‘Guilty men have got away with it’: fears over rise of ‘sexsomnia’ defence in rape cases

<span>‘Claire’, a complainant in a recent sexual abuse case, said the acquittal of the defendant, who had pleaded sexsomnia, was ‘devastating’.</span><span>Photograph: Gary Calton/The Observer</span>
‘Claire’, a complainant in a recent sexual abuse case, said the acquittal of the defendant, who had pleaded sexsomnia, was ‘devastating’.Photograph: Gary Calton/The Observer

Experts and lawyers involved in sexual offence cases in Britain have warned that suspected rapists are evading justice by claiming to have a rare sleepwalking disorder that causes them to engage in sexual activity while asleep.

They said there had “definitely” been cases where guilty people had been found not guilty, and warned of the potential for further miscarriages of justice – and harm to the public – without more robust challenges to “sexsomnia” claims put forward by defendants.

The warnings come after an investigation by the Observer uncovered a rise in the use of “sexsomnia” as part of defence cases in criminal trials. It found 80 cases over the past 30 years where defendants accused of rape, sexual assault or child sexual abuse claimed to have been sleepwalking or suffering from sexsomnia at the time.

But while there were only occasional cases in the 1990s and early 2000s, the analysis reveals at least 51 in the past decade and eight in the past year alone. The figures are likely to represent only part of the true total, with many not publicly reported. In about 60% of cases where sexsomnia was part of the defence, a not-guilty verdict was returned, the Observer’s analysis suggests. Overall, the average jury conviction rate for rape was 58% in England and Wales.

Charges against suspects have also been dropped by the Crown Prosecution Service before they even reached court after defence lawyers raised sexsomnia behind the scenes. One law firm advertised how it “kept pressure” on the CPS after it decided to continue with the prosecution of a wealthy client charged with sexual assault. The charges were dropped before the case went to trial.

It’s like they’ve said, ‘Well yeah, he might’ve sexually abused you but he did it in his sleep, so it’s OK

Dr Neil Stanley, an independent sleep expert who has provided expert evidence in trials where sexsomnia was raised as an issue, said that while some claims of the condition were undoubtedly genuine, others were not.

“It is being used cynically,” he said. “There are cases that are in the public domain where it is clear that they’re just chancing their arm. Because, of course, if it is sexsomnia, you’re found not guilty. Judges haven’t a clue. Juries haven’t a clue. So it’s worth a try.”

Stanley said attempted use of sexsomnia by defendants had “massively skyrocketed” in recent years and that such claims were very difficult to definitively disprove – meaning often “just saying, ‘I don’t remember. It could be sexsomnia,’ is enough”.

He said the current system was failing victims – and true sufferers of the condition – and called for reforms including more robust challenging of sexsomnia claims and a less adversarial approach to questioning expert witnesses, so they could provide more nuanced responses in the courtroom.

“The law seems not willing to admit that there’s a strong likelihood of miscarriages of justice. And given the severity of the offence, we should be very certain of having checks and balances in place so we take as many precautions as possible to stop miscarriages of justice,” he said. “In terms of sexsomnia, that is not happening.”

He added: “I know in my heart of hearts that there are cases where guilty men have got away with it. And that cannot be a legitimate consequence of the system. The system has to change.”

Sexsomnia is recognised in the DSM-5 diagnostic manual of psychiatric conditions and is a type of para­somnia, a disorder involving abnormal sleep behaviour. Sufferers engage in sex acts while in non-REM sleep. They might have their eyes open but will have no awareness or memory of their behaviour.

If a jury decides that an accused person was in such a state – known as “automatism” – when they committed an alleged offence, they will be found not guilty. But while lab tests and partner histories can be used to try to establish whether a sexsomnia claim is genuine, sleep experts and lawyers say the system is open to abuse because uncertainty in the science means it is impossible to say for sure whether someone was or was not suffering from sexsomnia.

Many of those successfully pleading sexsomnia in court had no known history of sleepwalking and no formal diagnosis. Other cases involved defendants performing a complicated series of actions in unfamiliar settings, which experts said were less typical of genuine sexsomnia.

In about a third of the cases, the defendant was under the influence of alcohol or drugs, and some were very intoxicated, but sexsomnia was cited as the primary factor behind their behaviour.

Sometimes, just a mention of the condition in court appears to sow a seed of doubt that can contribute to a not-guilty verdict. In one rape case, two expert witnesses said evidence for the defendant having sexsomnia was “weak” but that they could not categorically rule it out. The jury subsequently acquitted the man.

In at least one case, a man who avoided a rape prosecution after claiming to have sexsomnia went on to attack again. Joseph Short evaded charges in 2011 after saying he had no memory of an alleged rape. He was later jailed for 15 years for another violent attack. And a man convicted of strangling and beating his partner was acquitted of raping her and another woman after claiming to have been suffering from the condition.

Allison Summers KC, a barrister and head of Drystone Chambers, who has represented three clients who used sexsomnia as a defence, all of whom were acquitted, said the increase in defences using the condition could be in part because it had historically been “underdiagnosed generally” and that there were some “very genuine” cases.

But she said the presence of alcohol complicated things – “are they using the sleep defence to cover up what has happened?” – and that there was an issue of defendants “trying it on”.

“I think there are probably [defence lawyers] running these cases on fairly spurious evidence,” she added. “Juries are strange creatures and I suspect sometimes they give the benefit of the doubt when they shouldn’t.”

Summers said it was for defence counsels to investigate such claims and for prosecutors to robustly challenge them, but that this did not always happen: barristers instructed “rubbish” experts or failed to get relevant histories, or prosecutors did not properly interrogate claims in court. “It comes back to laziness and a lack of understanding,” she said.

Sexsomnia has also been used by defence teams in an attempt to discredit victims. Jade McCrossen-Nethercott, 31, from Croydon, is taking legal action against the CPS after it dropped her rape case days before it was due to go to trial after expert witnesses said she had sexsomnia.

McCrossen-Nethercott said the conclusion was made by an expert instructed by the defence who had never met her, and was based on her answers to a 15-question survey. “It was plucked out of thin air,” she said.

The CPS has since “apologised unreservedly” for its decision to drop the case and said “the expert evidence and defendant’s account should have been challenged and put before a jury to decide”.

McCrossen-Nethercott is now calling for “robust, rigorous and consistent” assessment of sexsomnia claims “across the board”, including a “thorough assessment, bed partner histories, extensive polysomnographies”.

“It has to be taken seriously to protect victims from being told they have it without significant evidence; to prevent perpetrators claiming they do when they don’t, but also for genuine sufferers, to prevent them being wrongly convicted,” she said.

Dame Vera Baird KC, the former victims’ commissioner for England and Wales, called for safeguards to be put in place to protect victims and the public. She said sexsomnia was being seen as an “escape route” by some defendants and that in cases where it arose, prosecutors needed to be consistent in applying for sexual risk orders, which can be made regardless of whether someone is convicted if they are deemed to pose a danger.

Such an order could require a person to warn future partners, or others sleeping under the same roof, about their condition, or face prison.

Baird, a barrister who was previously solicitor general and a Labour MP, said increasing the use of such orders might also deter people from using sexsomnia as a “get-out-of-jail card”. “A person who says, ‘Oh dear, I raped somebody without knowing it,’ is a danger to the public and cannot be left simply acquitted,” she said.

A CPS spokesperson said prosecutors always “robustly challenge legal defences when contrasting evidence is available” and that sexsomnia was no exception. It said any decision to drop a case in response to a claim of sexsomnia “must now be approved at the most senior level” and that victims always had the right to seek a review. However, it said it did not record data on how many cases had been dropped due to sexsomnia claims by the defendant.

The Ministry of Justice said the government had taken “decisive action” to ensure rape victims got justice and that “the validity and credibility of a defence” was for the courts to decide.

Claire (not her real name), a complainant in a recent case where the defendant was acquitted on multiple counts of sexual assault after claiming to have sexsomnia, said the verdict had a “devastating” effect. She said the man did not deny the acts took place but said he must have done them while asleep, and that he had never sleepwalked before, had no formal diagnosis, and had had “no tests done”.

The woman, a mother from Lancashire, said the process had left her “baffled”: “It’s like they’ve said, ‘Well yeah, he might’ve sexually abused you numerous times but he did it in his sleep, so it’s OK. So you’re just going to have to get on with your life and deal with it and he’s got away with it.’ It’s like they just took his word for it. There is nothing to stop him from doing it again and just saying, ‘I was asleep’.”