Experts and lawyers have warned that suspected rapists are evading justice by claiming to have 'sexsomnia', a rare sleep disorder that causes sexual activity while asleep. An investigation by the Observer found at least 80 cases over the past 30 years where defendants accused of rape, sexual assault or child sexual abuse used the defence, with over half occurring in the past decade.
In about 60% of cases where sexsomnia was part of the defence, a not-guilty verdict was returned, compared to an average jury conviction rate for rape of 58% in England and Wales. Charges have also been dropped before trial after defence lawyers raised the condition. Dr Neil Stanley, an independent sleep expert, said the defence is being used 'cynically' and that 'guilty men have got away with it'.
Sexsomnia is recognised as a type of parasomnia, where sufferers engage in sex acts while in non-REM sleep with no awareness or memory. If a jury decides the accused was in a state of 'automatism', they are found not guilty. However, uncertainty in the science means it is impossible to definitively prove or disprove a claim, leaving the system open to abuse.
Many of those successfully pleading sexsomnia had no known history of sleepwalking or formal diagnosis. In about a third of cases, the defendant was under the influence of alcohol or drugs. Dr Stanley called for reforms, including more robust challenges to such claims and a less adversarial approach to expert testimony, to prevent further miscarriages of justice.
