Vera Baird QC, Co-Director of Astraea: Gender Justice (Research and Education) has given us permission to use the following article about the ‘defence’ of ‘Sexomnia’ in rape cases.
In Coventry CRASAC provides confidential support and advice if you have been raped or sexually abused.
Historically, rape defences have sought to move the responsibility from men and to blame women, for instance for wearing the wrong clothes, having the wrong amount to drink or for not uttering the word “no” plainly enough. Relatively new is a defence that some men can be wholly without responsibility for sexual assaults because they may be unconscious and asleep while having sex. In at least four British cases, defendants have been acquitted of rape in this way and freed. These verdicts are arguably wrong in law. They are certainly a travesty for the women with whom they had forced sex and any such defendants present an ongoing threat to those who may encounter them asleep in the future.
In December 2005, a York man was acquitted of raping a woman with whom he had had a night out and who slept in his bed whilst he slept on the sofa. She woke to find he had removed her trousers and was having sex with her. He said that he had been a sleepwalker since he was 13 and remembered nothing of the attack. [i]
In July this year, BBC Wales reported the acquittal at Swansea Crown Court of a man who had sex with a 16 year old who was sleeping on top of the bed in which he was asleep. He called his wife and ex partner to testify that he often “groped” them in the night without remembering anything the following morning. [ii]
In 2007, an RAF mechanic was acquitted though he drank a bottle of vodka at party before getting naked on top of a 15 year old female guest who was sleeping in the living room. He said he didn’t remember anything. [iii]
There is an online report of a Liverpool case in March 2011 in which CPS withdrew a rape prosecution when presented with evidence that the accused man suffered from this kind of unconscious sexual behaviour which has been called sexomnia.[iv]
‘Sexomnia’ was clinically recognised 2003 by some Canadian researchers. It is said to be akin to sleepwalking and likely to occur in the same people. It is described as parasomnia and as a serious brain disorder.[v] It increases with sleep deprivation, stress and alcohol but it can be controlled by anti-anxiety drugs.[vi] It is apparently a purely heterosexual disease. It is unclear whether it has been fully challenged in court, as it clearly ought to be. For instance if an alleged sexomniac were partially conscious and not wholly unconscious, he might still form the necessary intent to be guilty of rape even if his inhibitions were affected by his semi-conscious state, since automatism is a defence only where there is a total destruction of voluntary control; impaired or reduced control is not enough[vii]. There ought to be challenges to the diagnosis in general and to its application to the specific defendant. Further, since it does not seem to be suggested that a sexomniac seeks sex every time he is asleep, there should be further challenge to the likelihood of its occurence on the date in question and to the factual compatibility of his behaviour that of a man over whose conduct he says he has no conscious control. At least one member of the Royal College of Psychiatrists has expressed doubt as to whether an unconscious person could carry out something so complex as having sex[viii].
However, it has been legitimated in these recent cases and has to be taken seriously now, because of the profound danger it presents to women.
Most crimes consist of a criminal act and a state of mind, like intention or recklessness. However if someone is asleep they are not in control either of their body or their mind but are acting involuntarily in a state of automatism. That is the claim in these cases and automatism is a recognised defence in law.[ix]
If automatism is raised the court must decide whether, it is sane or insane automatism. The terms “sane” and “insane” are used here in a specific legal sense, rather than as psychiatric terms with a precise modern meaning. A finding of sane automatism would bring a complete acquittal but where the automatism is insane, the verdict, although not guilty, will be subject to the rider ” by reason of insanity” and will require that the defendant be sentenced to a hospital order or another psychiatric disposal.[x] All the cases referred to above concluded with outright acquittals.
If a defendant at trial puts his state of mind in issue, through evidence of automatism, the prosecution may argue that the defence really amounts to insanity. Although expert evidence will be important it is the judge who must make the decision[xi]. Sane automatism is when an external factor such as the consumption of alcohol or a blow to the head causing concussion is responsible for the malfunctioning of the mind.[xii] Insanity was defined in M’Naughten’s case[xiii] in 1843:-
“a defect of reason caused by a disease of the mind so as to not know the nature and quality of the act he (the defendant) was doing.”
As Blackstone’s Criminal Practice make clear[xiv]:
“The defence of insanity …today operate(s) largely as a restriction on what might otherwise be a complete defence based on ….automatism”
In a case called Burgess,[xv] where a sleepwalking man hit his girlfriend on the head while she was asleep on the sofa, the Court of Appeal said that if sleep-associated automatism is caused by a functional disorder of the mind, as opposed to a factor like alcohol, it fits the M’Naghten definition of insanity and is therefore insane automatism.
That precedent suggests that the recent rape cases are examples of insane automatism, caused by sexomnia, as a functional disorder of the mind. That appears to be so even in the case of the RAF mechanic, whose automatism, at first sight, might be thought to have been triggered by alcohol, because the reports make clear that he did not say that he was in drink at the time but relied, instead on sexomnia.
Such acquittals present a serious cause of concern firstly as to the effect on the woman. The fact of sex may well have been admitted by the defendant at court. His defence is not that she consented but that he was asleep. So far as the complainant is concerned she has been raped. Indeed Judge, jury, prosecution and defence may all agree that she has suffered unwanted sex. She is likely to be as traumatised as any other rape victim[xvi], perhaps more so since the man is seen merely to have followed a thoughtless impulse in his sleep. It may be harder to recover, too, if one can never understand the assailant’s motive and when looking for an explanation finds only a blank mind looking back. There is an additional danger, that in the aftermath of an acquittal, it will be assumed that there was no rape at all and therefore no suffering and no survivor in need of support.
The acquittals raise wider issues too. It is a frequent incident of modern life that friends and even acquaintances of opposite sexes stay overnight in each other’s homes. Despite that obvious reality, women are often blamed if sexual assault occurs. However, in two of these cases, the women were kept totally in the dark by each man about the specific danger he knew he presented. In the Swansea case he called evidence that he groped women in his sleep; in the York case, he knew, at least, that he sleepwalked. Whether or not that could ever be argued to be criminal recklessness, especially since neither man appears to have sought treatment for his affliction, it is clearly morally reckless for a man with that personal knowledge to invite an unknowing woman to sleep in his home. That is blameworthiness which ought to aggravate an offence of rape with which he is convicted and should influence the nature of the order made.
The further concern is that such acquittals have had the effect of freeing men who themselves assert that they suffer from a continuing disease which may cause them to have sex in their sleep with unwilling women.
Professor Ormerod notes that the true mischief which underpins the distinction between the two kinds of automatism is :[xvii]
“the likelihood of danger posed by uncontrolled recurrence of the mental condition”
He quotes Lord Lane’s judgment in the case of Burgess: [xviii]
“if there is a danger of recurrence that may be an added reason for categorising the condition as a disease of the mind”
Clearly, that risk is present in these cases with the possibility of traumatic consequences for victims such as these woman complainants. Complete acquittals leave the defendant free as to his future conduct and without any obligation to seek medical treatment. It is not fanciful to have concern not only for other women guests who may sleep in his home from time to time but as to what risk attaches to women from him sleeping overnight in an airport with a queue of passengers, or from him falling asleep on a train.
If indeed this disease is to be taken seriously, all parties must appreciate the dangers which follow from a finding that a man will have sex with unwilling women whilst he is unconscious through sleep. The decision as to whether the defence applies at all and if so whether any automatism falls into the sane or insane classifications are taken by the judge.[xix] He will require substantial assistance from the Crown as well as the defence. It is unlikely that CPS Liverpool should have withdrawn a prosecution on mere receipt of evidence of sexomnia, without challenging it at every stage, so as to put the decision into court and to ensure that it is taken in full knowledge and appreciation. The medical evidence of sexomnia makes clear that it can be treated so that a hospital order or another psychiatric disposal which will achieve that will be in everyone’s interests.
The CPS website now contains guidance for prosecuting these cases. It says that it is “essential that this defence is robustly challenged” That is a view with which we should all agree.
[vii] AGs Reference (No2 of 1992) (1994) QB 71
[ix] See Blackstone Criminal Practice 2011 at A1.7
[x] See discussion Smith and Hogan Criminal Law, 12th Edition by Professor David Ormerod, at P.280
[x] Smith and Hogan;Criminal Law 12th Edition at page 282 mischief
[xi] Blackstone ibid at A3.13
[xii] Smith and Hogan ibid at P.280
[xiii] M’Naghten’s case (1843) 10Cl&F 200 at page 210 Tindal CJ
[xiv] At A3.13
[xv] R v Burgess (1991) WLR 1206
[xvi] For instance, see description of the impact of the RAF mechanic’s conduct on the complainant at http://www.dailymail.co.uk/femail/article-474209/Can-killer-sleep.html
[xvii] Smith and Hogan ibid at P.282
[xviii] R v Burgess ibid
[xix] R v Burgess ibid at P.1212