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Have you been keeping up with the ‘sexsomniac’ defense?

Wednesday, April 4, 2012
posted by Rita Handrich

It’s been used successfully several times since we first wrote about it back in December of 2009. In 2009, we told you about a landscaper named Jan Luedecke who got drunk at a party in 2003 and fell asleep. He woke up and then went to a woman asleep on another couch, put on a condom and raped her. She awoke to find a man lying on her. Mr. Luedecke’s defense was ‘sexsomnia’–he says he was “half-asleep” and he was acquitted!

After the appellate court upheld Luedecke’s acquittal in February 2008, the woman told reporters, ‘I know what happened, and he knows what happened. I am not out for revenge, but I believe in accountability and consequences for actions, and he has not faced any of them’.” 

And he isn’t the only one. Multiple male defendants have protested they sexually assaulted women while “asleep” and have been acquitted. Take a look at this story from November, 2008 and this one from October, 2009 and this one, from January, 2011.

While juries are reluctant to acquit based on “my brain made me do it” defenses, we have been following this area since we began our blog. Even though scientists working in the area generally believe we simply do not know enough about the brain to “prove” assaultive behavior is caused by brain “misfires” or “faulty wiring”–expert witnesses continue to testify to the contrary. In the instance of the ‘sexsomnia defense’, they have been able to convince jurors to acquit despite the fact that a woman has been sexually assaulted.

Finally, though, there is a ‘guilty’ verdict in a ‘sexsomnia defense’. This one has a twist though. The prosecutor pointed out all the inconsistencies in the defendant’s story by comparing the defendant’s story with the stories of sexual assaults found by juries to be driven by “faulty brain wiring”.

This strategy is akin to what we recently documented with the ‘epilepsy defense’ although, in that instance, despite documented seizures, the defendant was held accountable for his behavior and sentenced to jail.

In the most recent sexsomniac defense, 20-year-old Zack Thompson pled sleepwalking/sleep disorder and no recollection of raping a 17-year-old girl at a Portugese resort. Sleep disorder specialists tested him, found his behavior and subsequent memory loss of the event to be likely due to heavy drinking rather than a sleep disorder and he then pled guilty to rape. He is now serving 6 years in prison.

“Nottinghamshire Police sought guidance from experts about the condition and invited sleep disorder expert Professor Mark Pressman to assess him.

The American psychologist, who has more than 30 years experience with sleep-related disorders, found Thompson behaviour was not consistent with the actions normally displayed by sleepwalkers.

He added that his alleged memory loss was instead “highly likely” to have been the result of drinking excess alcohol.

On hearing the assessment, Thompson withdrew his sleepwalking defence and went on the claim he was “insane”.

This too was rejected by an experienced psychiatrist.

After two-and-a-half years, Thompson finally pleaded guilty to rape at Nottingham Crown Court on March 1 this year and has now been sentenced to jail.”

Essentially, this case was seen as different and the way the case was decided gives legitimacy to the sexsomniac defense. A quick web search on “sexsomnia defense and responsibility” yields multiple stories in both Europe and Australia of successful and unsuccessful defenses in this area.

You might notice if you read these links that the original story we blogged about was from Canada. The rest are from the UK. It raises interesting questions about the local popularity of story lines and why an explanation seems to gain currency in one culture or region and not others. The other common thread among the stories appears to be heavy consumption of alcohol, generally on the part of everyone involved.

It is curious to us. US juries seem to have little tolerance for letting rapists, gropers, flashers, and other sexual offenders go free despite concurrent physical circumstances. Our mock jurors push the theme of personal responsibility for behavior.

So we find ourselves at the same question we asked in 2009. Where does responsibility end?

Zaharna, M., Budur, K., & Noffsinger, S. (2007). ‘Sexsomnia’ disrupts sleep, threatens relationships, and has forensic implications. Current Psychiatry (July)

Image taken from Zharna, Budur and Noffsinger, 2007.

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