‘Sexsomnia’ defence quashes rape conviction

Man sitting on the bed with disappointed woman. Stock photo by Getty Images

An Ontario man escaped conviction with the improbably defence that yes, he did rape someone, but he was asleep when he did it.

Ryan Hartman was convicted of sexual assault in May 2012. He’d been at a house party and went to sleep on an air mattress next to a woman known in court documents as “R.C.” Some time later, she woke up and found her pants pulled down and Hartman having sex with her.

At his trial, Hartman admitted to committing sexual assault, and was sentenced to 14 months in jail and a three-year conditional sentence.

Last February, however, he launched an improbable appeal employing a bizarre alibi. He still admitted to the assault, but said he was asleep when it happened.

Hartman blamed the assault on his “sexsomnia” — a mental disorder where a person engages in sexual activity while still asleep.

It’s a type of parasomnia, a sleep disorder that can involve strange actions, behaviours and perceptions during different stages of sleep. Parasomnias range from the mild — teeth-grinding, restless legs syndrome, or confusion — to the strange and scary, such as sleep-eating, night terrors and yes, sexsomnia.

See also: Is sleepwalking a legitimate criminal defence?

Hartman’s not the first to claim “sexsomnia” as a legal defence. It’s come up surprisingly often in recent cases, but courts are understandably very sceptical.

After all, how do you prove that you were asleep?

In Hartman’s case, the judge accepted a forensic psychiatrist’s report that analyzed Hartman and the assault. Among those considerations: 

  • Hartman’s sleepwalking as a child;
  • his other sleep disorders, such as sleep paralysis and nightmares;
  • his girlfriend’s testimony of prior sleep sex;
  • the lack of prior sex-assault allegations;
  • the sheer brazenness of the assault, suggesting it wasn’t intentional.

Other factors influencing parasomnia include: stress; alcoholism; drug use; and sleep-deprivation.

Those played a role in another Ontario sexsomnia case from 2003. Jan Luedecke had even put on a condom before assaulting a sleeping woman. However, she testified that Leudecke was clearly confused in the moment. He’d been drinking, taking drugs and was suffering from stress and lack of sleep.

A court acquitted him because, even though he’d clearly engaged in non-consensual sex, he couldn’t form the criminal intent. The Court of Appeal overturned that ruling in 2008, saying he was actually “not criminally responsible” due to a mental disorder or NCR-MD, in court parlance.

In 2013, a Winnipeg man was acquitted on the same grounds after his wife went to police to complain about years of forced sex.

Another Ontario man was acquitted on a sexsomnia defence just last February.

Hartman isn’t necessarily off the hook though. Similar to Leudecke’s case, he’ll face a new trial to determine a more appropriate ruling considering the sexsomnia defence: either guilty or NCR-MD.

If a court rules he’s not criminally responsible, the case heads to a review board, which can order a person committed to hospital, grant a conditional release or an absolute discharge, depending on whether he’s judged to pose a threat to the community.

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