Sexsomnia – A Legal Defense to Sex Crimes?
What is Sexsomnia?
Sexsomnia, also referred to as “sleep sex,” is a particular form of parasomnia. Parasomnias are various categories of sleep disorders that involve abnormal behaviors, emotions, body movements, and dreams that occur while falling asleep, during sleep, between sleep phases, or during arousal from sleep. Sexsomnia involves a person engaging in sexual acts while in non-rapid eye movement (NREM) sleep. Certain sexual behaviors are normal during sleep such as, nocturnal emissions, nocturnal erections, and sleep orgasms.
People who suffer from sexsomnia often have no memory of their sexual behaviors during sleep although they may appear to be fully awake. This sleep disorder has been recognized as a criminal defense in sexual assault cases.
The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), the taxonomic and diagnostic tool published by the American Psychiatric Association (APA) has classified 11 groups of sleep-wake disorders. These include insomnia disorders, hypersomnolence disorders, narcolepsy, obstructive sleep apnea hypopnea, central sleep apnea, sleep-related hypoventilation, circadian rhythm sleep-wake disorders, non–rapid eye movement (NREM) sleep arousal disorders, nightmare disorders, rapid eye movement (REM) sleep behavior disorders, restless legs syndrome (RLS), and substance-medication-induced sleep disorders. Sexsomnia is classified under NREM arousal parasomnia.
Symptoms
Symptoms include but are not limited to: masturbation, fondling, intercourse with climax, sexual assault or rape. Someone witnessing an individual experiencing an episode of sexsomnia will note the appearance that their eyes are open. The eyes are typically described as being “vacant” and “glassy”, and give the appearance of the individual being awake and conscious, even though the individual is completely unconscious and unaware of their actions.
Causes and Risk Factors
Possible causes can include: traumatic brain injury, stress, sleep deprivation, use of alcohol or drugs, and other pre-existing sleep disorders. Risk factors include sleep disruption or sleep apnea, sleep related epilepsy, and certain prescription medications.
Legal Cases
People v. Ellington
In People v. Ellington, Joseph Ellington was charged with six counts of lewd acts on a child under age 14. Mr. Ellington’s family history was notable for sleepwalking in his daughter. He had no prior criminal history and used marijuana chronically.
The first victim (A.), a nine-year-old friend of Mr. Ellington’s daughter, testified that he put his hand inside her (A.’s) clothing on several occasions. A second victim (K.), another nine-year-old friend of Mr. Ellington’s daughter, testified that he pulled down her (K.’s) tights and panties and put his finger on her “privacy”. K. testified that Mr. Ellington had touched her in the same two places on another occasion when she stayed overnight with his daughter.
Mr. Ellington testified that he sat next to K. and subsequently fell asleep. He stated that he did not recollect what happened. Mr. Ellington’s wife described him as a restless sleeper who would wake up violently if startled. She testified he would sometimes make sexual advances in his sleep. She reported that he did not respond when spoken to during these episodes and that he occasionally would sit up and bark out an order that she could not understand.
Defense expert, Clete Kushida, MD, was retained the day before he testified and did not conduct any interviews or clinical examinations. He presented literature and general information regarding sleep disorders. The jury found Mr. Ellington guilty of one count of oral copulation for the alleged offenses against both victims, but was unable to reach a verdict on the other counts and enhancement charges. Subsequently, the court declared a mistrial as to those counts and the enhancement allegations were stricken.
Before sentencing, Dr. Kushida performed a sleep study on Mr. Ellington, who motioned for a new trial. The defense presented Dr. Kushida’s report from polysomnography, which demonstrated “nonspecific subtle indications” that required further interview and evaluation. The court denied Mr. Ellington’s motion for new trial as they determined that the meager evidence of “nonspecific subtle indications” would not have any impact on the result of the trial. The appellate court affirmed the judgment. Mr. Ellington was sentenced to six years.
State v. Scott
Adrian Scott was charged with three counts of sexual battery by an authority figure and two counts of rape of his stepdaughter. Mr. Scott’s stepdaughter reported that he fondled her groin while the family was sleeping in close quarters. On other occasions, she reported similar behavior when he had fallen asleep in her room. Mr. Scott reported no recollection of this behavior. The victim was between 13 and 18 years of age during the alleged incidents.
Sleep medicine expert, J. Brevard Haynes, MD, conducted a forensic evaluation of Mr. Scott. Dr. Haynes interviewed Mr. Scott’s spouse, who reported that he had fondled her vagina while asleep on several occasions without recollection. Dr. Haynes performed polysomnography and a mean sleep latency test, which failed to show aberrant sexual behaviors during sleep. Dr. Haynes opined, “[S]exual behavior in sleep parasomnia is the explanation for [Mr. Scott’s] touching of his stepdaughter”. He testified that the basis of his opinion was due to the following (1) [Mr. Scott’s] history of night terrors and sleep walking, (2) he has exhibited similar behavior with his wife, (3) his behavior is in keeping with that reported in other individuals with this parasomnia, (4) there is no history of vaginal foundling [sic] during wakefulness, (5) this behavior is not in keeping with his character.”
The state filed a pretrial motion in the criminal court for Davidson County, Tennessee, to exclude expert testimony. The trial court determined that the expert testimony was not sufficiently trustworthy and reliable to be presented to the jury. A Davidson County grand jury found Mr. Scott guilty on all five counts. This case reached the Supreme Court of Tennessee. The court determined that the trial court erred by excluding Dr. Haynes’ testimony regarding sexsomnia, and the judgment was reversed and remanded.
Swedish man acquitted of rape with sexsomnia defense
Mikael Halvarsson was acquitted of rape in Sweden using to the sexsomnia defense. Charges were brought against Halvarsson after reports of sexual assault were filed by his girlfriend at the time. Upon investigation, Halvarsson was found still asleep in the alleged victim’s bed when police arrived.
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