Sexsomnia court defence: Justice or easy out for rapists?

As New Zealand’s highest court agrees to hear a rapist’s appeal over sexsomnia claims, and another is granted a sentence reduction because of his sexsomnia, the jury remains out over whether the novel defence will result in increased justice — or be used as a get-out-of-jail-free card. Katie Harris reports.

The disorder — characterised by engaging in sexual activity while asleep — has grown in prominence as a legal defence globally and several high-profile cases, including one of a Nelson man who had his indecent assault conviction overturned after successfully arguing he suffered from sexsomnia, have put the issue in the spotlight locally.

Auckland University associate law professor Carrie Leonetti is sceptical about those who claim they have suffered from sexsomnia when they have no documented history of sleep-wake disorders.

“There have been something like 200 cases maybe globally documented, so it exists, but they’re a very small percentage of the population.”

Leonetti, who lectures forensic psychiatry, told the Herald sexsomnia most commonly presents with masturbation or sleep vocalisation. Attempted or executed sexual intercourse was “much more rare”.

“It’s very odd to me that all these people [in recent cases] sleep sex but they don’t sleepwalk and they don’t have night terrors.”

Carrie Leonetti, an associate professor at the University of Auckland Law School. Photo / Supplied

“On the one hand, you would expect somebody with sexsomnia like that to end up in the criminal justice system more often than other people, but not at the rate it seems to be presenting.”

As far as she knows, none of the cases in New Zealand involve defendants with other sleep-wake disorders or who have suffered from early-stage Parkinson’s, epilepsy or other neuro disorders that can overlap with the condition.

Many of the recent cases, she said, involve people who are in some way intoxicated, which can itself cause amnesia and disinhibited behaviour.

For a young person with no history of epilepsy or Parkinson’s, she said the more likely explanation is they were disinhibited by substance use and they don’t remember it because of their intoxication.

Taine Wanoa has pleaded guilty to one charge of rape and four charges of indecent assault, but he said he was suffering from "sexsomnia" and thought two of the victims who were in the same bed as him were his girlfriend. Photo / Supplied

”We still have this culture full of these rape myths: that women exaggerate, that women misinterpret, that women contribute to their victimisation ... part of what makes me nervous about this [defence] is that it’s part of a broader culture of excusing this behaviour.”

In the courtroom, Leonetti said the sexsomnia defence is not without risk because there is a distinction in New Zealand law between sane and insane automatism — action without conscious volition. If the automatism is caused by an internal psychiatric condition, she said it is an insanity defence.

“Contrary to popular belief, you don’t always want an insanity defence, because if found not guilty by reason of insanity, it subjects them to the potential for compulsory hospitalisation until they’re sort of cured. So, you know, somebody who’s facing maybe three or four years’ imprisonment could do 20 years in the Mason Clinic if they’re found not guilty by reason of insanity.”

Even if someone is found not guilty because of insanity, she said the victim still suffers harm as if it were intentional.

The sexsomnia case set to be heard by the Supreme Court will consider whether the Court of Appeal was correct to treat Damin Peter Cook’s defence as insane automatism.

According to the Court of Appeal decision, the trial judge’s directions to the jury applied the law as held by the Court of Appeal from the earlier, relevant case of Tony Paraire Cameron, of Rotorua.

In that case, the court held Cameron’s sexsomnia was a form of insane automatism; however, Cook submitted to the trial judge the Cameron case was wrongly decided and he should not follow it.

He wanted the judge to rule that sexsomnia was a form of sane automatism.

Criminal lawyer Marie Dyhrberg KC said because of increasing research, and sexsomnia now being recognised as a sleep disorder, they can consider using it to defend clients.

“Therefore, when we’ve got clients that come to us, and they say look I don’t know, as far as I can remember, I can’t remember anything at all. We will then start looking at whether this is a factor of a defence we can run.”

Lawyer Marie Dyhrberg KC said because of increasing research, and sexsomnia now being recognised as a sleep disorder, they can consider using it to defend clients. Photo / Sarah Ivey

Dyhrberg told the Herald while some may worry “everyone” will come to court and attempt to claim they have the rare condition, it’s not that easy.

“They will look at, say for example, evidence from partners and whatever to say yeah he always does that. He’s done that before and there’s a pattern of this.”

She said they also would consider factors like anxiety, depression, drug and alcohol use and sleep deprivation.

“It will not be an easy defence to set up.”

In the Rotorua case, Dyhrberg said the evidence from the complainant was that the man told her “you better not tell anyone” the morning after the assault.

“That would have been firstly very strongly against the defence because it’s accepted that legally in those cases, that there is no recollection later so any evidence that you have a memory that’s not going to be good for your case.

“In my career, running any sort of automatism [defence] has been rare.”

The Better Sleep Clinic psychologist Dan Ford said sexsomnia was considered a disorder of arousal, which can encompass issues like sleepwalking, and those who experience one disorder of arousal may be more likely to experience others.

“Adult men are more likely to sleepwalk than adult women. I’ve got a figure here of about 3.9 per cent of adult men sleepwalking and 3.1 per cent of adult women.

“Men are maybe twice or three times more likely to report sexsomnia.”

Over the past few years, Ford said the understanding and knowledge of sleep disorders had grown and they now know most of the time people with sexsomnia have a history of other arousal disorders.

He said anything that can disrupt sleep can cause sexsomnia for those who are more inclined to have arousal disorder events.

“It can be things like substances, alcohol, you can also see some medications will do that. Stress is one of them that usually comes up, but also other sleep disorders. So if you have something like obstructive sleep apnoea, that tends to fragment sleep and then as your sleep fragments you see these sorts of things. And interestingly, men are more likely to have obstructive sleep apnoea.”

Unstable sleep schedules, for example, long sleep-ins at the weekend, may also be a cause.

“That makes their weekday sleep more unstable and then you might start to see these kinds of things happen as well.”

He said people report experiencing sexsomnia in a range of ways, including waking up in the middle of having sex with their partner, as well as masturbating and talking dirty while sleeping.

“I had a guy get in touch and he said, ‘this happens to me, and I feel violated, but my partner doesn’t mind, she’s like, great I’m having sex with you, but I feel violated because I didn’t actually choose that’.”

In terms of treatment, Ford told the Herald while medication and hypnosis can be used to treat sexsomnia, there is growing evidence that treatment for insomnia, which deepens sleep, can help with parasomnias like sexsomnia.

“Because it deepens up someone’s deep sleep so you’re less likely to be aroused from your sleep stages.”

Anyone concerned about sexsomnia should contact a specialist, he said.

Katie Harris is an Auckland-based journalist who covers social issues including sexual assault, workplace misconduct, crime and justice. She joined the Herald in 2020.