Rotorua man tries to use ‘sexsomnia’ as defence for raping teen girl, Court of Appeal hears

The Rotorua Courthouse. Photo / Andrew Warner

A man who claims he was suffering from a rare disorder that means he has sex unknowingly while he sleeps is appealing his conviction for raping a sleeping 15-year-old girl at a party.

The Rotorua man was sentenced to seven years and eight months imprisonment but is continuing his fight to prove his innocence.

The man has appealed a decision to not allow continued name suppression and cannot be identified. He has also appealed his conviction and sentence and his arguments were heard in the Court of Appeal in Auckland yesterday. Justices Graham Lang, Mathew Downs and Mark Cooper have reserved their decision.

The man has twice been found guilty by different juries of raping the girl but his conviction was overturned on appeal after the first trial.

He was found guilty by a second jury last year.

Judge Phillip Cooper sentenced the man in the Rotorua District Court on January 26. During sentencing, Judge Cooper said the man maintained his defence at both trials that he suffered from “sexsomnia” and was not aware he had raped the girl.

Sexsomnia is a kind of parasomnia that affects mostly men. It can cause people to exhibit abnormal or sexual behaviour while a person is in a deep sleep.

Judge Cooper said both juries were not convinced the man suffered from the disorder. He noted the man told the girl the next morning “you’d better not tell”, which was an implied threat designed to conceal what he had done.

Judge Cooper said even the man’s own defence witness - a sex expert - conceded during the trial that if the man had said those words, he had accepted what he had done and therefore would not have suffered from sexsomnia.

At sentencing, Judge Cooper outlined the facts saying the teenage girl was at the party and had consumed some alcohol.

The man was a guest at the party and also had been drinking.

Towards the end of the party, the teen fell asleep on a couch in the garage where the party was being held. The man also went to sleep in the garage.

At some point, the girl woke to find the man having sex with her and kissing her neck. She pushed him away, Judge Cooper said.

It was the man’s version of events that he had no recollection of what happened because he suffered from sexsomnia.

“The jury were satisfied you did know what you were doing … The next morning you said to her words to the effect ‘you’d better not tell’.”

Judge Cooper said the teen had suffered significant emotional harm since the incident, in which she lost her virginity.

“Having lost her virginity in that way, it has had a profound effect on her.”

She became involved in alcohol and drugs, stopped going to school and suffered from anxiety and suicidal thoughts.

“She should not have been preyed upon for sexual gratification … Your comment that ‘you’d better not tell anyone’ was an implied threat and was designed to conceal what you had done.”

Judge Cooper said the man was now aged in his 40s, and was a father and husband. He had 17 previous convictions for a range of offences.

He noted there had been procedural delays in the case reaching a conclusion because the man had taken every appeal available to him.

“There has been no real acceptance of responsibility.”

At yesterday’s Court of Appeal hearing, lawyers Zoe Hamill appeared for the Crown and James Olsen appeared for the man.