NationStates Jolt Archive

http://www.msnbc.msn.com/id/18999826/site/newsweek/

Oh, possibly NSFW image. Not by much, though.

It's Called 'Sexsomnia'
People with this rare disorder engage in sexual activity while asleep, but don't remember it later.

By Anne Underwood
Newsweek

June 11, 2007 issue - When Jan Luedecke of Toronto was arrested and tried for sexual assault, he had an unusual defense—he did it in his sleep. Really. It may sound farfetched, but Luedecke, who was 33 at his 2005 trial, had a history of sleepwalking. On the night in question, he'd been drinking at a party and found himself sacked out on the couch with a woman he'd met there. Hours later, she jolted him awake and demanded to know what he was doing. Luedecke claimed he was unaware he was having sex with her. "Under the law, if there's no intent to commit a crime, you haven't committed a crime," says Dr. Colin Shapiro, director of the Youthdale Child and Adolescent Sleep Center in Toronto, who testified for the defense. Luedecke was acquitted (to the outrage of women's organizations in Canada), and the case is now on appeal.

Add sex to the roster of unlikely sleep behaviors known as parasomnias, which range from sleep driving to sleep eating. Last week psychiatrist Carlos Schenck and neurologist Mark Mahowald of the Minnesota Regional Sleep Disorders Center published a review article in the journal Sleep on what they call "sleepsex," or "sexsomnia." Think of it as a more advanced form of sleepwalking. It covers the full gamut of sexual activity, from fondling to intercourse, with one crucial difference. The patients apparently have no conscious awareness of what they're doing and, when wakened, have no recollection of it.

Is this for real? Reported cases are still rare—Schenck and Mahowald found only 31 in the medical literature. But they say that's partly because of the embarrassing nature of the problem and partly because there's so little public awareness of it. Sexsomnia was not even recognized by the American Academy of Sleep Medicine until 2005. Psychologist Michael Mangan at the University of New Hampshire, author of the 2001 book "Sleepsex: Uncovered," believes there are far more cases than the literature would indicate. He maintains a Web site on sleepsex that has registered comments from more than 1,000 sufferers.

Sleepsex is far different from your average sexual dream. Dreams occur during REM sleep, when the body is largely paralyzed. Sleepsex takes place during partial arousal from deep sleep, when one is free to move. Dreams can be remembered later, under the right circumstances. But sleepsex appears to belong to a mental netherworld in which brain regions devoted to higher thought, judgment and reasoning are shut down, while areas governing more primitive functions (such as locomotion, eating and sex) are still active. Put them together, and it can be a bad combination for someone who is already predisposed to sleepwalking or other parasomnias. For such a person, anything that induces more deep sleep—such as excessive alcohol consumption or persistent sleep deprivation—only increases the risk.

Granted, sleepsex sounds amusing—and some of the cases have their comical aspects. "One man had been initiating intercourse on almost a nightly basis," says Mangan. That was apparently fine with his wife, until "one night he started snoring." In another case, a female sexsomniac routinely groped her husband. Whenever he responded, says Schenck, "she would wake up and accuse him of forcing sex on her while she slept."

But doctors emphasize that sleepsex can lead to both physical and psychological damage. Bed partners have been known to suffer lacerations. (It's not uncommon, Schenck explains, for male sexsomniacs to display much rougher behavior during sleepsex than waking sex.) One man masturbated in his sleep with such energy that he suffered "repeated bruising of the penis" and avoided sexual intercourse for more than eight years. A man in Singapore masturbated in his sleep every night, leaving his wife feeling "cheated." "People experience real problems in relationships because of it," says Mangan.

Schenck and Mahowald hope that publicizing the existence of sexsomnia will cause more people to seek help. The condition is highly treatable with the generic anti-anxiety drug clonazepam. Seeking help can only work to a sufferer's advantage. After all, if you're going to have sex, you might as well enjoy it.

I've actually heard of it before. Opinions?

http://www.msnbc.msn.com/id/18999826/site/newsweek/

Oh, possibly NSFW image. Not by much, though.



I've actually heard of it before. Opinions?

If you can't stop yourself from raping people in your sleep, then you should be committed to a mental health institution for your own protection and the protection of others.

"Under the law, if there's no intent to commit a crime, you haven't committed a crime," says Dr. Colin Shapiro
Bullshit, Doc. Go back and read a law book. Any law book. Hell, a script from "Law and Order" would do.

I've initiated make out sessions with people in my sleep.

They were willing though, and I woke up before things got too much further and had assumed that they initiated the makeout session.

Bullshit, Doc. Go back and read a law book.

Gah! You scared the hell out of me when I saw your post. I was just like "Aaa! I tried to make it as safe as possible!"

Anyway, the first thing I thought of when I saw that was the crime of "Involuntary Manslaughter".

Bullshit, Doc. Go back and read a law book. Any law book. Hell, a script from "Law and Order" would do.

Anyway, the first thing I thought of when I saw that was the crime of "Involuntary Manslaughter".

Well, the doctor is wrong in that many crimes can be committed recklessly, or even impose strict liability. He is correct in the case of rape, though; it requires intent to penetrate, and a lack of reasonable belief in consent.

The first of these points is always a bit odd (how can you intend to not penetrate and still do it, short of tripping and falling in?), but I can't see how an unconscious person could form the second limb of intention.

Err...riiiiiight.

Err...riiiiiight.

Keep in mind that this has been recognized tens of times by doctors and has been accepted by the Academy of Sleep Medicine (Or whatever it's called) meaning that either these people are the best liars in the history of forever, or it's an actual condition.

Well, the doctor is wrong in that many crimes can be committed recklessly, or even impose strict liability. He is correct in the case of rape, though; it requires intent to penetrate, and a lack of reasonable belief in consent.

The first of these points is always a bit odd (how can you intend to not penetrate and still do it, short of tripping and falling in?), but I can't see how an unconscious person could form the second limb of intention.

Exactly, he can't be aware that she didn't consent.

It's a loophole, but it's there nonetheless.

It's a loophole, but it's there nonetheless.

Actually, it's not. At least in some jurisdictions.

Exactly, he can't be aware that she didn't consent.

It's a loophole, but it's there nonetheless.

Well, in fairness, he didn't have a reasonable belief in consent at all.

I'm really not sure about this one. My first reaction was not guilty by way of insanity, but it is an odd situation.

I've initiated make out sessions with people in my sleep.

They were willing though, and I woke up before things got too much further and had assumed that they initiated the makeout session.
Ah, well, that explains it, then. :D

Anyway, this is definitely...interesting. I'd use it as an excuse--it's what I voted--except I probably wouldn't have a chance and would be horrified at myself if I actually did it.

"I didn't mean it! So you can't send me to jail!" How amusing, thanks. :D

Well, that's fair enough. If they really didn't, that would be an accident.

Bullshit, Doc. Go back and read a law book. Any law book. Hell, a script from "Law and Order" would do.

"I didn't mean it! So you can't send me to jail!" How amusing, thanks. :D

Ah, well, that explains it, then. :D

Anyway, this is definitely...interesting. I'd use it as an excuse--it's what I voted--except I probably wouldn't have a chance and would be horrified at myself if I actually did it.
It's sorta like what one lady described in the article did... except that I wouldn't get upset about being woken up because a guy I invited into my bed in the first place was groping me/making out with me in my sleep.

Heard of it before yes. It's apparently extremely rare. Not something I give much thought to since I don't sleepwalk.

Heard of it before yes. It's apparently extremely rare. Not something I give much thought to since I don't sleepwalk.

That you know of.

:p

Well, that's fair enough. If they really didn't, that would be an accident.

Not always. Killing someone especially but other things as well, saying "oops" doesn't get you off the hook nor should it. Would let a lot of reckless people escape punishment.

Not always. Killing someone especially but other things as well, saying "oops" doesn't get you off the hook nor should it. Would let a lot of reckless people escape punishment.

True, but recklessness requires a degree of foresight of the risk. The law doesn't punish genuine accidents; if you really didn't mean to do something, and didn't foresee the risk that it might happen from another act and go on to do that act anyway, then generally speaking you shouldn't be punished.

Not always. Killing someone especially but other things as well, saying "oops" doesn't get you off the hook nor should it. Would let a lot of reckless people escape punishment.

Arguably, having a weird medical condition that causes you to have sex without being conscious is a teeny bit different then being reckless.

Not always. Killing someone especially but other things as well, saying "oops" doesn't get you off the hook nor should it. Would let a lot of reckless people escape punishment.
Maybe he should be put on probation and allowed to be free on the condition that he takes this medication that was mentioned in the article (which would prevent him from attempting to initiate any more sex in his sleep).

Maybe he should be put on probation and allow to be free on the condition that he takes this medication that was mentioned in the article (which would prevent him from attempting to initiate any more sex in his sleep).

Yeah, that was what my thought was. Give him little or no sentence other then requiring him to get meds or therapy to stop or almost stop it. Which, having been through a trial, he'd probably do even if the court didn't order him to.

Bullshit, Doc. Go back and read a law book. Any law book. Hell, a script from "Law and Order" would do.

Um... He's on to something, you know. But he could probably watch "Law & Order: Criminal Intent". *Le hint*

Yeah, that was what my thought was. Give him little or no sentence other then requiring him to get meds or therapy to stop or almost stop it. Which, having been through a trial, he'd probably do even if the court didn't order him to.
Yeah, I imagine that's not something a sensible person would want to do twice.

Maybe he should be put on probation and allowed to be free on the condition that he takes this medication that was mentioned in the article (which would prevent him from attempting to initiate any more sex in his sleep).

If the medication is effective then that would be acceptable I suppose. Though if for whatever reason he chooses to stop taking it (people are dumb after all) and another incident occurs then I would feel no sympathy for his actions.

It's sorta like what one lady described in the article did... except that I wouldn't get upset about being woken up because a guy I invited into my bed in the first place was groping me/making out with me in my sleep.

Aye, aye...true.

Bullshit, Doc. Go back and read a law book. Any law book. Hell, a script from "Law and Order" would do.

it may have been on it too

If he went to jail I'd feel sorry for his cell mate

edit: Durring the day he should be free but at night they should put him in the same cell at Paris Hilton!

http://www.msnbc.msn.com/id/18999826/site/newsweek/

Oh, possibly NSFW image. Not by much, though.



I've actually heard of it before. Opinions?

Ok...

Bullshit, Doc. Go back and read a law book. Any law book. Hell, a script from "Law and Order" would do.

Actually, he's absolutely correct.

Well, the doctor is wrong in that many crimes can be committed recklessly, or even impose strict liability. He is correct in the case of rape, though; it requires intent to penetrate, and a lack of reasonable belief in consent.

The first of these points is always a bit odd (how can you intend to not penetrate and still do it, short of tripping and falling in?), but I can't see how an unconscious person could form the second limb of intention.

Sexual assault laws in Canada are slightly different. Penetration is not required. Sexual assault is an assault, of a 'sexual nature'. Sex, without consent. Period. You must intend to apply force in an assault, or cause the other person to believe you intend to do so. The same is required in a sexual assault. If you are asleep, you clearly cannot form that intent.

I have sexsomnia.

<.<
>.>

I've actually heard of it before. Opinions?

He's got a very good chance of having his acquittal upheld.

sadly this is how my sisters 4th child came into being and the reason that she had her tubes tied. Her husband got amorous one night and she enjoyed it until she found out he was sleeping. Obviously safe sex isn't safe if one partner is unable to slip on the protection because he is asleep;)

Inadequate defence. No better than "I was drunk and didn't know what I was doing."

The guy was aware of his condition (sleepwalking.) Sleeping on the same sofa with a woman who had not consented to sex was irresponsible of him, like an epileptic driving a car.

Jail.

Bullshit, Doc. Go back and read a law book. Any law book. Hell, a script from "Law and Order" would do.

It depends on the crime actually, so he might be correct.

For example, here in the state of Oregon, intent must be proved for a person to be convicted of tresspass. One of the businesses I work for has had ongoing legal problems of a land use nature, so I'm uncommonly versed in the ordinace.

my mates dad sleep works which is rather amusing to watch, though I imagine dreaming that your at work must be terrifying

in my own personal case I sleep fart :p

The guy was aware of his condition (sleepwalking.)

yes all sleepwalkers are clearly out to sex you up in your sleep!

The guy was aware of his condition (sleepwalking.) Sleeping on the same sofa with a woman who had not consented to sex was irresponsible of him, like an epileptic driving a car.


No, it is a a rare condition that you couldn't expect him to know about and, as the majority of sleep walkers do not have this... disease, he could not be expected to be aware he was putting anywone in danger. From now on he should be required to take the medication and that's it.

Inadequate defence. Clearly not what the courts found. But hey, you obviously know better. No better than "I was drunk and didn't know what I was doing." Self induced intoxication is not comparable to automatism. Not in this country, and likely not in yours.

The guy was aware of his condition (sleepwalking.) Sleeping on the same sofa with a woman who had not consented to sex was irresponsible of him, like an epileptic driving a car. Oddly, epileptics drive cars all the time. We should round them up.

There is no evidence that he was aware of his condition before this happened.

It depends on the crime actually, so he might be correct.

For example, here in the state of Oregon, intent must be proved for a person to be convicted of tresspass. One of the businesses I work for has had ongoing legal problems of a land use nature, so I'm uncommonly versed in the ordinace.

Sorry...what? Are you talking about criminal or civil trespass?

I've actually done it. To put it bluntly, my girlfriend woke up with semen in her and neither of us remembered having sex. Please no-one make a joke about that, it rather freaked us out since she could have gotten pregnant then.

It's not really a comparable situation though, since consent was firmly established between us. Whereas in the case mentioned, they seem to have shared a sofa because he wasn't man enough to take the floor.

Now what I'm wondering is how clothed they were. Anyone got an earlier more factual link?

I've actually done it. To put it bluntly, my girlfriend woke up with semen in her and neither of us remembered having sex. Please no-one make a joke about that, it rather freaked us out since she could have gotten pregnant then.

It's not really a comparable situation though, since consent was firmly established between us. Whereas in the case mentioned, they seem to have shared a sofa because he wasn't man enough to take the floor.

Now what I'm wondering is how clothed they were. Anyone got an earlier more factual link?

Consent was firmly established between you?

In Canada, you can not give consent when you are passed out, or sleeping. There is no, 'well she usually lets me so...'. Consent needs to be sought each time. So guess what? It WAS a comparable situation.

And if you give me a second, I'll pull up the case if I can.

Clearly not what the courts found. But hey, you obviously know better.
I'm giving my opinion. See? No gavel at the bottom.

Self induced intoxication is not comparable to automatism. Not in this country, and likely not in yours.

And I'm saying that it is comparable in this: the man put himself in a situation where he could take an action which would cause harm, then diminished (severely diminished, in the case of sleep) his ability to exercise conscious choice.

Oddly, epileptics drive cars all the time. We should round them up.

You know what I mean. Of course there are degrees of epilepsy, and many epileptics notice warning signs of an impending attack, so could pull over. If you're subject to sudden blackouts, you should not drive a car.


There is no evidence that he was aware of his condition before this happened.

Ah, let's talk about that when someone has found a more informative link.

Alright, this is long, so I'll break it up a bit.
R. v. Luedecke

R.J. OTTER J.:—

Introduction

1 The evening of July 5, 2003 and the early morning of July 6, 2003 are dates that will be seared forever in the memory of the complainant, L.O., and the defendant Jan Luedecke. Ms. L.O. was attending the annual croquet party at 15 Blantyre Avenue in Toronto with a few of her friends. She arrived at about 7:00 p.m. There were approximately 50 to 60 people present. She consumed several drinks over the course of the evening and participated competitively in the tournament. At about 2:00 a.m. the following morning, feeling tired and cold, she sat down in the corner of a sectional couch in the living room of the premises to rest and await departure with her friends. She fell asleep. She was abruptly jolted out of her sleep to find a man on top of her having sexual relations with her. Her underwear had been removed and her skirt had been lifted up. She pushed the male off onto his knees on the floor; this person was the defendant, Jan Luedecke. She asked him, "who are you, like what are you doing?", grabbed her belongings and started to leave. She returned to get her car keys and found the defendant was still standing in the living room. She asked him, "who are you, what's your name?" He responded, "Jan". He was not a person that she recognized from the party. She left, grabbed her cellphone, and called, among others, her friend S.B. As a result of a return call, she proceeded ultimately to Women's College Hospital, where a physical examination was conducted and antibiotics were administered.

2 Jan Luedecke, a hard-working owner-operator of a landscaping company, attended the same croquet tournament with a view to defending his championship. He had spent the previous evening driving up to a friend's cottage at Georgian Bay, where he drank alcohol and consumed some magic mushrooms. He arose at dawn the next day to swim in Georgian Bay. He drove back to Toronto, arriving at the party around 7:00 to 7:30 p.m. During the course of the evening he consumed eight to 12 beers, a couple of drinks of rum and Coke, and a couple of vodkas. At approximately 4:00 a.m., having been awake for virtually 22 hours, he went into the living room at 50 Blantyre Avenue, the residence of his friend and employee, and fell asleep at the opposite end of the same couch as the complainant, L.O.

3 His next recollection was being pushed by a woman off the couch onto the floor. He testified he was completely dazed and in shock. After Ms. L.O. left, he drove to his parents' place a few blocks away and went to sleep. He awoke to go to the bathroom and found himself wearing a condom, which he removed, flushed down the toilet, returned to bed, and awoke later the same day having a vague recollection of something happening. He wished to return to the scene of the party. He eventually contacted his friend Tim Dunthorne at 50 Blantyre to be advised it was not a good time to come over. The police were there. They had arrested somebody for sexual assault. When advised of this, Mr. Luedecke informed Mr. Dunthorne that, "I might be the guy involved with this. Could I please talk to the police?" Detective Duthie came on the phone. Jan Luedecke told Detective Duthie that he thought he was the perpetrator. He might have been involved with someone on the couch. The police urged him to come down to the police station. He responded, saying "no problem." He would be there shortly. He subsequently attended at the police station and, despite receiving advice as to his right to counsel, proceeded to give a completely voluntary statement, outlining his involvement to the best of his recollection without contacting a lawyer. He was arrested and charged with sexual assault and later released.

4 The factual issues in this case are not fundamentally in dispute. It is clear that Jan Luedecke had some form of sexual relations with the complainant, L.O., without her consent. The complainant believes that it involved sexual intercourse by way of penetration to her vagina by the defendant's penis. She supports her conclusion by her sensation of internal vaginal irritation, which, in her experience, was consistent with the use of a condom and penile penetration. Mr. Luedecke has no specific recollection of penile penetration. An obvious finding of fact is that there was indeed sexual relations, most likely sexual intercourse, by Mr. Luedecke with Ms. L.O. without her consent.

5 This is one of those rare criminal cases where the defendant advances the defence of non-insane automatism, asserting that the he was in the state of automatism at the time of the incident. His conduct was non-volitional and not the exercise of his conscious will. Therefore, no criminal act has been made out. The defence asserts that the defendant's state of mind is not a mental disorder or a disease of the mind. In law, the defendant must convince the trier of fact on a balance of probabilities that the defence of non-insane automatism prevails and thereby entitles the defendant to an acquittal.

6 The Crown argues that the sole issue is whether the defence has made out a defence of non-insane automatism. The Crown maintains that the defendant has not demonstrated on a balance of probabilities that he was in a state of automatism on the night in question while committing the sexual assault. In the alternative, the Crown submits that notwithstanding this assertion of the defendant, the Crown has on all the evidence proven voluntariness beyond a reasonable doubt. In the further alternative, if the Crown has not proven voluntariness beyond a reasonable doubt, then the defendant should be found not guilty by reason of mental disorder and sent to the Ontario Review Board pursuant to section 672.47 of the Criminal Code.

Defence of Non-Insane Automatism

7 The leading case in this field is R. v. Stone, [1999] 2 S.C.R. 290. This decision sets out the procedure that should be adopted as well as the factors to be considered in the assertion of a defence of automatism. It is a two-step approach. The first step is that the defence must establish a proper evidentiary foundation for a defence of automatism; the "defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion". The positing of these two requirements in and of themselves is not sufficient to discharge the burden of the defence. In the second step, the trier of fact, in evaluating that evidence, must make a determination as to whether there is sufficient evidence upon which a properly instructed jury could find on a balance of probabilities that the accused acted involuntarily. An enquiry as to the foundation and nature of the expert opinion as well as other available evidence is required:

Relevant factors are not a closed category and may, by way of example, include: the severity of the triggering stimulus, corroborating evidence of bystanders, corroborating medical history of automatistic-like dissociative states, whether there is evidence of a motive for the crime, and whether the alleged trigger of the automatism is also the victim of the automatistic violence.
8 It goes on to point out that no single factor is determinative:

[T]here may be cases in which the psychiatric or psychological evidence goes beyond simply corroborating the accused's version of events, for example, whether it establishes a documented history of automatistic-like dissociative states.
9 First, in this case we have the evidence of Mr. Luedecke himself. He testified that he did not fully realize he was having sex with Ms. L.O. and did not recall all of the circumstances of the incident. It was clear to him that he probably had had sexual relations with her. This led him to believing he was the perpetrator and eventually attending the police station and providing a voluntary statement without the benefit of counsel. He himself found his conduct morally reprehensible and proffered the explanation that he must have been really drunk or in such a state that "I didn't really know what was going on." His explanation to the police was fractured and uncertain and differed somewhat from the testimony of Ms. L.O.. The police described his statement as "candid." Upon reflecting over his history of sexual relations in the context of several intimate relationships, he recalled approximately four such situations where he had indulged in what may be characterized at this stage as "sleep sex". He subsequently saw a forensic psychiatrist, Dr. Gojer, who then referred him to an expert in sleep disorders, Dr. Colin Shapiro.

10 Dr. Shapiro was qualified on consent as an expert in the fields of psychiatry, psychopharmacology, sleep disorders, including parasomnia and automatism, and the forensic implications of the same. Dr. Shapiro is a recognized international authority in the area of sleep disorders and has lectured and published extensively in the field as evidenced by his extensive curriculum vitae. Dr. Shapiro defined parasomnia as being classified into four types of sleep disorders. In his simplified version, he characterized those classifications as people who sleep too much, people who sleep too little, people who sleep at the wrong time, and, finally, things that go bump in the night. This latter category includes parasomnia. He defined this latter category as unexplained sudden arousals from sleep, where people are not aware of what they are doing. They act in ways that would not make sense otherwise. He pointed out that this group of disorders is more common among children than adults. Fourteen or 15 per cent of children might have experiences of parasomnia but it is widely thought to be about three per cent in adults. By and large, these sudden arousals arise in the deepest part of the sleep cycle. He described characteristics that might "span the range of abrupt arousals from deep sleep to talking in sleep, to getting out of bed, to walking, to actual eating while asleep and having sexual intercourse without being aware of it. In a few reported cases, there has been the actual driving of a motor vehicle while the person is asleep.

11 During an event of parasomnia, the individual is not conscious of what they are doing. He characterizes this as being without logic or without reason. The phenomenon of sleepwalking is also referred to as somnambulism. Dr. Shapiro himself has coined the term "sexsomnia" to describe the occurrence of sexual behaviour during sleep, which arises while a person is in a parasomnic state.

12 He went on to describe what he called the "architecture of sleep". This consists of components of light sleep initially, then intermediate sleep and followed by deep sleep. In each of these cycles, the duration of dream time (R.E.M., or rapid eye movement) gets longer and longer. Parasomnic activity more often occurs during deep sleep. Parasomniacs have abrupt arousals from deep sleep, which nobody else has. There is a very distinctive change in the brainwave pattern from deep sleep to abrupt arousal, which is the one thing in his opinion that nobody can fake. The technology used to measure these changing brain waves is called polysomnography. The patient is hooked up to electrodes around the eyes and the chin. Measurements are also made of breathing and oxygen levels. Brainwaves are measured and recorded during deep sleep. This technology has been useful in distinguishing between false and legitimate parasomnia claimants, according to the evidence of Dr. Shapiro.

13 The defendant, Jan Luedecke, attended Dr. Shapiro's sleep clinic laboratory on two successive nights. There, his brainwaves were measured and recorded by technicians and subsequently analysed by Dr. Shapiro. Dr. Shapiro reviewed four sleep graphs (Exhibit 8) of Jan Luedecke, showing where he had gone from the deepest part of his sleep to an abrupt wakening state, which in his expert opinion is the hallmark of parasomnia.

14 Dr. Shapiro testified that in his expert opinion that there is a genetic component to the occurrence of parasomnia. If a person has parasomnia as a child, he is much more likely to have it as an adult. It is much more likely if one family member has it that it is going to be found in another member of the family. He considered the evidence of Karen Luedecke and Guy Luedecke, the mother and brother of Jan Luedecke respectively, who gave evidence that they had similar parasomnic experiences. Dr. Shapiro concluded that this case was unusual to have such a conglomeration of factors.

15 Dr. Shapiro addressed the triggering factors that increased the likelihood of parasomnic activity. In this category he included physical activity and exercise, sleep deprivation, alcohol - in that alcohol can cause more by way of deep sleep and also by its disruptive effects - and stress.

16 He clearly asserted that parasomnia does not really have a pathology. It emerges out of a normal process, that being sleep. In his expert opinion, parasomnia is not understood to be a mental illness nor to cause mental illness. It is not a disease of the mind. A person is merely catapulted from a deep sleep into a period of wakefulness where they do not know what they are doing. In such a state, it is possible for someone to engage in complex and elaborate activities, such as driving a car, putting food in the microwave and eating it. These people often have partial memories of what they did. Many times they do not have any recall or their memory may only be partial. One who is in a parasomnic state may try to piece the bits of information together into a logical explanation of what happened, which Dr. Shapiro labelled confabulation.

17 He completed his analysis of parasomnia by pointing out that there are standard treatments. These include regular sleep hygiene, avoiding excessive alcohol, and the more proactive measure of a medication called clonazepam. All these treatments tend to reduce parasomnic activity by decreasing deep sleep.

18 Dr. Shapiro conducted a professional examination of Jan Luedecke. This examination included a standard questionnaire called an Epworth Sleepiness Scale, which consists of a lengthy questionnaire for daytime sleepiness. Jan Luedecke scored 14, which is higher than average. He had Mr. Luedecke submit to sleep laboratory studies with the electro-encephalogram and video monitoring for the two nights of June 3 and June 4, 2004. In the preparation of his opinion, Dr. Shapiro also interviewed Karen Luedecke and Guy Luedecke. Before proceeding with his diagnosis, he looked at possible differential diagnoses. These included any history of epilepsy, serious sexual behaviour, or anything abnormal or unusual in his sexual history. He found none. He used several categories of information in coming to his diagnosis: (1) Predisposing Factors - Mr. Luedecke had a childhood history of walking in his sleep, as evidenced by his mother; (2) Genetic Predisposition - there was a genetic predisposition, as both his mother and brother have had a number of such episodes; (3) Jan told the doctor of previous experiences of sexsomnia-type behaviour, with four separate girlfriends.

19 Dr. Shapiro was able to contact one of those girlfriends, Mia, by telephone immediately after he was told by Mr. Luedecke. She confirmed the story that Mr. Luedecke had flown across time zones to see her and that they had sexual intercourse upon his arrival. They then walked around town and went back to bed. When he awoke, she was on top of him and said to her , "what are you doing?" She responded, "you started it." In her evidence, she thought he had been asleep. It was noteworthy that this was in the context of a consensual relationship and in normal circumstances would not be something unusually important.

20 On the evidence of Mr. Luedecke, he had been extremely sleep deprived. He had been continuously awake for more than 22 hours. Secondly, he worked in a physically demanding job as a landscape gardener. On the date of the event, he had engaged in the physical activity of swimming and had driven a long distance. Thirdly, in the recent past he had attended four separate funerals of relatives or friends with whom he had been quite close. These had been stressful to him. Fourthly, he had consumed a fair amount of alcohol on the day in question.

21 The next set of characteristics the doctor described as contextual factors. First, the timing of the event. It occurred within 30 to 60 minutes after he had sat down on the couch, which was at a time when he was most likely into a deep sleep. Second was the location of the event itself. It occurred in a semi-public place, being on the couch in the living room of his friend's residence - a place readily accessible to anyone coming into the room. He pointed out that common sense would dictate that people do not normally commit sexual assaults where anyone else can walk in at any time and see what was happening. Third, there was no real attempt to conceal the misconduct. When he was asked his name, he gave his real name and looked sort of blank in his response. He had no history of mental illness or a history of non-consensual behaviour nor any criminal record. His conduct on the evening in question appeared to be quite out of character for him. Finally, there was the evidence of Ms. L.O. herself, where she indicated during the incident that Mr. Luedecke just looked at her with a "look like I was crazy." She described him in her video statement as being "incoherent" and several times referred to him as being completely incoherent.

22 Finally, Dr. Shapiro refers to the objective evidence, being the graphs from the polysomnography sleep assessments. In particular, he drew the court's attention to the sleep D.V.D. In particular, the incident where Mr. Luedecke is caught on sleep clinic video with his eyes open, starting to mumble, his words are incoherent and one arm moves in an atypical way for a person who is awake and then he goes back to sleep within about one and a half minutes.

23 Dr. Shapiro puts all the evidence together in concluding in his testimony that "I have very little doubt that this is parasomnic behaviour and what I would call sexsomnia'." In his letter of opinion, he was of the view that Mr. Luedecke was in a parasomnic state at the time of the episode. It was one of sexsomnia. It was not carried out in a conscious way.

24 He pointed out that all these factors were integral parts of his diagnosis. The one essential piece of evidence was the objective information obtained by the polysomnography. Mr. Luedecke's failure to recall the incident does not detract from his opinion that he was in a parasomnic state. In his opinion, it is not unusual for those in a parasomnic state to have broken and fractured memories of what occurred or to create a story to fit the facts, which is characterized as confabulation. He makes references to the responses of Mr. Luedecke in his statement video, in which the police investigators ask more detailed questions as being in the nature of uncertainty. Mr. Luedecke's responses indicate that he really did not know what happened.

25 Dr. Shapiro did go a bit further in his dealings with Mr. Luedecke by recommending better sleep hygiene and advising him to curtail his alcohol use. Finally, he gave a prescription for clonazepam, which Mr. Luedecke took as precautions to reduce the risk of a possible recurrence of his behaviour.

26 The defence submits that it has met both the evidentiary burden and the burden of persuasion for a claim of non-insane automatism and argues Mr. Luedecke is entitled to an acquittal on the basis of his defence of non-insane automatism.

Was it REALLY so important it merited posting twice?

Crown's Position

27 The Crown rejects the defendant's claim that he was in an automatistic state at the time in question on a balance of probabilities. The Crown agrees with the defence in that the requisite requirements of its evidentiary and persuasive burdens plus the components of a defence of automatism are correctly outlined in R. v. Stone and R. v. Fontaine (2004), 183 C.C.C. (3d) 1 (S.C.C.). The defence is founded almost solely upon the evidence of Jan Luedecke and the evidence of Dr. Shapiro. This requires careful consideration of the evidence of third parties, a close scrutiny of the defendant's own evidence and evaluating the inconsistencies and discrepancies in all that evidence. The Crown asserts that the credibility of the defendant is adversely impacted. Furthermore, the evidence of Dr. Shapiro, premised primarily upon that evidence, is equally flawed. Accordingly, the defence has not made out the defence of automatism on a balance of probabilities.

28 First, it should be noted that the Crown did not call any independent expert evidence. It did attempt to have Dr. Philip Klassen qualified as an expert in sleep disorders. He was rejected as an expert in that area.

29 The Crown details components of the evidence in support of its position. There is no prior medical history with of Mr. Luedecke with respect to automatism. The observations of Ms. L.O. are not conclusive. The anecdotal evidence of Karen Luedecke and Guy Luedecke is merely hearsay and not supported by medical evidence. In any event, the evidence of Mr. Luedecke's family regarding his previous sleepwalking habits do not exhibit any evidence of sexual behaviour or fine-motor skills that are evident in this case. The evidence of Mr. Luedecke's girlfriend Mia in Italy, obtained by Dr. Shapiro's telephone call to her, is self-serving hearsay. Mia was not called at the trial where her evidence could be tested by cross-examination. The evidence of Mr. Luedecke with regard to previous "sleep sex" took place in the context of on-going consensual relationships. In this case, Ms. L.O. was a complete stranger with whom he had had no previous relationship whatsoever. The evidence from the sleep clinic really exhibits certain brainwaves similar to sleepwalkers, but is not supportive of a conclusion that he was in a parasomnic state at the time of the incident. Furthermore, the simple arm movement viewed in the D.V.D. from the sleep clinic does not demonstrate that Mr. Luedecke is capable of complex motor skills while experiencing a parasomnic episode. The extent and degree of his actions on the evening in question, including preparing himself, putting on a condom, removing the underwear and raising the skirt of Ms. L.O. were all complex actions requiring a level of motor skills and a purposefulness that would be inconsistent with an automatistic state.

30 Furthermore, there is the testimony of Mr. Luedecke, particularly with regard to the use of a condom in previous sexual relationships that weakens his credibility. He testified that he was always used a condom when engaged in sexual intercourse. This is contradicted by the evidence of Ms. Mills, who indicated that in her relationship with Mr. Luedecke they did not normally use a condom. His post-offence conduct in wearing the condom home to bed and then flushing it down the toilet when he awoke during the night was a deliberate destroying of critical evidence. Likewise, his relatively detailed level of recollection of the assault in his statement to police is at odds with his attempts to limit his recall when testifying in the box. This was not the product of a partial memory of someone in a parasomnic state, but a conscious effort to minimize his involvement. Mr. Luedecke characterized his conduct in his statement to police as a "poor error in judgment", which the Crown characterized as being inconsistent with a defence of automatism, but consistent with the perpetration of a deliberate criminal act.

31 It should be noted that the defence is based not solely upon the evidence of the complainant, but independent, objective evidence of an expert witness and, in particular, the polysomnograph test results, which are a highly objective piece of evidence that Dr. Shapiro described as essential for separating legitimate claims of somnambulism from false ones. It is buttressed by the sleep clinic D.V.D. and the parasomnic activity of Mr. Luedecke. The expert evidence of Dr. Shapiro was not contradicted or challenged by any expert evidence by the Crown.

32 Dr. Shapiro, as an expert, is entitled to rely upon hearsay evidence. This includes the narrative of the previous girlfriend Mia, who in the circumstances would not have had an opportunity to fabricate or concoct her story, which was consistent with the version that the defendant had given to Dr. Shapiro immediately prior to the telephone call. A trier of fact must be cognizant of the fact that a substantial portion of Dr. Shapiro's evidence is based upon the testimony of the defendant and that no scientific evidence can unequivocally conclude that at the very moment in question on the evening of the incident that the claimant experienced a bout of sexsomnia. One must weigh all the evidence with a view to determining the likelihood of such a condition existing at the time in question and conclude whether such a state existed on a balance of probabilities and not the customary criminal standard test of beyond a reasonable doubt.

33 In evaluating the evidence of any witness, even that of any witness in comparison to another witness, there will usually be some inconsistencies in evidence, both internally and externally. It is for the trier of fact to evaluate those inconsistencies to determine whether they materially affect the credibility of a witness. It is not merely rejecting of one piece of evidence because it is inconsistent with the evidence of another witness, but evaluating the evidence of each party to determine which one will be accepted, if either. In many cases, it is not necessary to accept or reject any particular evidence, but just note that there is an inconsistency that may very well be a hallmark of witnesses testifying as forthrightly and candidly as any person can.

34 The Crown also seeks to discredit the expert evidence of Dr. Shapiro, aside from the fact that the opinion is based primarily upon the sole and less-than-credible evidence of Mr. Jan Luedecke by submitting that he made his diagnosis before the attendance of Mr. Luedecke in his office; he conducted no independent medical examination; he went outside the realm of his expertise by giving character evidence of Mr. Luedecke, and he commented on the circumstances of the offence, such as the amount of alcohol consumed by Mr. Luedecke.

35 In evaluating both the evidence of Mr. Luedecke and Dr. Shapiro, I must look at the evidence in its totality and not merely portions that may support one position or the other. If I look at the evidence in its totality of Mr. Luedecke, there are certain significant components that buttress his credibility. First and foremost is his post-offence conduct. As soon as he became aware of something afoul with regard to what had taken place at the party the previous evening, he sought through his friend to, and indeed did talk immediately to, the police and admit that he may be the perpetrator. He attended the police station promptly as requested and gave an inculpatory statement. He had been advised of his right to counsel. He is an intelligent individual with a university education, having attained a degree from Queen's University. Nonetheless, driven by remorse and regret for what he had done, he gave a voluntary statement to police. He exhibited genuine remorse in the witness box when he gave his highly emotional and near-tearful apology to the complainant when afforded the opportunity to do so. He has no previous criminal history. The incident itself took place in a semi-private place in a relatively open area - the living room of his friend's residence. One could reasonably anticipate, given the fact that there may have been a few stragglers still at the party, that anyone could have entered the room at any time. These factors are not consistent with the conduct of an individual who is trying to evade acceptance of responsibility.

36 The objective testing of Mr. Luedecke in the sleep lab clinic with the use of a polysomnography test by an approved technician and interpreted by an acknowledged expert in sleep disorders, Dr. Shapiro, confirm the evidence of probable parasomnic behaviour. Such results cannot be suppressed nor feigned and are scientifically independent.

37 As previously indicated, an expert is entitled to rely upon hearsay statements and materials for the purposes of forming his opinion. These can be challenged and tested in cross-examination. The validity and strength of that evidence is a matter to be weighed by the trier of fact. Dr. Shapiro was supported in his opinion by evidence of genetic pre-disposition. The observations of Mr. Luedecke's demeanour at the time is supported in part by the descriptions of the complainant, Ms. L.O., as well as his statement to police who described it as candid and the spontaneous and corroborative evidence of the girlfriend in Italy.

38 Accordingly, I find the evidence of Mr. Jan Luedecke and the third parties to be credible and fundamentally reliable.

39 Dr. Shapiro had an abundance of credible and reliable evidence as well as scientifically solid findings to support his professional opinion.

40 His use of the scientific polysomnography results, together with his evaluation of possible differential diagnoses, all lead me to the conclusion that he did not in any way try to make a diagnosis prior to an examination.

41 His use of the information that he had received that formed the basis of his opinion, including the telephone call to a third party, may have appeared to be outside his area of expertise, but are factual matters that he characterized as contextual matters that would form the foundation to assist him in forming his opinion. His opinion was not contradicted or challenged by any other expert evidence. The evidence does not support any inference of bias on the part of Dr. Shapiro in conducting his analysis. Accordingly, I accept the opinion of Dr. Shapiro and find that on the evening in question the defendant Jan Luedecke was in an automatistic state, being characterized under the category of parasomnia as sexsomnia, or sex sleep.

42 I must now turn to a determination of whether Mr. Luedecke's condition constitutes a disease of the mind. This analysis involves a trial judge determining whether a condition alleged by the defendant is a mental disorder or a non-mental disorder, namely, automatism.

43 Mental disorder is a legal term defined by the Criminal Code as "a disease of the mind." It is a mixed condition of law and fact. The trial judge must start from the proposition that the condition is a disease of the mind and determine whether the evidence in this case takes the condition out of the disease of the mind category. The first step requires addressing the internal cause theory. The trial judge must compare the accused's automatistic reaction to that of a normal person and must consider the nature of the alleged trigger of automatism to determine whether a normal person might have reacted to it by entering into an automatistic state. The comparison is a contextually objective one.

44 A "disease of the mind" is not capable of precise definition but, being a legal term, does contain a substantial medical component as well as a legal and policy component. The evidence of the medical witness in this case, Dr. Colin Shapiro, is highly relevant to a determination of whether Mr. Luedecke's condition is capable of constituting "disease of the mind." In R. v. Stone, the Supreme Court of Canada took judicial notice that it was only in rare cases that automatism is not caused by a mental disorder. The court must evaluate the evidence in each case to make a determination of whether the defendant's condition takes his condition out of the disease of the mind category.

45 In R. v. Rabey, [1980] 2 S.C.R. 513, the court adopted the "internal cause theory" of Martin J.A. of the Ontario Court of Appeal as follows:

In general, the distinction to be drawn is between a malfunctioning of the mind arising from some cause that is primarily internal to the accused, having its source in his psychological or emotional make-up, or in some organic pathology, as opposed to a malfunctioning of the mind which is a transient effect produced by some specific external factor such as, for example, concussion. Any malfunctioning of the mind, or mental disorder having its source primarily in some subjective condition or weakness internal to the accused (whether fully understood or not), may be "disease of the mind" if it prevents the accused from knowing what he is doing, but transient disturbances of consciousness due to certain specific external factors do not fall within the concept of disease of the mind.
46 Mr. Justice La Forest, in R. v. Parks, [1992] 2 S.C.R. 871, concluded that a finding of somnambulism, the alleged trigger of automatism in the Parks case, raises unique problems that are not well suited to analysis under the internal cause theory. The external cause theory was developed in the context of psychological-blow automatism. This is not applicable in this case. The position of the defence is that Mr. Luedecke's conduct arose from a sleep disorder, parasomnia, which in turn was triggered by the factors outlined by Dr. Shapiro, such as excessive sleep deprivation, significant alcohol consumption, genetic predisposition factors, and stress. The jurisprudence recognizes that somnambulism, as in the Parks case, is not suitable to this kind of analysis. Somnambulism is not a disease of the mind.

47 As mandated by the Supreme Court of Canada in R. v. Stone, the court must then proceed to analysis on the second branch of the theory, called the "continuing danger theory", which basically posits that any condition that is likely to present a recurring danger to the public should be treated as a disease of the mind. The Crown takes the position that non-insane automatism is not automatic in every case where somnambulism is established. It further submits that there is a risk of recurrence in that Mr. Luedecke had demonstrated a similar pattern of behaviour in the past and would likely do so again. The condition of the defendant is fundamentally beyond his control and should raise grave concerns with respect to the possibility of recurrence, especially a serious crime of violence such as sexual assault on a stranger.

48 Mr. Luedecke has no prior criminal record for similar conduct. Any similar past conduct as noted in his evidence and in the evidence of Dr. Shapiro were all in the context of consensual relationships and did not involve any non-consenting adults. This is the only incident of its kind in Mr. Luedecke's history. The evidence is that Mr. Luedecke has voluntarily embarked upon a plan of sleep hygiene, modest alcohol consumption and the taking of medication - clonazepam. All of these would reduce the risk of recurrence.

49 The Crown indicates that the condition of Mr. Luedecke may, under the policy considerations aspect, lead to evidence of an escalating behaviour from consensual sex to non-consensual sex.

50 We have the evidence of Dr. Shapiro that Mr. Luedecke's condition is not a mental illness or a cause of mental illness. Dr. Shapiro testified that Mr. Luedecke's sexsomnia is not a disease of the mind or a medical disorder. Despite repeated attempts by the Crown on cross-examination to have Dr. Shapiro characterize somnambulism as a mental disorder under the Diagnostic and Statistical Manual of Mental Disorders VI, Dr. Shapiro resisted such efforts. He maintained it does not fit in with the criteria set out in the DSM VI for a mental disorder. Although there are some characteristics that may be similar, when he considers the totality of the evidence, Dr. Shapiro is satisfied, at least medically, that it does not fall within the definition of a mental disorder.

51 In considering the evidence of Dr. Shapiro and all of the evidence in this case, I am satisfied that the condition of Mr. Luedecke, under the analysis required by the Supreme Court of Canada, does not fit the definition of a disease of the mind under section 2 of the Criminal Code, and therefore no disposition under section 672.45(1) is necessary.

52 This indeed is a rare case. Here, I am satisfied that the defence has established on a balance of probabilities that at the time of the incident the defendant was in a state of non-insane automatism. His conduct was not voluntary.

53 He is entitled to an acquittal.

R.J. OTTER J.

Neither of them gave consent.

That would be a VERY strange trial if it got to that point.

In Canada, you can not give consent when you are passed out, or sleeping. There is no, 'well she usually lets me so...'. Consent needs to be sought each time. So guess what? It WAS a comparable situation.


Neither of them gave consent.

I'm giving my opinion. See? No gavel at the bottom. Yes, well, I love how people feel they can give their legal 'opinions' without a whit of legal training. Do you also feel qualified to give medical advice?



And I'm saying that it is comparable in this: the man put himself in a situation where he could take an action which would cause harm, then diminished (severely diminished, in the case of sleep) his ability to exercise conscious choice. He wasn't aware of this condition. He also reported HIMSELF to the police. He was not a 'loaded gun stored improperly' as you are trying to intimate.

Ah, let's talk about that when someone has found a more informative link.
Read the case I've provided.

Neither of them gave consent.

Exactly. Just like your example. Yet this is not a strict liability defence. The mens rea (intent) MUST be made out first. Since he was sleeping, intent is impossible to make out. Really, the only issue here is whether or not he was truly asleep and acting in a state of non-insane automatism. THAT is based on the evidence.

That would be a VERY strange trial if it got to that point.

It did. He was acquitted. It is pending appeal.

BWAHAHA, magic mushrooms!
I think those might have been involved in my case too.
Debate will be resumed when I've read this bastard ... it's got my interest ok.

Since he was sleeping, intent is impossible to make out.

Since he was sleeping he cannot have had one, he was unaware.

Was it REALLY so important it merited posting twice?

What?

Since he was sleeping he cannot have had one, he was unaware.
Now you're getting it.

No intent, no mens rea, no mens rea, no crime.

BWAHAHA, magic mushrooms!
I think those might have been involved in my case too.
Debate will be resumed when I've read this bastard ... it's got my interest ok.

It IS an interesting read...I'll be here when you're done:)

I'd also like to note that the leading case of a defence of non-insane automatism is R. v. Stone. In that case, a man stabbed his wife 47 times after she insulted him. His defence was not successful. The test for the defence however, was very clearly laid out. It just hasn't worked, most of the time.

Now you're getting it.

No intent, no mens rea, no mens rea, no crime.

Now I'm getting it? I was always on your side. You were arguing with some other guy.

Yes, well, I love how people feel they can give their legal 'opinions' without a whit of legal training. Do you also feel qualified to give medical advice?

I give unqualified medical advice, yes. Right here on NSG.
If I claimed to have qualifications I do not, that would be reprehensible.
As it is, I'm just being a smartass. So shoot me.

He wasn't aware of this condition. He also reported HIMSELF to the police. He was not a 'loaded gun stored improperly' as you are trying to intimate.

He bloody well was. The guy by his own admission got very drunk and (here's the unqualified medical advice you asked for) alcohol and psychedelics together cause severe degradation of decision-making.

His initial characterisation of his own behaviour in his "candid" voluntary statement to police was "I didn't really know what was going on."

Then we have this: Upon reflecting over his history of sexual relations in the context of several intimate relationships, he recalled approximately four such situations where he had indulged in what may be characterized at this stage as "sleep sex". He subsequently saw a forensic psychiatrist, Dr. Gojer, who then referred him to an expert in sleep disorders, Dr. Colin Shapiro.

He "recalled" doing it before but had somehow thought it wasn't really a problem (presumably because he had assumed consent as I mistakenly claimed for myself before).

Presumably he didn't think getting drunk on top of magic mushrooms was "a problem" either. He IS a loaded gun, stored improperly.

Read the case I've provided.

Going back to it now.

EDIT: Finished the defence case. The Crown case is starting very badly I must say.

Now I'm getting it? I was always on your side. You were arguing with some other guy.

Bleh, like I should be expected to tell you all apart:p

Fine, fine, maybe now HE'LL get it :D

Funny you should put up this thread, my mother read me this article a couple of days ago. I think the name for it is completely ridiculous. We can't come up with anything a little more scientific-sounding?

I give unqualified medical advice, yes. Right here on NSG.
If I claimed to have qualifications I do not, that would be reprehensible.
As it is, I'm just being a smartass. So shoot me. No, I'll just mock you by pointing out the fact that you don't have enough background to form an opinion worth considering:p


He bloody well was. The guy by his own admission got very drunk and (here's the unqualified medical advice you asked for) alcohol and psychedelics together cause severe degradation of decision-making. Self-induced intoxication is not a defence for sexual assault. Hence this other tack. If he was, because of sleep deprivation, alcohol and psychadelic consumption pushed into a state of non-insane automatism, then that IS a defence.

Clearly, a combination of all these factors at once is extremely rare.

His initial characterisation of his own behaviour in his "candid" voluntary statement to police was "I didn't really know what was going on."

Then we have this:

He "recalled" doing it before but had somehow thought it wasn't really a problem (presumably because he had assumed consent as I mistakenly claimed for myself before).

Presumably he didn't think getting drunk on top of magic mushrooms was "a problem" either. He IS a loaded gun, stored improperly.

Going back to it now.
I've imbibed ridiculous amounts of liquor on top of eating copious amounts of mushrooms. Yet I never fucked someone in my sleep. Was I a loaded gun?

I've imbibed ridiculous amounts of liquor on top of eating copious amounts of mushrooms. Yet I never fucked someone in my sleep. Was I a loaded gun?

Maybe if you were taking PCP you would be.

Maybe if you were taking PCP you would be.

In any case, self-induced intoxication isn't a defence, and that includes narcotics. Besides, drug intake doesn't normally trigger sex-while-sleeping.

In any case, self-induced intoxication isn't a defence, and that includes narcotics. Besides, drug intake doesn't normally trigger sex-while-sleeping.

Yeah, from what I recall most drugs sort of render one inoperable, so to speak.

By the way...where non-insane automatism is found, the accused is acquitted fully. Insane-automatism gets you a verdict of not guilty by reason of insanity. The latter is quite dangerous...because you can end up in a mental institution, somtimes for MORE time than you would have gotten had you been found guilty. Sleepwalking is a form of non-insane automatism. It is not caused by a disease of the mind, and it is not treatable. That fact was affirmed in R. v. Parks (where a man, whilst sleepwalking, drove 23 km to his in-laws house, killing one and seriously injuring the other, and was acquitted).

Fine, fine, maybe now HE'LL get it :D

Thank you

:)

Thank you

:)
Ha, well I went back and read your previous posts...sorry about the mixup.

Inadequate defence. No better than "I was drunk and didn't know what I was doing."

The guy was aware of his condition (sleepwalking.) Sleeping on the same sofa with a woman who had not consented to sex was irresponsible of him, like an epileptic driving a car.

Jail.

good thing you aint a judge,well i hope you aint.
people do have problems,and your comparison is flawed,big diff with a guy on the couch with a girl that invited him,and some idiout that hopped in a car knowing he could have siezures at any time.

good thing you aint a judge,well i hope you aint.
people do have problems,and your comparison is flawed,big diff with a guy on the couch with a girl that invited him,and some idiout that hopped in a car knowing he could have siezures at any time.

I know there's a lot to read, so just take my word for it: she didn't invite him.

The prosecution case doesn't seem to be in the two posts, but is referred to well enough in the judgement. Not calling their own expert witness seems to me to have been a bad mistake, since it left only discrediting Dr Shapiro's opinion as a way of casting doubt on 'non-insane automatism.' And Dr Shapiro's evidence clearly carries a lot of weight and is really beyond the court's own competence.

Why a mistake? When the Crown tried to claim Mr Leudecke condition as 'disease of the mind', Dr Shapiro refused to concede that. (He was being asked a legal question there, beyond his competence anyway.) Some other expert might well have characterised parasomnia as mental incompetence.

EDIT: Ah, I see Neesika's post on R. vs Parks 1992. So I guess the prosecutor had no chance there.

I found this interesting:

47 As mandated by the Supreme Court of Canada in R. v. Stone, the court must then proceed to analysis on the second branch of the theory, called the "continuing danger theory", which basically posits that any condition that is likely to present a recurring danger to the public should be treated as a disease of the mind. The Crown takes the position that non-insane automatism is not automatic in every case where somnambulism is established. It further submits that there is a risk of recurrence in that Mr. Luedecke had demonstrated a similar pattern of behaviour in the past and would likely do so again. The condition of the defendant is fundamentally beyond his control and should raise grave concerns with respect to the possibility of recurrence, especially a serious crime of violence such as sexual assault on a stranger.

What say you, Neesika?

A harm has been done to Ms L.O, the perpetrator has expressed regret for the actions of his body (odd way of looking at it perhaps) ... so what would your legal expertise suggest by way of redress?

Actually, it's not. At least in some jurisdictions.

Well, in fairness, he didn't have a reasonable belief in consent at all.

I'm really not sure about this one. My first reaction was not guilty by way of insanity, but it is an odd situation.

Hmm, yes, I suppose you're right. It'd be more of a debatable legal gray area. I'm sure some jurisidictions have laws dealing with this, but if this is literally like sleepwalking, I don't see how he could be held accountable for his actions in any way other than "not-guilty by reason of mental defect"

Like rape and sexual assault cases aren't tricky enough...

Hmm, yes, I suppose you're right. It'd be more of a debatable legal gray area. I'm sure some jurisidictions have laws dealing with this, but if this is literally like sleepwalking, I don't see how he could be held accountable for his actions in any way other than "not-guilty by reason of mental defect"

But as Neesika pointed out, that isn't a full acquittal.

Like rape and sexual assault cases aren't tricky enough...

Well, I for one am very concerned about the precedent being set. A complete acquittal leaves the court no options like 'requiring treatment' or 'prevention of recurrence' ... and in an imperfect justice system, such a verdict is a huge incentive for bogus defences of "non-insane automatism."

EDIT: Ah, the shoddy majesty of the law!

Perhaps this is too cynical, but what price a medical opinion? $10K? $50K? A million? It depends on the defendant, on how much money they have and how much it matters to them to stay out of jail on a rape charge. It could go higher.

The prosecution case doesn't seem to be in the two posts, but is referred to well enough in the judgement. Not calling their own expert witness seems to me to have been a bad mistake, since it left only discrediting Dr Shapiro's opinion as a way of casting doubt on 'non-insane automatism.' And Dr Shapiro's evidence clearly carries a lot of weight and is really beyond the court's own competence.
Trial judgments are rarely reported, so what you have is the appeal. No witnesses are brought at appeal, only the facts established at the trial are reviewed.

Why a mistake? When the Crown tried to claim Mr Leudecke condition as 'disease of the mind', Dr Shapiro refused to concede that. (He was being asked a legal question there, beyond his competence anyway.) Some other expert might well have characterised parasomnia as mental incompetence.‘Disease of the mind’ is not a medical term, it is a legal one. Nonetheless, medical issues are paramount. Dr. Shapiro refused to characterise this type of somnambulism as a disease of the mind because it is not recognised by the medical community as a mental illness. Neither is your average kind of sleepwalking. The distinction is important, because you do NOT want to plead insanity, no matter what Law and Order might have you believe. It is also important from a medical standpoint, because there is no treatment for sleepwalking.

Medical opinion alone is not all that is taken into consideration. Policy considerations are also key. Now, this is a very rare form of somnambulism, so this defence is not going to be raised very often. Even where non-insane automatism has been raised as a defence, it is rarely successful. The totality of the circumstances must be evaluated according to the Stone test.


EDIT: Ah, I see Neesika's post on R. vs Parks 1992. So I guess the prosecutor had no chance there. No, not on that...only on challenging whether at LAW he was truly in a state of non-insane automatism.

I found this interesting:

What say you, Neesika? R v. Parks specifically states that 'sleepwalking' is NOT a disease of the mind. The Crown's position here was fairly untenable. However, the majority (in obiter) in R. v. Stone posited the idea that low-level steps could be taken to monitor a person with this condition, that would not violate s.7 of the Charter (right to life, liberty and security of the person). The dissent in that case very soundly rejected this proposition, and both the majority AND the dissent agreed that it would be nearly impossible to implement, as it would have to be for life, and that a trial judge would not be qualified to make such an order. So basically...he needs to take steps to avoid another such incident, but there will be no LEGAL requirement for him to do so. I'm fine with that.

A harm has been done to Ms L.O, the perpetrator has expressed regret for the actions of his body (odd way of looking at it perhaps) ... so what would your legal expertise suggest by way of redress?
He was acquitted fully. The actus reas (guilty act) can not be committed involuntarily...so in a legal sense, he did absolutely nothing wrong. She can attempt to recover by making a civil case of battery. However, non-insane automatism, as found by the trier of fact, MAY translate to 'accidental battery' which is not actionable, if that defence was accepted by the civil court.

In my opinion, there is nothing that can be done in this situation. His act was not voluntary, and we generally do not punish people who's acts were involuntary. Note...involuntary doesn't mean 'I didn't mean to', it means physically or mentally unable to control one's actions.

Well, I for one am very concerned about the precedent being set. A complete acquittal leaves the court no options like 'requiring treatment' or 'prevention of recurrence' ... and in an imperfect justice system, such a verdict is a huge incentive for bogus defences of "non-insane automatism." Considering this would be one of only a handful of recorded cases in Canadian history where the defence has succeeded (and this appeal may succeed at the Supreme Court level, as in the defence would be rejected), I hardly see there being a danger of every Tom, Dick and Harry trying to claim non-insane automatism. The Stone test is pretty stringent.

EDIT: Ah, the shoddy majesty of the law!

Perhaps this is too cynical, but what price a medical opinion? $10K? $50K? A million? It depends on the defendant, on how much money they have and how much it matters to them to stay out of jail on a rape charge. It could go higher. Absolutely true. Expert witnesses run around $10K as a base price. If you think this is bad...think of all the rich kids escaping drunk driving charges because they can afford expert witnesses to cast a shadow of doubt...

Then again, if you were up on these kinds of charges, wouldn't you go into some serious debt to avoid jail?

Absolutely true. Expert witnesses run around $10K as a base price. If you think this is bad...think of all the rich kids escaping drunk driving charges because they can afford expert witnesses to cast a shadow of doubt...


Well that's just utter shite that is.

Well that's just utter shite that is.

Bet you'd be singing a different tune if it was your arse on the line.

Bet you'd be singing a different tune if it was your arse on the line.

as I've said before, and a similar concept applies, everyone hates lawyers, until they need one.

Trial judgment are rarely reported, so what you have is the appeal. No witnesses are brought at appeal, only the facts established at the trial are reviewed.
‘Disease of the mind’ is not a medical term, it is a legal one. Nonetheless, medical issues are paramount. Dr. Shapiro refused to characterise this type of somnambulism as a disease of the mind because it is not recognised by the medical community as a mental illness.

Well, isn't that incompetence in the prosecution?
Looks like they tried to make Shapiro give a medical opinion, then parley it into a legal one based on some words in common. And flew in the face of medical opinion anyway, which as you say appears to regard this condition as not-an-illness.

Neither is your average kind of sleepwalking. The distinction is important, because you do NOT want to plead insanity, no matter what Law and Order might have you believe. It is also important from a medical standpoint, because there is no treatment for sleepwalking.

Never watched Law N Order. Closest I got was "100 Centre St" ... justice seems far too important to make fiction about. It is clearly very difficult to do properly and I'm glad I didn't choose it as a career. My head would explode.

Doesn't it mention in the appeal that the accused has been taking Dr Shapiro's further (medical) advice to sleep regularly, avoid excessive alcohol (because of it's disturbing effect on sleep) and medicate himself with some kind of minor tranq?
Is it not Dr Shapiro's testimony that the condition can be treated?

Medical opinion alone is not all that is taken into consideration. Policy considerations are also key. Now, this is a very rare form of somnambulism, so this defence is not going to be raised very often. Even where non-insane automatism has been raised as a defence, it is rarely successful. The totality of the circumstances must be evaluated according to the Stone test.

And a good test it is too.
This very rare form of somnabulism was not proven by Dr Shapiro's two sleep-lab examinations, nor by his verbal examination of the accused. I found the prosecution objection that Mr Leuedecke demonstrated fine motor skills (viz. removing Ms LO's panties, removing his own trousers, and applying a condom) which were very unusual in cases of somnabulism, but were not observed by Dr Shapiro, very compelling!

So why not directly challenge that, with expert testimony, instead of blathering about reducing the standard of proof due to lack of witnesses?

Why, with such an arguable case, was the prosecution unable to call their own medical expert to at least assess Dr Shapiro's video evidence? That looks pretty incompetent to me.

No, not on that...only on challenging whether at LAW he was truly in a state of non-insane automatism.
R v. Parks specifically states that 'sleepwalking' is NOT a disease of the mind. The Crown's position here was fairly untenable. However, the majority (in obiter) in R. v. Stone posited the idea that low-level steps could be taken to monitor a person with this condition, that would not violate s.7 of the Charter (right to life, liberty and security of the person). The dissent in that case very soundly rejected this proposition, and both the majority AND the dissent agreed that it would be nearly impossible to implement, as it would have to be for life, and that a trial judge would not be qualified to make such an order. So basically...he needs to take steps to avoid another such incident, but there will be no LEGAL requirement for him to do so. I'm fine with that.

In this case, I'm OK with it too. Sure, reading the prosecution case in the original trial would help, but what you provided certainly made the whole case a lot clearer to me.

As a precedent which will surely be used in far more ambiguous cases, I'd like to see it appealed all the way to the top. It looks to me like the accused has somehow obtained a medical opinion so authoritative that no other expert in that small field will dare to speak against him. And that the prosecution didn't proceed at anywhere near the standard of the defence.

He was acquitted fully. She can attempt to recover by making a civil case of battery. However, non-insane automatism, as found by the trier of fact, MAY translate to 'accidental battery' which is not actionable, if that defence was accepted by the civil court.

How dreadful. If the body of law was an individual, I would hunt them down and kill them. Not really an option I guess.

In my opinion, there is nothing that can be done in this situation. His act was not voluntary, and we generally do not punish people who's acts were involuntary. Note...voluntary doesn't mean 'I intended to', it means physically or mentally unable to control one's actions.

Yeah :(
I also wouldn't call for a change in the law based on one case, but I'm concerned about the precedent.

Thanks for your help on this one.

http://www.msnbc.msn.com/id/18999826/site/newsweek/

Oh, possibly NSFW image. Not by much, though.



I've actually heard of it before. Opinions?

This was in an episode of All Saints (http://au.blogs.yahoo.com/all-saints/1603/episode-390some-kinds-of-love) the other day!

It did. He was acquitted. It is pending appeal.

No, I meant if both of them had been charged. Since neither of them technically gave consent.

What?

I believe you posted it twice.

I believe you posted it twice.

Posted what twice? The judgment was split in half (the clue would be the paragraph numbers)...so...WTF? If you are referring to another post I supposedly put up twice, care to provide links?

No, I meant if both of them had been charged. Since neither of them technically gave consent.

Since she did not initiate the contact, nor was she aware of it until she stopped it, I would imagine the charges against her (were any brought) would be tossed out.

Posted what twice? The judgment was split in half (the clue would be the paragraph numbers)...so...WTF? If you are referring to another post I supposedly put up twice, care to provide links?

My bad. It looked like the same post twice. I was, of course, to lazy to read something that big.

My bad. It looked like the same post twice. I was, of course, to lazy to read something that big.

Well shit, now that you've admitted it, I can't accuse you of said laziness.

Take all the fun out of life why don't you?

Well shit, now that you've admitted it, I can't accuse you of said laziness.

Take all the fun out of life why don't you?

Remember to be home by 11. And don't binge drink. And don't download none of that music off the internet...And stop listenin' to that nasty satan music.

Oh...and limeys beware. England is the only common-law country that deems sleepwalking to be INSANE automatism. Meaning, you can be confined to a mental institution for sleepwalking while doing something naughty.

Oh...and limeys beware. England is the only common-law country that deems sleepwalking to be INSANE automatism. Meaning, you can be confined to a mental institution for sleepwalking while doing something naughty.

That's why I originally said that it looked like not guilty by way of insanity. I believe the case is Burgess. It's considered a disease of the mind under the M'Naghten rules because it is an internal issue that could happen again.

That's why I originally said that it looked like not guilty by way of insanity. I believe the case is Burgess. It's considered a disease of the mind under the M'Naghten rules because it is an internal issue that could happen again.

Well, since England is alone on this one, and the case is Canadian, I shall feel free to ignore Burgess :D

Although, the deeper I dig into this, the more bizarre it is, especially the distinction between internal/external as seen by various common law courts around the world. But hey...that's law for you.

Is it bad that I laughed when I read this?

Is it bad that I laughed when I read this?

It has a funny aspect.
How about this:

Woman wakes up to find drooling zombie having sex with her.
Decides it ain't bad. And he's wearing a condom!
Sex act completed, woman pushed man off onto couch. He looks dead, but hey, so does her regular fella after a bit of rumpy-pumpy.
Man wakes up next morning with a slippery condom on.


Did she rape him?

Um.

I tell ya, if I piss in the hallway in my sleep, I'm sure as hell going to be the one told to clean it up.

Well, since England is alone on this one, and the case is Canadian, I shall feel free to ignore Burgess :D

Although, the deeper I dig into this, the more bizarre it is, especially the distinction between internal/external as seen by various common law courts around the world. But hey...that's law for you.
Insanity is an odd one, as it is a disease of the mind that causes a defect of reason. This results in the internal/external distinction you refer to.

Take epilepsy as an example. Not taking your medication and doing something due to your epilepsy = an internal cause: insanity. Taking your epilepsy medication, which reacts in a strange way and causes you to do something = an external cause, and not insanity, even though it's the same disease.

I'm not sure how you could fit sleepwalking into anything other than insanity, as the English law stands. Note that a 'disease' is an entirely legal concept; medical evidence is persuasive, but not in any way conclusive.

Did she rape him?
Rape requires a penis. You figure it out.

*...*
Rape requires a penis. You figure it out.

Excuse me, under what juridiction are you defining rape?
It's sexual intercourse without consent, surely?

In my (comical and far-fetched) scenario (http://forums.jolt.co.uk/showpost.php?p=12751889&postcount=90), the woman after waking up HAD SEX with someone who had not given consent.

Rape requires a penis. You figure it out.


Riiiight... I am very glad you are not a lawmaker.
However, I will point you at the strapon and dildo selection of any sexshop. I am also curious if you would consider a man responsible for a child if it was the result of a woman abusing his sleep disorder (or if she induced the sleep through drugs), mounting his penis and receiving his ejaculation inside of her.

Excuse me, under what juridiction are you defining rape?
It's sexual intercourse without consent, surely?
English law. I would have thought that clear from things I've already said in this thread.

1. Rape

(1) A person (A) commits an offence if -

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

s.1 Sexual Offences Act 2003. The act is quite explicit, if you'll excuse the choice of words.

Riiiight... I am very glad you are not a lawmaker.
However, I will point you at the strapon and dildo selection of any sexshop.
The fact that there are dildo's changes the law? ok then, well I'm also glad that you're not a lawmaker.

Incidentally, what you are trying to get at would be assault by penetration.

I am also curious if you would consider a man responsible for a child if it was the result of a woman abusing his sleep disorder (or if she induced the sleep through drugs), mounting his penis and receiving his ejaculation inside of her.
I haven't the slightest clue what this has to do with the definition of rape.

The fact that there are dildo's changes the law? ok then, well I'm also glad that you're not a lawmaker.

Why not ? Because I would take reality into account ;) ?

Incidentally, what you are trying to get at would be assault by penetration.
According to the quote of English law you preseted it would seem you are correct. It counts as rape in many other countries though.

I haven't the slightest clue what this has to do with the definition of rape.
Her act would *also* be treated as rape in many countries. Just not in England it seems...
I was wondering if you personally would agree with calling it a crime - and if so: what kind.

Her act would *also* be treated as rape in many countries. Just not in England it seems...
I was wondering if you personally would agree with calling it a crime - and if so: what kind.

Yes, of course it is a crime. It would be a sexual assault (s.3), or causing a person to engage in sexual activity without consent (s.4).

English law. I would have thought that clear from things I've already said in this thread.

Well, since my scenario was obviously based on the case which is the subject of the thread, and the charge was actually sexual assault, not rape, sure: I should have asked "Did the woman sexually assault the man?"

I have tried to find the Canadian definition of rape, but half an hour with no success is about my limit in reading statutes.

Really, a grin would have killed you? :rolleyes:

I tell ya, if I piss in the hallway in my sleep, I'm sure as hell going to be the one told to clean it up.

You can't use that example for this situation. If you did it in your sleep you would be asked to clean it up but you wouldn't be punished for something that isn't under your control. If you rape someone in your sleep its not something you could 'clean up' and you shouldn't be punished for it if it wasn't under your control

You can't use that example for this situation. If you did it in your sleep you would be asked to clean it up but you wouldn't be punished for something that isn't under your control. If you rape someone in your sleep its not something you could 'clean up' and you shouldn't be punished for it if it wasn't under your control

It is something you could make restitution for. Neesika mentioned before that Ms L.O. can probably sue under civil law ... for money.

It is something you could make restitution for. Neesika mentioned before that Ms L.O. can probably sue under civil law ... for money.

Well that would fit the example more I suppose. Thanks :)

this can be pretty embarrassing if your out camping with some friends.

http://www.msnbc.msn.com/id/18999826/site/newsweek/

Oh, possibly NSFW image. Not by much, though.



I've actually heard of it before. Opinions?
Rapists love to make up excuses.

Next?

Bullshit, Doc. Go back and read a law book. Any law book. Hell, a script from "Law and Order" would do.

Fris, this may depend on the law where the Doc is. In Israel, for example, you need to be aware that the person you're err, raping, does not want to have sex with you in most cases (drugging people so they have sex with you is illegal though).

And obviously people can't be legally held responsible for what they do in their sleep.

BTW, there was a first season House episode about this phenomenon.

Luedecke was acquitted (to the outrage of women's organizations in Canada)

Also it seems the guy on whose behalf the Doc was testifying was acquitted, too.

http://www.msnbc.msn.com/id/18999826/site/newsweek/

Oh, possibly NSFW image. Not by much, though.



I've actually heard of it before. Opinions?I've probably flogged the bishop at night a few times m'self, but i'd actually heard a funny version of it on House, M.D.

Rape requires a penis. You figure it out.Only in nations with antiquated rape/sexual assault laws where penetration is required.

http://www.msnbc.msn.com/id/18999826/site/newsweek/

Oh, possibly NSFW image. Not by much, though.



I've actually heard of it before. Opinions?

My wife read an article in one of her magazines once called "my husband raped me in my sleep." It was about this sort of thing, except instead of a party it was just a husband and wife in their marital bed. As vanilla as it gets, except for the unconscious rape thing.

The weird thing was, when she showed it to me, she then add that if she were in that situation she wouldn't see what the big deal was. "You're my husband," she explained. One of the first thoughts to enter my head was the long running battle that women's groups have had trying to make it understood that a husband can indeed rape his wife. But that thought was immediately jostled aside by the thought that my wife may be suggesting a new game.

Only in nations with antiquated rape/sexual assault laws where penetration is required.

It is intended to represent the seriousness of the offence. There is an offence for forcing someone to engage in sex without consent, which carries the same penalty as rape, as does assault by penetration. Sexual assault is a lesser offence, albeit still a serious one.

I dunno if this is relevant or not, but on a handful of occasions I've pounced my wife in my sleep.

..no kidding.

I'd go to bed dressed in whatever, and wake up nekkid and wonder what the hell happened. I used to do that with my ex, too... and in fact when my current wife and I started getting intimate I felt it apropriate to warn her that on occasion I'd been known to do that. She said she didn't mind so all's well.

But having said that... I dunno if I buy this as a criminal defense. I honestly believe that I only do that because in my subconscious mind I see my wife as being a person it's apropriate to have sex with and so there's no barrier preventing it. I'm confortable with her, I know her, etc. (And she's made it clear that she thinks it's funny if I sleep-ounce her.) I think if any of those factors were absent, I'd do nothing. This guy in the story wasn't in that kind of situation, with a woman he was already in a relationship with and in a "safe" and comfortable environment. Assuming it's a reasonable comparison, I dont' buy it.

BTW, there was a first season House episode about this phenomenon.

Was that the one where the wife had mysterious rug burns on her elbows and it turned out that she was going down to her ex husband's apartment for late night quickies in her sleep?