A woman is suing the Crown Prosecution Service after it admitted her rape case should not have been dropped because of claims she had an episode of a rare sleep condition called sexsomnia.
Jade McCrossen-Nethercott spent months investigating the condition and challenged the decision, forcing the CPS to apologise and admit it was wrong not to take her case to trial.
The 30-year-old, who has waived her right to anonymity, told the BBC she had woken in the early hours of Sunday morning in 2017 when she was 24 to find she was half-naked, with the feeling she had been raped while she slept.
Three years later – and days before the man charged with raping her was due to stand trial – lawyers from the CPS said her case was being dropped because two sleep experts said it was possible McCrossen-Nethercott had had an episode of sexsomnia and could have appeared to have been awake and consenting. The case was closed and the defendant acquitted.
Sexsomnia is a medically recognised sleep disorder in which people with the condition can perform sexual acts in their sleep. According to the law in England and Wales, a person cannot consent to sex if they are asleep, but a person is also not guilty of rape if they had “reasonable belief” in consent.
In the BBC’s Sexsomnia: Case Closed?, McCrossen-Nethercott said she had woken up at 5am half-naked and accused the man she was with of raping her.
“I confronted him saying, ‘What’s happened? What have you done?’ And he said something a bit odd I guess, but he did say ‘I thought you were awake’. And he just bolted out basically, and left the door open,” she told the BBC. She called a friend in distress, and police arrived and took her for forensic tests. Vaginal swabs detected semen which would later be matched to the man.
The suspect offered no comment when initially questioned by police. When McCrossen-Nethercott made her statement, she was asked about her sleeping and said she had always been a deep sleeper and had sleepwalked a couple of times as a teenager.
When her case was dropped, McCrossen-Nethercott requested all the evidence and was shocked by the weight given to the evidence from sleep experts who had never met her. Additional experts said it could not be ruled out, but other legal experts said they had only heard of sexsomnia being used as a defence by those accused of rape.
“I don’t see how this can be one isolated incident [of sexsomnia], that just so happens to be the time that somebody I would never have consented to have sex with had sex with me,” said McCrossen-Nethercott.
She submitted a victim’s right to review to the CPS and a chief crown prosecutor, independent of the CPS department which made the original decision to close the case, reviewed the evidence. He concluded the case should have gone to trial, and that the sleep experts’ opinions and the defendant’s account should have been challenged in court.
He wrote: “I cannot begin to imagine what you have been through and how you feel. I noted during my review the devastating effect of this case on you. I apologise unreservedly for this on behalf of the Crown Prosecution Service although I appreciate that is likely to be of little consolation to you.”
McCrossen-Nethercott said she hoped that talking about her case would prevent others from going through the same experience. She is now suing the CPS for damages.
The CPS said it was “committed to improving every aspect of how life-changing crimes like rape are dealt with and are working closely with the police to transform how they are handled.”
