Sexsomnia: overcoming the sleep disorder defense.

• Author: Badawy, Rami S.

CAN A SLEEPING DEFENDANT involuntarily sexually assault a child? Many defendants are now claiming involuntary sexual assaults on children and adults, alike. In Canada, a 33-year-old man was acquitted of sexually assaulting a woman he had met earlier in the evening, despite a full confession to law enforcement. (1) In New Jersey, a 41-year-old man was acquitted of attempted aggravated sexual assault and sexual assault despite testimony from the seven-year-old victim that she awoke to the defendant on top of her with his penis pressed against her vagina and the defendant's admission that he woke up naked next to the victim. The girl's mother, the defendant's girlfriend, also testified that shortly after the incident she witnessed the defendant naked and covered in baby oil. (2) Finally, in a trial convened at Randolph Air Force Base in Texas, the defendant admitted to rubbing his fingers on his 12-year-old daughter's vagina but claimed the act was involuntary. (3)

In all three cases, the defendants sought to avoid criminal responsibility for their conduct even though overwhelming evidence existed that each committed the crimes charged against them. All defendants argued that they were not criminally liable for their actions because they were unconscious during the incidents; thus, they did not possess the culpable mental state required to convict. In short, the defendants claimed that they were not guilty because they suffered from a sleep disorder: sexsomnia.

In child abuse cases involving sexual assault, prosecutors and investigators increasingly face this relatively new defense. Judges are allowing defense medical experts to testify that defendants were asleep at the time they sexually assaulted or attempted to sexually assault children. Sexsomnia is typically offered in child sexual abuse cases involving: (1) prompt disclosure by the victim of the abuse or attempted abuse; (2) little question as to the identity of the perpetrator and/or that the act occurred; and (3) a claim by the defendant that he or she has little or no memory of the incident.

Prosecutors and investigators must understand and distinguish legitimate sleep disorders from intentional sexual abuse. This article will provide a brief and general overview of what is currently known and accepted about sleep disorders and then examine more controversial claims of sleep violence. Finally, this article will discuss strategies for dealing with the sexsomnia defense.

WHAT IS PARASOMNIA?

There are four stages of sleep, collectively known as slow wave sleep ("SWS"). (4) From stage one to stage four, the brain's electrical activity slows along with the body's breathing and heart rate. (5) Muscle tone also decreases. (6) Rapid eye movement ("REM") or dreaming sleep occurs after two hours of slow-wave sleep. (7) While brain activity and heart and breathing rates increase during REM sleep, muscle tone remains absent. (8) The presence of muscle tone in slow-wave sleep allows the sleeper to move while REM sleep is marked by no muscle tone making anything but small movements, impossible. (9)

Throughout the duration of sleep, the body alternates between slow-wave and REM sleep. Following the initial REM period, which only lasts approximately 15 minutes, the sleeper returns to slow-wave sleep for as long as four hours. (10) The sleeper then rotates between REM and SWS every hour and a half for the remainder of the night until the sleeper eventually awakens from REM sleep. (11)

Many people have trouble sleeping and may suffer from a parasomnia. Parasomnias are disorders involving abnormal behavioral and physiological events occurring in association with sleep, specific sleep stages, or sleepwake transitions. (12) These disorders are classified as either arousal disorders, sleep wake transitions disorders, or parasomnias associated with REM sleep. (13) Parasomnias include nightmare disorder, sleep terror disorder, and sleepwalking disorder. (14) Parasomnias in adults are commonly triggered by stress, sleep deprivation, and consumption of alcohol and/or drugs. (15)

Nightmare disorder is the repeated occurrence of frightening dreams that cause an individual to awaken from sleep. (16) Nightmares occur during REM sleep and are more likely to occur during the second half of the night when REM sleep becomes longer. (17) Although the actual prevalence of nightmare disorder is unknown, as many as 50 percent of children ages three to five years suffer from sleep disrupting nightmares. (18)

Sleep terror disorder involves repeated incidents of sudden awakening from sleep with a scream or other vocal indicator of distress. (19) Typically, individuals experiencing a sleep terror will sit up in bed with a frightened expression on their faces. They will usually exhibit symptoms of anxiety including increased heart rate, heavy breathing, sweating, and increased muscle tone. (20) A sleep terror episode can last as long as 10 minutes. (21) Sleep terrors occur during stage four of short-wave sleep, within two hours of going to bed. (22) Sleep terror disorder begins in childhood and resolves as children reach adulthood. (23) Sleep terror disorder occurs in one to six percent of children and in less than one percent of adults. (24)

Sleepwalking disorder is characterized by episodes of motor behavior initiated during sleep which includes an individual rising and walking about. (25) Individuals experiencing an incident of sleepwalking exhibit a lack of alertness and are unresponsive to outside communication. (26) Following an episode of sleepwalking, individuals will have little or no memory of the event. After being awoken, the individuals may be confused or disoriented before becoming fully aware of their surroundings and exhibiting appropriate behavior. (27)

Sleepwalking is also known as sleep transition disorder because it occurs when the brain is shifting from slow-wave sleep to REM sleep. (28) Accordingly, most incidents occur one to two hours after the onset of sleep. (29) Sleepwalking begins during childhood, between ages four and eight with episodes peaking at age 12. (30) Sleepwalking rarely manifests for the first time during...