“Sexsomnia” or “Sleep Sex” May Be a Defense to Sex Crime Allegations

By November 17, 2016Sex Crimes

Is Sleep Sex a Real Thing and How Can it Apply to Sexual Allegations?

Sexsomnia Sleep SexYou may have heard of sleepwalking, or sleeptalking, but what about sleep sex? The idea of sleep sex or “sexsomnia” is typically worth a few laughs when you first hear about it, but it is a very real disorder within the parasomnia umbrella of disorders (classified by the DSM-V).  Google it (with caution, of course).  You’ll find many articles discussing real people that suffer from sexsomnia.

What is “Sexsomnia?”

Also called “sleep sex,” sexsomnia is a type of parasomnia, where the brain is caught in transition between sleeping and waking states. As with other parasomnias — including sleepwalking, sleep talking, and, sleep driving — someone who is sleep sexing can seem fully awake and aware, even as he or she is masturbating, or fondling, initiating intercourse with, or even sexually assaulting a bed partner. But he or she truly is asleep.

See Web MD.  There have been several sleep studies and scholarly articles on sleep sex as experts learn more about sexsomnia.

How Does Sleep Sex Apply to a Sex Crime Allegation?

As you can imagine, some criminal defense attorneys have used sexsomnia as a defense to sexual assault allegations. Prosecutors are even being trained on how to overcome the sleep sex defense. But sexsomnia does not apply to every case. The factual allegations often do not support sexsomnia as a viable defense to sexual crimes cases.  But sometimes they do.  An article published in the Journal of Clinical Sleep Medicine in 2014 explored 9 criminal cases in which sexsomnia was used as a defense to sexual allegations.  The jury found the defendant not guilty in 7 of the 9 cases.

To establish a viable sexsomnia defense, the defense should be prepared to present witnesses that can establish a pattern of unusual sleep behaviors for the accused.  Further, the defense should look for other things that are known “triggers” for sleep sex, like alcohol use, sleep deprivation, emotional stress, and certain medications. This is a starting point to consider pursuing such a defense and should be coupled with all other typical defense investigatory avenues.

While a sexsomnia defense may cause the jury to chuckle as they think about a person having sex while the person is asleep, it can carry the day if the facts support the defense.  It should not be used as a gimmick.  With the right experts and the right witnesses, a sleep sex defense might just be the truth that sets a person free.

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