Should a man be convicted of a crime if he was asleep at the time?

Jan Luedecke, a Canadian, was acquitted of sexual assault because he pleaded the defence of sexomnia. Luedecke apparently was half asleep when he found himself on top of a women at a house party. Although the victim has appealed the ruling, a three judge panel of the Ontario Court of Appeal upheld the verdict.

At his trial, he claimed he was half asleep when he forced himself on a woman he didn't know. The two had fallen asleep on the same sofa after a party. They both had been drinking previously. When she awoke, Luedecke, 33, was having sex with her. She pushed him away and he said he awoke only when he hit the floor. He later claimed that he had no memory of actually having sex with the woman. In fact, he didn't realize the assault had occurred until he went to use the washroom and found he was still wearing a condom.

In court, Dr. Colin Shapiro testified that Luedecke suffers from "parasomnia" --- a condition in which people do strange things in their sleep. One of its symptoms is engaging in sleep sex. Doctors say fatigue, stress, drugs and alcohol may trigger a parasomnia episode, and most people do not recall their behavior once they wake up.
Shapiro said he tested Luedecke himself and that his brain displayed symptoms of parasomnia. He said, "If you accept that people can do odd things in their sleep … then there are certain actions that happen automatically in a sleep sequence. The key issue here is that if the person is asleep, then they are not legally responsible."

Disorder or not, some women's groups are furious. Chris Leonard of Toronto Rape Crisis Center said, "This person had non-consensual sex with her, and whether it's a disorder or not there has to be some level of accountability.”

Despite that kind of objection, according to the University of Toronto Center for Sleep Studies, 2.5 percent of adults suffer from parasomnia. Experts say the number of those who engage in sleep sex is unknown and probably under-reported.

Recently, there have been several prominent cases involving sleep in the United States. In 2002, a Massachusetts jury cleared a 19-year-old man of assaulting a woman in a college dormitory. He had a history of sleepwalking, but was acquitted because none of the women could identify him.

Also in Massachusetts, a 34-year-old man pleaded guilty to fondling 11- and 13-year-old girls. But he claimed he suffered from sexsomnia and wasn't responsible for his behavior. The girls' mother said she believed his sexsomnia defense.

Eight years ago, an Arizona man, Scott Falater, claimed he was asleep when he drowned his wife and then stabbed her 44 times. Despite his defence, he was found guilty.

As for Luedecke, he escaped the clause in Canadian law which says that those found not criminally responsible for the crimes they commit must undergo a mental evaluation. Because the judge determined him to be competent, Luedecke will neither undergo an evaluation nor serve jail time.

The woman who accused him however, says she will take the case all the way to the Canadian Supreme Court which under Canadian law, is her right.That doesn't mean that the Supreme Court will hear it.

Men and women engage in a weird variety of sleep sex, says a report in the current issue of the medical journal Sleep. "It's just like sleepwalking," said Arthur Spielman, a psychologist with the Center for Sleep Medicine at Weill Cornell Medical College in Manhattan. "You don't know you're doing it, and you don't remember the next day that it's happened." In recent years, Spielman has treated two men who, after going to sleep, began masturbating and groping their wives. In both cases, their young daughters were sleeping in the same bed. "Luckily, neither girl saw anything, but the wives were furious," said Spielman. "It was a painful and humiliating problem."

Dr. Michael Thorpy, director of the Sleep-Wake Disorders Center at Montefiore Medical Center in The Bronx, said the patient whose wife dumped him is "bewildered." "I do believe this was done subconsciously," Thorpy said. It may also run in families. The husband's brother and sister had a history of sleepwalking.”

The new report, "Sleep and Sex: What Can Go Wrong?" by sleep-disorder experts at the University of Minnesota Medical School, cites 125 cases of sex in slumberland --- from ripping off clothes and ‘violent masturbation’ to molesting partners or others nearby. The sex acts often come with loud noises and ‘dirty talk.’

"These sorts of behavior are much more common than we thought," co-author Dr. Mark Mahowald told The Post. "It's so embarrassing; people are hesitant to bring it up with professionals."

Mahowald said the study has ramifications for criminal cases: "Illegal behavior can occur without awareness or responsibility."

In Bridgeton, N.J., in 2005, Jonathan Hutchinson, 33, testified he sleepwalked into his girlfriend's daughter's bed, but didn't remember molesting her. He was convicted of child endangerment, but acquitted of sex assault. He may have been rightly convicted of child endangerment because if he knew he was a sleepwalker, then he should have made sure that girlfriend’s daughter’s door was properly secured before going to bed.

The first recorded case apparently dates to 1846. According to the BBC (as quoted in Wikipedia), there are now 68 known cases of "homicidal somnambulism." When they come to court the defense against murder charge has been on the order of: "I was sleepwalking and therefore, ladies and gentleman of the jury, I was not myself at the time I murdered [her/him]...and so I deserve acquittal."

On a more legal basis, the argument has been: “The defendant was not in his normal state of mind when he committed the act. Sleep walking is a ‘parasomnia’ manifested by ‘automatism’; as such, harmful actions committed while in this state cannot be blamed on the perpetrator.”

The argument has been successful at times. Two of three well know trials for murder while sleep walking ended in acquittal, the other in a conviction for murder. Coincidentally, two of the trials (one conviction, one acquittal) occurred in the Phoenix area, and were tried in the same legal jurisdiction (Maricopa County Superior Court).

Jules Lowe, 32, of Greater Manchester, England may have made legal history in the UK after being acquitted of murdering his father because he was sleepwalking at the time. He was found not guilty due to insanity and sent to a psychiatric hospital for an indefinite period of time. He told the police he attacked his 82-year-old father Eddie while he was asleep and had no recollection of the incident in October 2003.

Dr Irshaad Ebrahim, director of the London Sleep Centre, was called in to establish whether what Mr. Lowe claimed was true. An expert witness for the prosecution, Dr Ebrahim and his team carried out a series of overnight sleep studies on Mr. Lowe before his trial. The tests --- called a polysomnography, measures functions including brain waves, muscle activity and breathing activity.

Scientists also look at factors known to trigger sleepwalking episodes in people, such as alcohol and stress. Dr Ebrahim told the BBC News website: "Mr. Lowe had a history of sleepwalking and this was generally worse when he drank alcohol but he had never been violent before the night of this offence. However, his step-mother had just died and there were several other stressful factors occurring in his life before he had the very violent sleepwalking incident in which his father was murdered. His father was very close to him and they had a close relationship.”

Dr Ebrahim said the tests showed Mr. Lowe had indeed been sleepwalking at the time of the attack, in a state called automatism. Automatism --- defined legally as acting involuntarily --- falls into two types. These are insane automatism, considered a "disease of the mind", and non-insane automatism, linked to external factors. Mr. Lowe's diagnosis of insane automatism meant he could not be held responsible for battering his father to death. He was sent to a psychiatric hospital indefinitely.

"We've had people prepare meals in their sleep" said Dr. Mark Mahowal, director of the Minnesota Regional Sleep Disorders Center. "We've had people go next door to borrow a cup of sugar in their sleep. And there's no question about the fact that people can have sexual activity during their sleep without conscious awareness of it. We've had people drive long distances in their sleep."

Ken Parks of Toronto was acquitted of the murder of his mother-in-law and the attempted murder of his father-in-law in 1989. That decision was upheld by the Supreme Court a few years later. Parks turned himself over to authorities after the crime, but doctors determined that he was asleep when it happened. He drove from Pickering to his in-laws' home in Scarborough and brutally attacked his wife's parents. He claimed that he was asleep even when he was driving his car 20 kilometres to get to his in-law’s home.

I know that is quite possible. In 1960, I was riding a motor scooter down Highway 69 in the early hours of the morning while returning home from a long trip. About a mile ahead of me was a wide turn and suddenly I was at the turn. I had fallen asleep while heading to it and only became conscious of the fact that I was about to drive off the road when I reached the curve of the road when an oncoming truck driver flashed his high beams at me and blew his horn. My eyes had been open all along but my mind was totally asleep.

Dr. Meir Kryger, director of the Sleep Disorders Center at the St. Boniface Hospital-Research Center in Winnipeg, Canada, wrote, "The potential for sleep disorders to become the 'Twinkie' defense of the 21st century is frightening." The ‘Twinkie Defence’ refers to a case many years ago in which an alderman in San Francisco murdered the mayor because he was gay and claimed that because he had eaten Twinkies, his mind went strange and he didn’t know what he was doing. He was acquitted of the murder.

This kind of defence and homicidal somnambulism concerns me because anyone can use it as a means of escaping crimes. “However, if a sleep problem is established,” said Dr. Clete A. Kushida of the Stanford University Sleep Disorders Clinic, "the courts and the public have to accept that it's a disease like any other disease."

What I really fear is that some day, someone who plans to kill another person, may do so after he has previously established that he is a sleepwalker. When that happens, it may be impossible to prove that he had no control of his actions when he committed the murder. I suppose a brain scan may prove one way or another if there is strange activity in the brain while the person is in state of somnambulism.

Individuals with problematic sleepsex should not hesitate (although some appear to do so out of embarrassment) to seek professional help from a physician, psychiatrist, or psychologist who specializes in sexual and/or sleep disorders. In general, sleepsex may be managed as other parasomnias (sleepwalking in particular) are by avoiding common event-precipitating factors such as drugs, alcohol, fatigue (sleep deprivation), and stress. Shapiro has indicated that clinical management of sleepsex may also include...psychotherapy, pharmacological treatment (e.g., benzodiazepines), and dealing with specific sleep problems (e.g., sleep apnea).