The Central Appeals Court in Sweden has overturned the conviction of a man found guilty of sexual assault, finding that the prosecution had failed to prove beyond a reasonable doubt he was awake when he had intercourse with a teenaged girl.
The unnamed man from central Sweden said he was unaware of having sex with the girl until DNA tests proved he was the father of the baby she conceived.
The girl confirmed the man in his 50s was asleep at the time, but said she had allowed the intercourse to take place in the hopes that his wife, who was sleeping next to them, would wake up.
While the man has not been officially diagnosed with ‘sexomnia’, an expert gave evidence that it is highly unusual for someone not to wake up during sex unless they are suffering from the disorder.
What is Sexomnia?
Sexomnia is a sleep condition. It relates to those who are able to engage in sexual behaviour while they are asleep. Being asleep, they have no recollection of the conduct. It is thought to affect about 1% of the population and has been reported mostly in men.
Acts of sexomnia can include fondling, masturbation, oral sex and intercourse, and will usually occur in the first few hours of sleep, during the deep-sleep state. It can be precipitated by stress, alcohol, illicit drugs, sleep deprivation and primary sleep disorders such a sleep apnea, or the presence of a bed partner.
A Swedish District Court rejected the man’s explanation in March, sentencing him to two and a half years in prison. But Judge Svea Hovrätt of the Central Appeals Court overturned the verdict and sentence last week, saying there was a reasonable possibility the man may have been asleep at the time.
The man’s defence lawyer told the Swedish media: “My client is very relieved. From day one, he has professed his innocence and it has been an uphill fight for us.”
“When you’re accused of this type of crime, which is very serious, you almost have to prove your innocence rather than the other way around, which is how it felt in the District Court”.
The man is free after spending four months in prison and said he wants “to move on with his life”.
The prosecutor declined to comment on whether she will appeal the case to the Swedish Supreme Court.
Other Cases of ‘Sexomnia’
This is not the first time defendants have raised the defence of sexomnia.
In 2014, Mikael Halvarsson, was acquitted of all charges after his criminal defence lawyer argued that he suffers from sexomnia. The judge ruled that 26-year-old Halvarsson was “in a state of sleepiness and unconsciousness” at the time of the alleged offence, overturning the defendant’s two-year prison sentence on appeal.
The complainant had alleged that Halvarsson forced her to have sex while they were in the same bed.
The woman called police in the morning to report the alleged sexual assault, and officers arrived to find Halvarsson sleeping under a blanket. He did not seem aware that anything had happened between them.
A doctor specialising in sleep disorders testified that the man might be suffering from sexomnia. This was supported by Halvarsson’s ex-girlfriend who said he had tried to have sex with her while sleeping.
According to her, he seemed confused when she stopped him. Halvarsson’s mother also testified that he had very disturbed sleep pattern.
After Halvarsson was cleared, prosecutor Ginger Johannson put together guidelines for dealing with cases of sexomnia. Her report suggested that courts should focus on whether defendants appeared groggy and dazed, rather than alert and focused, at the time of the incident.
At least two men have been acquitted using a similar defence in Australia, both in the Northern Territory.
Trent John Pobar pleaded not guilty to the sexually assault of his friend’s partner in the town of Katherine. The court heard that Pobar had been drinking at the friend’s house when he went into a bedroom and had sex with the woman.
She awoke and pushed him off, but Pobar said he had no memory of the incident.
His defence team argued that Pobar had a history of parasomnia, which involves abnormal behaviour while sleeping, and that the incident had all the indicators of sexsomnia, a form of parasomnia.
The prosecution argued the incident was a case of amnesia caused by the large amount of alcohol Pobar had consumed. A jury delivered the verdict of not guilty in 2010.
Another man was acquitted in the Northern Territory in 2008 after a similar incident.