The Crown Prosecution Service has apologised unreservedly to a woman whose rape case was dropped after defence lawyers claimed she had an episode of “sexsomnia”.
In what is thought to be the first case of its kind, defence lawyers for the alleged assailant claimed Jade McCrossen-Nethercott had an episode of the rare sleepwalking condition, which causes people to engage in sexual activity in their sleep. His lawyers claimed it left him with the impression she had consented to sex.
The CPS has now admitted it was wrong to drop the case and it should have gone to trial.
Ms McCrossen-Nethercott, who has waived her rights to anonymity, reported being raped after she fell asleep fully clothed on a sofa after a party in 2017. She had woken at 5am to find herself half-naked and with the feeling she had been penetrated, but no recollection of what had happened.
A man on the sofa next to her was charged with rape after swabs detected forensic evidence. The case will feature in a BBC documentary on Wednesday night entitled, Sexsomnia: Case Closed?
The defence’s argument that Ms McCrossen-Nethercott had an attack of sexsomnia only materialised after lawyers had access to her police video interview. She had sleepwalked once or twice as a teenager and occasionally sleep talks, something she mentioned in passing when police asked about her sleep.
Two sleep experts, one instructed by the defence and another instructed by the prosecution, suggested it was possible Ms McCrossen-Nethercott had an attack of sexsomnia on the night in question. They said this could have given the defendant the impression she was awake and consenting.
One expert concluded that “a history of sleepwalking (even if only once) at the age of 16 years, and ongoing sleep talking, or any family history, is entirely adequate to establish a predisposition to sexsomnia”. As a result, the CPS said it no longer thought there was a realistic prospect of conviction.
A person does not have the capacity to consent to sex if they are asleep. However, the law in England and Wales states that a person is not guilty of rape if they had reasonable belief in consent.
There have been more than 50 court cases in the last 20 years where an accused person has used sexsomnia as a defence after being accused of rape. However, research suggests the case of Ms McCrossen-Nethercott, who is 30 now and was 24 at the time of the alleged rape, is the first where the defence argued that the complainant had sexsomnia.
The defendant was charged with rape and a court date was set, however the CPS decided to close the case two weeks before the trial date and it was dropped in late October 2020.
Because of the way the CPS closed the case by "offering no evidence", the defendant was found formally not guilty.
Ms McCrossen-Nethercott requested all the evidence - including police interviews, toxicology reports, witness statements and the sleep expert reports. She had three months to appeal under the Victim’s Right to Review, which allows CPS decisions to be challenged.
'Never had anything like this'
Reacting to the claims she had an episode of sexsomnia, Ms McCrossen-Nethercott said: “It came completely out of the blue, and it was baffling. I’ve had two long-term relationships spanning 13 years, and I’ve never had anything like this. I don't see how this can be one isolated incident, that just so happens to be the time that somebody I would never have consented to have sex with had sex with me.”
The CPS’s own guidelines state that sexsomnia and other sleepwalking defences should be “robustly challenged”. After gathering her findings, Ms McCrossen-Nethercott appealed the CPS decision to drop her case. A Chief Crown Prosecutor, independent of the department who made the original decision to close her case, concluded that the decision to close her case had been wrong.
The case should have gone to trial, the CPS admitted, and the sleep expert opinions and defendant’s account should have been challenged in court. A jury would have been “more likely than not to convict the defendant”, they said, one of the tests a case must meet for it to be prosecuted.
However, because the defendant had been formally acquitted, Ms McCrossen-Nethercott’s case cannot be reopened.
She is now suing the CPS. “There is no hope of any justice for what happened to me. But I feel like change is needed,” she said.