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Louise Thomas
Editor
A 24-year-old woman goes out with friends. When she wakes up the next morning, she realises that she has been raped. She reports what has happened to the police and waits more than three years for it to come to court, only for her case to be suddenly dropped by the Crown Prosecution Service (CPS) two weeks before trial. Why? Because her rapist’s lawyers have claimed she suffers from a rare condition called “sexsomnia”, and may have given the impression that she was consenting in her sleep. That woman was Jade McCrossen-Nethercott – and she hadn’t even so much as heard of sexsomnia, let alone been diagnosed with it.
“The sleep specialist appointed by the defence never spoke to me,” she tells me. “I was sent a 15-question questionnaire only, and that was supposedly enough for a professional to conclude that I suffered from sexsomnia.”
Known sometimes as “sleep sex”, sexsomnia is classified as a type of parasomnia, an umbrella term for sleep disorders in which people experience or exhibit unusual behaviours during sleep. “This includes sleepwalking,” says Marie Morice, clinical sexologist and founder of Lilith Your Life. “And in the case of sexsomnia, people engage in sexual behaviours such as masturbation, sexual movements, or initiating sex with another person.” Crucially, these experiences are typically forgotten about by the morning.
But while it’s difficult to research – unless someone wakes up with an injury or is told about their behaviour by a partner, there’s often no way of knowing you suffer from it – and others dispute how common it even is, it’s lately become a worrying legal tool in many modern sexual assault cases.
According to Dr Neil Stanley, an independent sleep expert, sexsomnia was first recognised as a clinical condition in 2003. “Occurring during non-REM sleep, it is not related to dreaming,” he clarifies, referencing the deeper form of sleep that occurs when your heart rate and body temperature decrease. “It is an extreme variation of sleepwalking; the conscious brain is asleep while the part(s) of the brain that can control sexual behaviour are awake.”
There are very few known instances of sexsomnia, with only a few hundred cases documented worldwide. “Sexsomnia is relatively rare,” explains clinical trauma psychologist Carla Shohet, “with prevalence rates estimated at between 1 and 8 per cent in the general population, making it less well known compared to sleepwalking or night terrors. However, its true prevalence is uncertain due to underreporting and misdiagnosis.”
While I believe sexsomnia to be a legitimate medical condition, its use as a defence in rape cases requires careful, rigorous scrutiny to ensure it is not exploited to evade justice— Jade McCrossen-Nethercott
It can manifest in a wide range of ways, with some clinically documented cases including a married woman who repeatedly masturbated next to her partner in the middle of the night but couldn’t remember anything about it once her partner woke her up. Another involved a man who repeatedly attempted to have sex with his wife while she was fast asleep, and another man who masturbated so aggressively in his sleep that he injured himself.
According to a study published in the Sleep Medicine journal, one 33-year-old man would disturb his partner’s sleep with regular instances of masturbation, attempted intercourse and sexual vocalisations. “His current girlfriend particularly complained of incitement to sexual intercourse, and her sleep was also disturbed by the patient’s sexual talking and groping,” the study states. “She did not describe his behaviour as being aggressive, but rather as harassing. The patient was completely unaware of it.”
The causes of sexsomnia are not yet fully understood due to the paucity of research. “But it is believed to be often triggered by factors that disturb sleep, such as stress, sleep deprivation, alcohol or substance use, and certain medications,” says Shohet. “Underlying sleep disorders like sleep apnoea and insomnia can also play a role.” In the 33-year-old man’s case, it was thought to derive from his childhood history of sleepwalking and his irregular sleep schedule, which varied between five and eight hours a night due to his job. After careful observation, the study’s authors identified that a series of sleep-related head jerks triggered the man’s sexsomnia, though it’s not known what exactly caused these movements to spark his sexual behaviour.
Legally, this is all incredibly complex. If someone sleeping next to a sexsomniac wakes up to their partner trying to have sex with them, it could be classified as rape. “Beyond the immediate psychological trauma associated with sexsomnia episodes, living with sexsomnia profoundly impacts mental health, disrupts sleep and creates issues of trust, intimacy, and consent in relationships, potentially leading to serious legal implications,” says Shohet.
This is partly because it’s not always possible to identify when someone is having a sexsomniac episode. “Recognising an episode is difficult for a few reasons, firstly because the person affected often seems awake rather than asleep,” explains Shohet. “Signs including unusual sounds and gestures during sleep aren’t always clear, and sleep behaviours can be similar in various other sleep-related conditions.”
When it comes to how sexsomnia can be used in a legal context, many are concerned. “If someone genuinely has sexsomnia, it’s worrying that they could be accused of assault when they were unaware of their behaviour,” says Cate Campbell, British Association for Counselling and Psychotherapy accredited sex, relationship, and trauma therapist. “It’s also very concerning that people may pretend to be affected by sexsomnia when they are, in fact, just using it as an excuse to assault another person.”
It’s a prevalent issue, too, as highlighted by a recent Observer investigation that uncovered a rise in the use of sexsomnia in defence cases for sexual assault trials. The publication identified 80 cases in the last three decades where defendants of rape, sexual assault or child sexual abuse claimed they had been sleepwalking or experiencing a sexsomniac episode, with at least 51 of these in the past decade. Perhaps most alarmingly, in roughly 60 per cent of cases where sexsomnia was claimed by the defence, a not-guilty verdict was reached.
I have seen defence solicitor websites almost glorifying and advertising the sexsomnia defence— Jade McCrossen-Nethercott
“The key issue in English legal cases appears to be whether or not the sexsomniac episode is genuine,” says Dr Stanley, who has given expert evidence in trials where sexsomnia has been cited by the defence team. “It is difficult to prove the existence of a sexsomniac by studying people in the laboratory, so the patients’ history is a key importance in determining the possibility of it being a factor. This means that it is relatively easy to claim the sexsomnia defence falsely.”
There have been several occasions where people have been jailed when it is clear the sexsomnia defence had no basis. In 2013, actor Simon Morris was sentenced to eight years in prison for raping a 15-year-old girl after the judge said Morris had told “an endless number of glib lies” about suffering from sexsomnia. “In another case, also in 2013, businessman Gary Forbes pleaded sexsomnia when he was charged with raping a woman while on bail for an almost identical attack,” adds Dr Stanley. “He later dropped the defence and pleaded guilty.”
In McCrossen-Nethercott’s case, the sexsomnia claim was made by her alleged rapist’s legal team with almost no evidence. The CPS has since admitted it was wrong not to take her case to trial and have apologised unreservedly to her.
“While I believe sexsomnia to be a legitimate medical condition, its use as a defence in rape cases requires careful, rigorous scrutiny to ensure it is not exploited to evade justice,” McCrossen-Nethercott tells me. “I have seen defence solicitor websites almost glorifying and advertising the sexsomnia defence, which is very concerning as it trivialises the serious nature of sexual assault and potentially encourages its exploitation in court.”
It’s an incredibly depressing case, one that speaks to far wider problems within the criminal justice system’s approach to sexual assault. We already know how few rape reports result in a charge, and how difficult it is to successfully convict a sexual predator. With loopholes like this on the rise, the fight for justice for survivors like McCrossen-Nethercott is likely to only get more arduous. Evidently, more needs to be done. Not just at a legislative level, though, but at a social and cultural one, too.
“Both the justice system and sleep experts need to collaborate on establishing robust guidelines for sexsomnia, understanding its legal implications, and implementing measures for accurate diagnosis and effective management of this complex condition,” says McCrossen-Nethercott. “We can’t allow it to be exploited as a literal ‘get out of jail free’ card.”
