‘Sexsomnia’ defence helps overturn indecent assault conviction, get suppression

A man who had two convictions for sexual offending overturned on the defence of "sexsomnia" has now had his name permanently suppressed. Photo / File

A married father convicted of indecently assaulting a woman at a party had his conviction overturned after successfully arguing the defence of “sexsomnia”.

And now the man’s name has been permanently suppressed to protect his wife and children.

There have been other cases of sexsomnia as a defence in New Zealand including a man in Rotorua who is appealing his conviction and sentence after that explanation was unsuccessful in a rape case.

In the case of the man who was successful, he was initially convicted at trial on two charges of indecent assault following events in 2016 arising from his alleged conduct with a woman he didn’t know well.

They were with others at a social gathering one night when he was alleged to have indecently assaulted her.

The man was accused of going into a room where the woman slept and indecently touching her.

However, the conviction was overturned on appeal late last year after the man served an electronically monitored sentence, on the defence of sexsomnia.

The Sleep Foundation characterises sexsomnia, also known as sleep sex, as a type of sleep disorder that applies to behaviours people might experience or exhibit while asleep, falling asleep, or waking up.

With sexsomnia, people engage in sexual behaviours - which might include initiating sex with another person - while asleep and being unaware of their behaviour once they are awake.

At the time he was convicted, the District Court declined a final order for suppression, but that was appealed to the High Court.

Tears of relief rolled down the man’s face in the Nelson District Court on Thursday as he learned his name would be permanently suppressed.

The married father was granted permanent name suppression, not only because of his acquittal but because of the likely hardship caused to his wife and children if his name was published.

The Crown argued for name suppression to be lifted, partly because of the unusual nature of the case and the “sufficient public interest around the phenomena of ‘sexsomnia’”.

The man's conviction was overturned on appeal late last year after he served an electronically monitored sentence.

Judge Jo Rielly agreed that “to raise sexsomnia as a potential defence is somewhat unique, and people are interested, particularly in the current political climate”.

She accepted there would be a level of public interest in the case but in determining whether to grant permanent suppression, she also considered matters around what was alleged to have occurred, leading to the charges.

She noted the complainant’s participation in a “very successful restorative justice process”, including that the woman did not oppose suppression.

“That in itself is not persuasive but it is relevant,” the judge said.

The man’s lawyer Alec Sacheun argued that permanent suppression was warranted on a list of grounds, including the extreme hardship posed to the man’s family, particularly his wife who ran a small business.

Lawyer for the Crown, Jackson Webber, said it was “harsh” to suggest their local community would turn on the man’s wife and her business if his name was published.

In response to claims that few knew what had unfolded, Webber queried how the man had managed to keep from the community the restrictions imposed on him when he was on home detention.

Sacheun said the couple chose to fabricate a story about why the man was home, primarily to minimise the stress on the children.

Webber said “extreme hardship” was a high bar that had to be exceeded in order for suppression to be granted.

He said fears of the children being bullied at school was an unfortunate consequence of offending by a family member, but the fact the charges were ultimately dismissed did make the application different to others.

That did not however take away from the fact it was a “unique case”.

Judge Rielly said in this case the man’s wife was concerned that publication of her husband’s name would adversely affect her relationship with her clients.

She was also concerned about gossip that would give rise to the allegations on which he was acquitted.

The man’s wife was also concerned about the impact on their children, one of whom she claimed had endured significant difficulties at school at the time proceedings started.

Judge Rielly said some of the difficulties mentioned were not unusual for teenagers, but it was clear from the evidence provided that one of the children was already having an especially difficult time at an important stage in his student life.

The judge said given the level of concern expressed about the impact of bullying at school, a better course of action might have been for the parents to choose a different school.

She felt the impact on the couple’s children of finding out their father had been charged with offending of a sexual nature involving a complainant with whom he was not intimate, was likely to have a significant impact on them.

Added to that was the difficulty they might face in trying to navigate and understand why their father was acquitted, which was likely to have a detrimental impact on their mental health.

Judge Rielly also factored into her decision that the man had been acquitted, and the nature and circumstances of the proceedings.

“I am satisfied extreme hardship is made out,” she said.

She said the man posed no ongoing risk to any member of the community.

For all these reasons he was granted permanent name suppression.