A Canadian court is currently hearing the case of a 26-year-old man accused of raping his girlfriend while he was asleep. The incident took place on 2 January 2023, when the couple were lying on a couch watching a film. At some point the man attacked his girlfriend and had sex with her against her will. She screamed, begged him to stop and tried to resist, but he did not react. Afterward he said he had been asleep and remembered nothing.
Cases like this have reached court before. Defendants argue they were asleep and unaware of their actions, and courts have sometimes accepted the argument, allowing the accused to avoid punishment.
One of the first such cases heard in Canada came more than 20 years ago, when a court acquitted a man named Jan Luedecke of raping a woman. The pair had met at a party and fell asleep on the same couch afterward. During the night Luedecke tried to rape the sleeping woman, but said he had no memory of it, only waking after falling to the floor, then going to the bathroom and finding a condom on himself.
Luedecke did not deny the assault took place, but insisted he had been asleep and unable to control himself. To test this, the court brought in a well-known sleep expert, Colin Shapiro, who observed Luedecke's sleep in a laboratory for two nights and concluded he had sexsomnia, a form of sleepwalking in which a person carries out sexual acts while asleep.
Shapiro explained that when Luedecke fell asleep, his brain activity moved directly from deep sleep to a waking state, which could account for how he functioned without waking up. The doctor stressed that this kind of brain activity cannot be faked. He said the key question was that if a person is asleep, they are not legally responsible for their actions.
What Is Sexsomnia and How It Develops
Shapiro did not just help Luedecke avoid conviction, he coined the term sexsomnia and introduced it into medical literature. In his first paper on the subject, he described 11 patients with the disorder who could masturbate, initiate sex with a partner, have intercourse, undress and even talk while still asleep. In the morning, they typically remembered none of it.
Further research followed Shapiro's work. It found sexsomnia to be a very rare disorder, though scientists say some sufferers may not even realize they have it. The condition occurs in men roughly three times more often than in women.
Doctors cannot say why the disorder develops in some people. It is generally thought to be linked to other sleep disorders, particularly sleepwalking and apnea, as well as to sleep deprivation, stress, alcohol and certain medications. Neurologist and sleep specialist Murray Horvath said anything that wakes a person can trigger an episode, including a loud noise, a light switching on or being touched, and that alcohol and drug use can also act as triggers. He noted that during an episode, a person can appear fully aware, with open eyes, speech and complex movements, even though their gaze may be vacant and their behavior strange or aggressive.
How a Rare Diagnosis Became a Defense for Rapists
As recently as 15 to 20 years ago, it was extremely rare for rape suspects to cite sexsomnia. That has changed over the past decade. In the United Kingdom alone, courts have heard more than 50 such cases in the last ten years.
Sleep experts examine suspects' claims, but establishing whether a person really was asleep during a crime is often extremely difficult or simply impossible. Sleep expert Neil Stanley believes some defendants who insist they had sexsomnia are lying. He said some claims of sexsomnia are certainly true, but others are not.
Stanley acknowledged that mistakes happen, and that a person who escapes punishment can go on to reoffend. That is what happened with former British serviceman Joseph Short, who was accused of raping women on several occasions and avoided punishment each time by citing sexsomnia.
He was first detained in 2011, but the case was closed almost immediately after an expert confirmed he could have been asleep at the time of the assault. The same thing happened again in 2014. Two years later, he finally stood trial, accused of two further rapes and one attempted rape. This time his usual defense failed: he was found guilty and sentenced to 11 years in prison.
The women who accused Short were certain he had not been asleep and knew exactly what he was doing. One of them said that after she managed to break free, he chased her on a bicycle, unusual behavior for someone supposedly asleep. Despite this, the doctor who had examined Short maintained that his sleep disorders were genuine, the problem, the doctor said, was that Short had not followed the treatment his doctors recommended.
Stanley said some defendants use sexsomnia as a loophole to escape responsibility, reasoning that the important thing is to create doubt, giving themselves a chance at freedom. He explained that defendants think it is worth the risk, since a judge and jury are unlikely to know what sexsomnia is, and the argument just might work.
Why Memory Fails
There is a far more common and much simpler explanation for gaps in memory: alcohol. People far more often fail to remember their own actions because of drinking. The symptoms can look similar, strange behavior, sometimes aggression, and shame the next morning over actions with no memory attached to them, but the underlying mechanism is fundamentally different.
During a sexsomnia episode, a person is in a state of partial wakefulness, with some parts of the brain active while others remain asleep. During an alcohol blackout, consciousness does not switch off, but alcohol prevents the brain from forming new memories. Psychiatrist Timmen Cermak explained that a person can talk, move, make decisions and interact with others during a blackout, yet remember none of it afterward.
Cermak compared it to photographing with an old camera that has no film loaded: you look for a good angle and press the button, but no picture results. Something similar happens during an alcohol blackout, except a person does not just end up without a photo, they do not even remember pressing the button.
The two explanations become especially hard to separate when both are possible, as in the Canadian case now before the court. The girlfriend says the couple had both been drinking before the attack, but the defense insists alcohol is irrelevant and that sexsomnia was to blame. The court must still reach a final decision, and for now it has adjourned the case for several months.
