In 2017, Jade McCrossen-Nethercott’s rape case was dropped because it was alleged that she had suffered from an episode of “sexsomnia” at the time, which was sufficient to acquit her attacker.[1]
Sexsomnia is a recognised sleep disorder known as parasomnia. With sexsomnia, “people engage in sexual behaviours such as masturbation, sexual movements, sexual aggression, or initiating sex with another person”[2], whilst sleeping so the person suffering from sexsomnia is not usually aware of the episode whilst it is happening.
The day after Jade’s attack, she woke up on a sofa in London, half-naked, feeling as if she had been penetrated so she assumed that she had been raped whilst asleep.[3] The CPS lawyer invoked sexsomnia as a possible justification for the act and alleged that Jade may have suffered from an episode of sexsomnia in which she would have consented to sex.
As a result of sexsomnia in Jade’s case, the CPS dropped the case the day before the trial, thus acquitting the defendant and leaving Jade without justice. Notably, Jade had never heard of sexsomnia previously and had only been asked about her sleep and sleepwalking at the police station, following the alleged rape. The CPS have since apologised and admitted that they should have brought this case to trial. Jade is now suing the CPS for damages whilst the CPS has 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”.[4]
In England and Wales, a person is not considered to have consented to sex if they were asleep and an alleged perpetrator will not be guilty if they had “reasonable belief” that the other party consented to the sexual act.[5]
The interesting and unusual part about Jade’s case is that sexsomnia tends to be invoked by the defendant in order to be acquitted rather than about the claimant, so that their case is dropped; indeed, it is usually “diagnosed in individuals accused of sex crimes”[6].
The state of the law
According to the Sexual Offences Act 2003, rape occurs whereby the defendant penetrates the victim’s vagina, anus or mouth with his penis, the victim does not consent and the defendant does not reasonably believe that the victim consented.[7]
According to the CPS itself, “a person consents to sexual activity only if they agree by choice, and they have the freedom and the capacity to make that choice”.[8] This statement therefore implies a clear consent from both parties before taking part in a sexual act, as long as they are capacitous. Capacity is made out when one can understand information and weigh it in the balance before making a decision.[9] In examining rape cases, “whether the suspect’s belief was reasonable is determined in regard to all the circumstances, including any steps the suspect took to ascertain whether the complainant consented”.[10] As such, the suspect needs to believe that the other party gave clear consent to a specific sexual act, before the act took place.
The law in England and Wales emphasises on the fact that consent must be clear and given by both parties to avoid any such ambiguity and to safeguard both parties. Indeed, submitting to sex is not the same as consenting.[11]
Interestingly, in England in 2020, Darrell Swanson was convicted of three counts of historic rape but was acquitted of all charges after he claimed that he had suffered from sexsomnia.[12] It would appear that the law in England and Wales accepts sexsomnia as a defence for the offender or a gateway to convict when the victim is alleged to suffer from it, such as with the case of Jade McCrossen-Nethercott. Although there is very little case law on the matter so far, the trend is consistent in that direction.
It is interesting to compare the law in England and Wales with that of other jurisdictions such as that of New Zealand. Indeed, a man in New Zealand was recently sentenced in the Christchurch District Court to eight years in prison for sexual violation by unlawful connection and sexual violation by rape despite an attempt to rely on sexsomnia as a defence or mitigating factor.[13] Contrastingly to England and Wales, New Zealand seems to have tougher laws in place for rape and sexual violation claims; invoking sexsomnia will not acquit the defendant, in the same way that this takes place in England and Wales.
Given the controversy of the acquittals in sexsomnia cases in recent years, “the law must decide whether someone has criminal intent or is acting as an automaton, without conscious awareness”.[14] However, due to the fact that defendants’ brain waves are not measured when they carry out an attack, it is near-impossible to determine whether they were conscious or not, at the time of committing said attack. According to Mike Kopelman, professor of neuropsychiatry at King’s College London, “if you find evidence of conscious deliberation, motivation or of recall, that rules out if having been an automatism”.[15]
Mens Rea and Sleep Disorders
In the last few years, there have been several court cases involving sleep disorders, including sexsomnia, which have resulted in acquittals. The law must decide whether someone has criminal intent or is acting as an automaton, without conscious awareness in such cases.
Because defendants are never having their brain waves measured when they carry out the attack it can be hard to know for sure whether they were conscious or not, says Mike Kopelman, emeritus professor of neuropsychiatry at King's College London.
"If you find evidence of conscious deliberation, motivation or of recall, that rules out it having been an automatism," he says.
Against Sexsomnia as a Defense
Moreover, according to Leon McRae, sexsomnia is the manifestation of “repressed sadistic behaviours”. Therefore, if a defendant is permitted to walk free from a rape allegation because they have invoked sexsomnia, this could suggest that the defendant is likely to want to attempt sex again in the future, whether that is consensual or not, in a state of alleged sexsomnia or not. According to McRae, therefore, if an offender pleads sexsomnia as a defence, they should be held to be guilty, in order to prevent the risk of future offences.[16]
Seemingly, despite the few cases available on sexsomnia and rape claims, Jade McCrossen-Nethercott seems to be one of the very few, if not the only, case in which the victim is suspected to have suffered from sexsomnia rather than the offender. The law in this area is still new, although, with a growing case law, it should aim to be clearer and fairer to the victim.
[1] BBC News, ‘Claims I had sexsomnia destroyed my rape case’ <https://www.bbc.com/news/uk-63116989> Accessed on 25th October 2022. [2] Sexsomnia: What to Know About Sleep Sex, <https://www.sleepfoundation.org/parasomnias/sexsomnia#:~:text=Sexsomnia%2C%20also%20known%20as%20sleep,falling%20asleep%2C%20or%20waking%20up.> Accessed on 25th October 2022. [3] BBC iPlayer, Sexsomina: Case Closed?, <https://www.bbc.co.uk/programmes/p0cyrmzv> Accessed on 25th October 2022. [4] The Guardian, Woman to sue CPS after rape case dropped over sexsomnia claims, <https://www.theguardian.com/society/2022/oct/05/jade-mccrossen-nethercott-sue-cps-rape-case-dropped-sexsomnia> Accessed on 25th October 2022. [5] REF [6] Mohebbi A, Holoyda B J, Newman W J, Sexsomnia as a Defense in Repeated Sex Crimes, Journal of the American Academy of Psychiatry and the Law ONline March 2018, 46(1) 78-85. [7] Sexual Offences Act 2003, s.1. [8] Crown Prosecution Service, Key facts about how the CPS prosecutes allegations of rape, <https://www.cps.gov.uk/publication/key-facts-about-how-CPS-prosecutes-allegations-rape> Accessed on 28th October 2022; Sexual Offences Act 2003, s.74. [9] R (Cooper) v Parole Board [2007] EWHC 1292 (Admin). [10] Ibid. [11] R v Olugboja [1982] QB 320. [12] The Sctosman, Rape accused who claimed ‘sexsomnia’ walks free from court, <https://www.scotsman.com/news/crime/rape-accused-who-claimed-sexsomnia-walks-free-court-3044905> Accessed on 2nd November 2022. [13] Kristie Boland, Eight years’ jail for man who claimed ‘sexsomnia’ made him rape sleeping woman, <https://www.stuff.co.nz/national/crime/129821058/eight-years-jail-for-man-who-claimed-sexsomnia-made-him-rape-sleeping-woman> Accessed on 2nd November 2022. [14] BBC News, Sexsomnia: My boyfriend raped his ex ‘in his sleep’, <https://www.bbc.com/news/stories-42226868> Accessed on 2nd November 2022. [15] Ibid. [16] Leon McRae, Blaming rape on sleep: A psychoanalytic intervention, January 2019, International Journal of Law and Psychiatry 62:135-147.