Monday, 20 July 2015

Was he really asleep when he raped the woman?

Ryan Hartman and R.C. (the court says only her initials can be published) were at a party at a home in the country outside of Brockville, Ontario. Hartman knew the host and a few of the others present at the party however, he did not know R.C. They had minimal contact during the party. That was probably because R.C. was with her boyfriend.                           

Everyone, including Hartman and R.C., were drinking during the party. He gave somewhat conflicting evidence about his alcohol consumption, but it is fair to say that he had quite a bit to drink over several hours that evening. It was eventually decided that the partygoers should spend the night in the home rather than drive home.

As the party was winding down, Hartman was seated on a chair in the living room watching television. His host gave him a pillow and he fell asleep in front of the television.  R.C. and her boyfriend fell asleep on a double sized air mattress on the kitchen floor at about 2:30 a.m. R.C. was fully clothed, but had removed her shoes. She had her arm around her boyfriend and was facing him while they were sleeping.

Sometime later, R.C. woke up feeling a pain in her anus. Her belt was undone and her pants were pulled down to her upper thigh. R.C. felt a person’s hand on her hip and she pushed the person away with her hand. When R.C. touched him, the person behind her immediately removed his hand and withdrew from her body.                                                                      

R.C. stood up, pulling up her pants as she rose. She went into the bathroom. As R.C. turned the bathroom light on, she saw that the person who was behind her when she awoke had dark hair. Her boyfriend was blonde. R.C. identified Hartman as the person who was lying behind her when she awoke and felt something in her anus.

R.C. realized what had happened to her. She became very upset and started to cry. When her boyfriend asked her what had happened, she yelled “I just woke up with that guy’s dick in my ass”. She repeated the same allegation to their host.

Hartman heard R.C.’s allegation. In the presence of R.C., he said to her boyfriend: “I’m sorry man. I just woke up making out with your girlfriend.”

What he was saying was that whatever he did with the woman while she was asleep, he did it to her while he was also asleep. If he really was asleep while anal raping her, then he was in a state of somnambulism (sleep walking). If he really was in that state while committing that act, then he would have to be found innocent of anal raping the woman.

Hartman was charged with sexual assault (includes any form of rape in Canada) and at his trial, the victim (RC) testified that she told the police that Hartman “was just pretending like he was sleeping” when she awoke. She also told the police that Hartman was also pretending to snore and breathe heavily.  

I am not sure how she could make that assumption since she would be facing away from Hartman while she was being anal raped.

R.C. and her boyfriend left the party and returned to his house. Later that day, she went to the hospital and while she was there, she spoke with the police. Two samples were taken from R.C.’s underwear for DNA testing. One sample revealed DNA belonging to at least three individuals, one of whom was male and could have been her boyfriend, but not that of Hartman. The other sample was so small that the identity of the DNA contributors could not be determined. It could have been Hartman’s DNA or her’s but that is only speculation on my part.

According to Hartman’s testimony, as the party was coming to an end, he found himself in the chair watching television in the basement. He fell asleep only to awake sometime later with a sore neck. He decided to find a place to lie down and sleep. He saw R.C. and her boyfriend on the air mattress in the kitchen. They were both on one side of the double air mattress, so he decided to go into the kitchen and sleep on the other side of the air mattress. He testified that he made his way into the kitchen and fell asleep on the air mattress facing away from R.C. and her boyfriend. He said that he was not touching R.C. when he fell asleep.

He testified that he woke up sometime later to the sounds of a commotion. He was lying on his back, alone on the double mattress. He noticed that his pants were unzipped and he had an erection. After some confusion on his part, he realized that R.C. was accusing him of raping her. He turned to R.C.’s boyfriend and said, “I think I just made out with your girlfriend”. When asked by counsel to explain this statement, he said that it was in response to R.C.’s accusation. He then went on to testify that he had no reason to think that anything untoward had happened. Despite testifying that he had significant gaps in his memory of the relevant events, he was adamant that he did not touch R.C. while she was asleep, did not pull her pants down and did not put his penis anywhere near her body.

That last statement was an interesting one. He previously testified that he had just made out with the victim and now he was saying that he didn’t pull her pants down or put his penis anywhere near the victim’s body. Which of his two statements was the true one?

In closing submissions, the defence counsel (lawyer/attorney) for Hartman argued that R.C. was “dreaming” and that the events she described had not actually occurred. It was the defense’s theory that R.C. awoke from a dream of being anal raped and saw Hartman lying behind her. Thinking the dream was real, she immediately believed that Hartman was the man who had anal raped her.  The defence counsel further argued that from that point forward, R.C. and her friends were convinced that Hartman had sexually assaulted her and they shaped their testimony accordingly. The defence counsel also argued that the DNA results supported Hartman’s claim that he had not assaulted R.C. For that reason alone, the DNA results did not advance the Crown’s case, but it also did not necessarily exculpate Hartman.

He was convicted as charged and subsequently he appealed the conviction to the Ontario Court of Appeal. Hartman’s appeal turned entirely on the admissibility of the evidence proffered by his counsel on appeal, and particularly, the admissibility of Dr. Julian Gojer’s evidence suggesting that Hartman was asleep when he assaulted R.C. On Dr. Gojer’s evidence, that would mean that Hartman’s conduct was involuntary and therefore not culpable. That means that to convict Hartman, the trial judge would have to be convinced that Hartman was wide awake when he anal raped the victim and if that was so, then he would have had the criminal intent to commit that crime when he was doing it. If on the other hand, he was asleep during the commission of the crime, then he did not form the criminal intent to commit the crime and as such, would have had to be declared not guilty.

He might even suffer from ‘sexsomania’. That is an event in our lives in which we can become sexually aroused while being asleep. That is normal providing that the person isn’t doing a sexual act against another person who is also asleep. There is also a disorder called ‘somnophilia’. As an example, consider the case of the famous television star, Bill Crosby who has been accused of giving a drug to 25 women to put them asleep before he allegedly raped them. However, Crosby wasn’t asleep when he allegedly drugged and raped the women. Anyone who rapes a person while suffering from osmophilia cannot use that disorder as a valid defence since anyone with that disorder has a legal obligation to seek treatment for that disorder.

It will never be in the “interests of justice” to admit evidence on appeal that is not legally admissible under the normal rules of evidence. Nor will the “interests of justice” ever be served by admitting evidence that lacks sufficient cogency to be truly convincing. An appeal court also has to consider the explanation for the failure to lead the evidence at trial and whether any explanation that compels the exclusion of the evidence even though it would otherwise be admissible on appeal. It is often referred to as the “due diligence” inquiry There are two kinds of evidence that wasn’t raised at the trial that can be raised at a new trial. The first is any new evidence that has been discovered after the trial and the other is any new recognition of disorders that has been discovered.

It may not always be in the “interests of justice” to receive evidence on appeal, even though it is legally admissible and could reasonably be expected to have affected the result in the trial if that evidence was available at trial and a tactical decision by the defence was made to not submit that evidence during the trial.

I cannot fathom why admissible evidence being submitted on appeal that should have been submitted at trial can’t be used at a new trial. Suppose for example that DNA evidence that could have exonerated the defendant at trial and wasn’t used at the trial; can’t be used at a second trial.  It could mean that an innocent man would be going to prison, perhaps for life.

The cogency inquiry addresses three features of the evidence tendered on appeal. The proffered evidence must be relevant, in that it bears upon a potentially decisive issue at trial. The evidence must also be credible, in that it is reasonably capable of belief. Finally, the evidence must be sufficiently probative, in that it could reasonably be expected to have affected the result when taken with the other evidence adduced at trial and on appeal. On Hartman’s appeal, the Crown and Hartman’s disagreement concentrated on the probative value of Dr. Gojer’s opinion. They otherwise agreed that his evidence is legally admissible, relevant and reasonably capable of belief.

Hartman’s new lawyer, in an effort to explain the failure to lead the evidence at trial, contended that his trial lawyer provided ineffective legal assistance to Hartman. He argued that because of that incompetent representation, a “sexsomnia” defence was not investigated and advanced as it should have been. The new lawyer submitted that because the failure to lead the evidence at trial was attributable to the trial counsel’s ineffective representation, that failure cannot adversely affect the admissibility of the evidence on appeal. If an appeal court is satisfied that the defence lawyer should have submitted the defence of sexsomnia during Hartman’s trial and the court of appeal feels that such a defence might have changed the outcome of the verdict, then the appeal court can order a new trial.

There was no credible and admissible evidence establishing that Hartman or any member of his family spoke with trial counsel about the Hartman’s alleged history of parasomnia before the trial, or suggested to trial counsel that Hartman may have really been asleep when the incident occurred. Hartman’s sister, who apparently raised and spearheaded the advancement of the sexsomnia defence on appeal, didn’t inform the defence lawyer of her concern about Hartman suffering from parasomnia. That disorder includes persons who will engage in sexual acts while they are still asleep.

The appeal court did not accept Hartman’s assertions in his statement to counsel that he had “no memory of how this had happened” and that everything was a bit of a blur” were sufficient to necessarily cause a reasonable counsel to investigate the defence of sexsomnia. In the same statement, Hartman described himself at various points in the evening as having been “pretty drunk”, “blacked out” and “really drunk”. Hartman’s admitted excessive alcohol consumption provided a more obvious explanation for his memory lapses and confusion at the time of the incident than parasomnia. Trial lawyers, like medical clinicians, are trained to look for horses, not zebras. While some lawyers may have twigged to the possibility of a parasomnia defence, in the circumstances, the appeal court could not conclude that it was incompetent for counsel to fail to recognize sexsomnia as a potential defence.

The appeal court said in part; “We reject the appellant’s contention that he was the victim of ineffective assistance of counsel at trial, I do not think that the failure to lead the sexsomnia defence at trial should preclude the admissibility of the evidence on appeal. There is no suggestion that the failure to lead the sexsomnia defence was the result of a tactical decision made by trial counsel. Nor is there any suggestion that the appellant deliberately withheld the relevant information from trial counsel for some ulterior reason.” unquote

Dr. Gojer said in his testimony; “It’s not just what the client tells you which would be a fatal error in a clinical setting or in a forensic setting. You want to look at what the bystanders have seen, what the victim reports and what family members report, so you have information intersecting from different areas merely to confirm the diagnosis of a parasomnia. So there is really no doubt in my mind that this individual had parasomnia. And given that we weren’t there on the day in question, the question is, “Would he have had a parasomnia on the day in question?” The answer is highly likely that he would have. And a parasomnia, in my opinion, would equate to a person not being in a state where he would be in control of his physical activities, which would also be labelled as an automatism for a legal purpose.” unquote

A defence of automatism if believed would result in an acquittal.

The appeal court said in part; “Taken at face value, Dr. Gojer’s opinion that the appellant was asleep would clear the probative value component of the cogency inquiry. However, Ms. Bartlett-Hughes, Crown counsel, has marshalled a detailed and powerful attack on the probative value of that evidence. She points to weaknesses and failings in Dr. Gojer’s opinion which she contends undermine many of the nine factors he relied on. Crown counsel also relies on the evidence of Dr. Pressman. She accepts that both Dr. Gojer and Dr. Pressman are qualified experts, but submits that, on a fair reading, Dr. Pressman clearly knows a lot more about sleep disorders and the interpretation of sleep studies. She submits that Dr. Pressman’s opinion is entitled to much more weight than Dr. Gojer’s.”

To succeed on the appeal, the appellant does not have to convince the court that Dr. Gojer’s opinion should be accepted and preferred over Dr. Pressman’s. If the appellant could satisfy the court of appeal that a reasonable trier of fact could, in the context of the entirety of the record, including Dr. Pressman’s opinion, accept Dr. Gojer’s opinion that the appellant was asleep on a balance of probabilities, the appeal must be allowed and the matter returned to the trial court. It would be for the trial court to decide whether Dr. Gojer’s evidence should ultimately be accepted.

The court of appeal ordered a new trial for Hartman. The question remains whether the new trial can and should be limited to a determination of whether the appellant is guilty as charged or not criminal responsible for what he did to the victim. The appeal counsel for Hartman had taken the position that if the court has jurisdiction to make that order, then his client does not oppose that order. Crown counsel further took the position that if the court was ordering a new trial, it should be limited to a determination of whether the appellant is guilty or not criminally responsible for sexually attacking the victim while she was asleep.

If he is found to be not criminally responsible for what he did to the victim when she was asleep, he will be sent to a hospital for the criminally insane. He could be there for years before he is finally released back into society.  Then again, he could be released much sooner if he suddenly become cured of his sexual disorder. 

When I learn what the verdict is in the new trial, I will update this article. 

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