)he is reckless that sexual connection might occur during sleep, which is not the same thing as actually knowing that sexual connection is taking place, and simply not caring whether the victim consents.

In theory drunkeness sould make it easier to prosecute as self-induced intoxication is not a defence to crimes of basic intent and the decision to get intoxicated is often seen as being sufficiently reckless to satisfy the mens rea.
Also I thought that the conviction rate for cases actually brought to trial was higher than average, in the mid 70%'s, could anyone clarify?

Hmm. ISTM that the decision to get intoxicated couldn't be regarded as recklessness concerning what one might do while intoxicated. That seems to be stretching the point a bit far. It is also worth noting (although this is a predominantly British messageboard) that the basic/specific intent doctrine doesn't exist outside English law.

It wouldn't surprise me at all if cases brought to trial in the 1970s yielded a higher conviction rate - that is if the police were only bringing strong (and therefore probably fewer) cases.

Just for the record, I wasn't comparing the principles of Morgan to the sexsomniac defence, just pointing out the 'rapists charter' similarity and the fact that it probably won't continue to stand as a defence in the future.

sorry what does ISTM stand for?

Basic/specific distinction exists in Ireland also, but yes you are right I think we often assume all users of this board are from the british isles.

I think my husband (and I ) suffer from this. It is usually (though not always) when he has been out for an evening and has had more then he would usually drink, which to be fair isn't a lot. He will "try it on" and be more forceful than any other time. It is quite distressing but I completely understand that he is in NO WAY aware of what he is doing. Fortunately he is easy to shove off/stop and at that point I will go to the spare room. Or we will agree beforehand that he will sleep in the spare room. He is mortified by this but will not go to GP as we believe it involves medication (? from our limited internet research) and due to the nature of his job, he is reluctant to go down this route.

It's not a weekly occurance and something we handle together and is manageable. I suffer from sleep paralysis so have some sympathy for those who suffer uncontrollable sleep disorders.

This is the law on rape in the UK:

Rape

(1)A person (A) commits an offence if?

(a)he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b)B does not consent to the penetration, and

(c)A does not reasonably believe that B consents.

(2)Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3)Sections 75 and 76 apply to an offence under this section.

(4)A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

I think the problem is the definition of 'rape'. Rape is simultaneouly a criminal act, and a violation experienced.

So the question 'is it a defence for rape' itself is ambiguous because to suggest it is implies that the act of rape did not happen. Yet from the victim's perspective, it did happen as it was non-consensual sex.

Furthermore, it then suggest that there is in fact no victim because no crime has been perpetrated.

I think therefore that the focus should be, as already stated on the thread, recklessness, possibly in the same way that unprotected sexual intercourse when you know you are HIV+ can be classed as a criminal act, or driving with a known medical condition is an offence particularly where you cause an accident.

There is a level of culpability, and there is still a victim, it's just finding a way in which the law can be flexed to accommodate both angles.

TigerseyeMum. I agree with you there on the recklessness point, to me it is about taking personal responsibility for ones actions.

And for an individual who refuses to take that responsibility then there does need to be legal sanction.

The point for me is. - Do I know I am sexsomniac? ..... Answer yes.
Thought process, what do I need to do to be safe myself and keep others safe?
....... Answer to self, I need to ensure I am not sleeping in a room with someone who is unaware of my condition and that person is someone who would be amenable to a nocturnal encounter with a sexualy active sleeping partener. I also need to be happy that the other person in the room with me is someone I am happy to have sex with.