A 40-year-old strip club owner from Sydney, Australia, has been found not guilty of rape after his lawyers successfully argued he suffers from “sexsomnia.”
Timothy Malcolm Rowland’s defence lawyers said he suffered from an episode of a rare sleep disorder involving individuals engaging in sex acts while they are not conscious.
Rowland had been accused of forcing non-consensual sex on a female friend at his apartment in August of 2022, after a night of drinking together. During the trial, counsel argued sexsomnia is a legitimate medical condition and that Rowland had been diagnosed with it by two medical specialists.
The jury was tasked with establishing whether or not Rowland was experiencing an episode of sexsomnia at the time of the alleged assault or if he had been awake and acting with intent.
After consideration of the evidence, the jury determined Rowland had not been aware of his actions and acquitted him.
The judge in the case affirmed that a jury should not assign guilt for a crime committed unconsciously. “We’re not about to punish people for acts that they have no lawful control over,” Judge John Pickering said.
This was certainly not the first criminal case involving the sexsomnia defence.
What happened to U.K. victim determined to be suffering sexsomnia when she was allegedly raped?
A 2017 case involving a U.K. woman who accused a man of rape was dropped when the criminal prosecution service (CPS) deemed she had experienced a sexsomnia episode. They told her they would be unable to secure a conviction, as the behaviour exhibited during the episode could be construed by her alleged attacker as consent.
Under British law, a person is deemed not to have consented to sex if they were asleep when the sex occurred. On the flip side, the law also states a person is not guilty of rape if they had “reasonable belief” consent was given.
The case of Jade McCrossen-Nethercott started when she was out with friends one evening and eventually went with one of them to a flat. She said around 2 a.m., she curled up under a blanket on the sofa, fully clothed, and fell asleep. But then at 5 a.m. she says she woke up to find her underwear and pants off and her bra undone. She saw a man on the other side of the sofa and confronted him.
She says he responded: “I thought you were awake.”
Ultimately, McCrossen-Nethercott did not accept the prosecution service’s decision to close her case. Instead, she requested all the evidence and was shocked by the weight given to theories put forward by two sleep experts.
She then consulted her own expert at the London Sleep Centre, Dr. Irshaad Ebrahim. He said Jade’s case was the first he had seen where a complainant victim was deemed to have sexsomnia. In all the other rape cases he had encountered, it was the defendant claiming to have had an attack of sexsomnia.
Eventually, a chief crown prosecutor, independent of the CPS, reviewed the evidence and concluded the case should have gone to trial so the the sleep experts’ opinions and the defendant’s account could be challenged.
However, her case couldn’t be reopened, so she launched a civil action against the CPS instead.
What are the criminal trial challenges involving sexsomnia?
These cases highlight complex challenges that arise when sleep disorders like sexsomnia are introduced in criminal proceedings. There are questions about the weight of expert opinions and the obvious potential for misuse of sexsomnia as a defence strategy.
Studies have documented cases of sexsomnia, including patients engaging in sexual behaviours during non-REM sleep without conscious awareness. However, these findings can lead to fear among victims that their cases will be refuted based on a spurious defence.
“If someone genuinely has sexsomnia, it’s worrying that they could be accused of assault when they were unaware of their behaviour,” says Cate Campbell, British Association for Counselling and Psychotherapy accredited sex, relationship, and trauma therapist. “It’s also very concerning that people may pretend to be affected by sexsomnia when they are, in fact, just using it as an excuse to assault another person.”
Sexsomnia is rare, with only a few hundred documented cases worldwide. As a result, there is a lack of comprehensive scientific research on the condition. Moreover, the lack of conclusive diagnostic methods makes it challenging to provide clear evidence supporting or refuting sexsomnia claims, especially in a legal context.
Despite this glaring concern, an investigation by a British newspaper stated 80 U.K. cases have occurred in the last three decades when defendants claimed sexsomnia or sleepwalking in sexual assault trials, with 51 of these occurring in the past decade. Approximately 60 per cent of cases where sexsomnia was claimed resulted in a not-guilty verdict.
However, courts around the world have begun to establish precedents for handling sexsomnia as a defence. In State v. Pratt, a Washington state court ruled sexsomnia should not be treated as diminished capacity. Some jurisdictions now recognize sexsomnia as a legitimate sleep disorder that can support legal defences based on automatism.
How do Canadian courts treat sexsomnia?
In Canadian legal cases, defence lawyers have raised sexsomnia as an issue in at least a dozen criminal cases since 2005.
Sexsomnia has led either to retrials or findings of not criminally responsible (NCR) in Canada.
“I recognize that there are members of the public who would find a (NCR) decision…to be (an) example of criminal injustice,” Ontario Superior Court Justice Clayton Conlan wrote in a 2015 court decision. “I beg to differ. NCR is not a common verdict. It has to be based on hard evidence.”
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