Court of Appeal rejects father’s sexsomnia claim after indecently touching his daughter

A father was convicted of indecently touching his daughter. He has now tried to appeal the conviction.

Warning: This story contains references to sexual harm.

A father found guilty of touching his daughter indecently has tried to have his conviction overturned by claiming he suffers from sexsomnia.

He maintains he has no memory of the offending and has argued he did not consciously touch her sexually.

Sexsomnia, also known as sleep sex, is a type of sleep disorder that applies to behaviours people might experience or exhibit while asleep, falling asleep or waking up.

Despite being sentenced for the offending, he was on bail pending his challenge to the Court of Appeal.

On Monday, it released its decision, in which it set out the background to the case.

The primary-aged girl, who resided mostly with her mother, spent the night at her father’s home in 2019.

Following the stay, she revealed to her mother that he had touched her “privates” while she was in bed.

The man, who cannot be named in order to protect the identity of his daughter, denied a subsequent charge of doing an indecent act on a child and one of breaching a protection order by doing that act.

The Court of Appeal considered the man's case. Photo / Mark Mitchell

He did, however, admit three charges of breaching the protection order in relation to the mother, whom he was trying to resume a relationship with.

At the 2021 trial on the charges relating to his daughter, the man’s counsel investigated a defence of sexsomnia, but a consultant psychiatrist and sleep specialist could not offer a confident diagnosis.

At the time, the doctor said there were multiple factors suggesting sexsomnia was remotely possible but not very likely, and only one factor strongly suggested it.

That factor was a reported statement by the girl’s mother who acknowledged to the doctor in a phone conversation that the man had “done things” to the mother in his sleep.

Following a sleep study, the man was diagnosed with moderate obstructive sleep apnoea, and he also displayed periodic limb movements. But no other evidence of abnormal sleep behaviours was noted.

The doctor concluded the likelihood of sexsomnia explaining the offending was low.

The man’s defence at trial was instead that the girl was mistaken about being touched. It was suggested that her complaint may have stemmed from a conflict between the parents over her care.

The jury found him guilty and he was subsequently sentenced to concurrent sentences of eight months’ home detention on the charges relating to his daughter and the breaches of the protection order in relation to her mother.

Then last year, the man launched an appeal against his convictions relating to his daughter on the ground there was fresh evidence to prove he suffered from sexsomnia.

He argued he has a viable defence of “sane or insane automatism”. Automatism is an act committed during a state of unconsciousness or grossly impaired consciousness.

The Court of Appeal decision said the man and the girl’s mother had been engaged in Family Court proceedings over her care and that his conviction had naturally raised questions about the extent to which he should have contact with her.

Both parents had sworn affidavits.

In the mother’s, she said: “[It] is correct that [the man] touched me while he was asleep.”

That statement led the man to seek a further report from the consultant psychiatrist and sleep specialist, who concluded that because there were no other “bed partners” for the man to rely on, the woman’s statement was “crucial” in making his diagnosis.

He formed the opinion that the possibility of the man having sexsomnia “should be strongly considered” and pointed to supporting information, such as a family history of parasomnias and results of the man’s sleep study.

An affidavit was given by the doctor. One was also provided by a consultant forensic psychiatrist called by the Crown.

That doctor found the likelihood that sexsomnia explained the offending was “almost completely absent”.

He said it was remarkably common for people accused of an offence to disclaim any memory of the incident, but rarely does parasomnia sustain a defence of automatism in practice.

When considering the application, the Court of Appeal accepted the woman’s affidavit as fresh evidence but found it was not cogent, meaning it did not tend to prove sexsomnia as an explanation for the offending.

The decision said there was very little collateral information to support such a diagnosis, which is an uncommon condition.

The Court of Appeal ruled the evidence would be insufficient to lead a jury, acting reasonably, to entertain a reasonable doubt.

“A finding of automatism founded on sexsomnia could not be reached without expert evidence.

“The expert evidence here points only to a possible diagnosis which cannot be confirmed without further investigation, such as an interview with [the man’s] previous bed partner.

“In the absence of evidence, an appellate court will not speculate on what such investigations might disclose.”

As a result, the Court of Appeal ruled the new evidence did not point to a miscarriage of justice.

The application for leave to adduce further evidence was declined and the conviction appeal was dismissed.

The man’s bail was revoked and it was ordered that he resume serving his sentence of home detention on July 24.

There have been other cases of sexsomnia being used as a defence in New Zealand, including a man in Rotorua who is appealing his conviction and sentence for raping a teenage girl, and another where a man had his conviction overturned after he successfully argued sexsomnia was the reason he indecently assaulted a woman at a party.

Tara Shaskey joined NZME in 2022 as a news director and Open Justice reporter. She has been a reporter since 2014 and previously worked at Stuff where she covered crime and justice, arts and entertainment, and Māori issues.