ON Friday morning last week, Leonard Andrew Spencer stood on the steps of Darwin’s Supreme Court building, dragging deeply on a cigarette. He suggested there were two possibilities for how his evening might pan out: drinks in a local bar, or dinner inside Berrimah prison. He got lucky.
Spencer, 48, wept in the dock later that evening as a jury, after a short deliberation, acquitted him of gross indecency and sexual assault without consent. It was the first time in an Australian court that “sex-sleep” had succeeded as part of a defence.
Sex-sleep was first described by a group of Canadian psychiatrists in 1996. By 2003, this same group had come up with the term “sexsomnia” to describe the “new clinical entity”. The doctors published case studies of 11 patients and concluded that somnambulism, or sleepwalking, was only one mild variant of the many sleeping disorders known generally as parasomnias.
Sexsomniacs almost never remembered having sex in their sleep. The Canadian study examined men who had molested wives, their own children or strangers. Most cases ended in court, though not all. Women had sought out sleep clinicians to help with husbands who were either aggressively sexual in their sleep or just annoying.
In 2004, Australian sleep clinicians related how a middle-aged Australian woman, seemingly contentedly monogamous by day, would at night wander seeking liaisons. It was said that her distressed husband had gone searching the streets for her after she left the bed. He found her having sex-sleep with a stranger. (Confessions of a Sexsomniac)
Melbourne-based psychiatrist Dr Lester Walton testified in Spencer’s trial that it was “reasonably well-established that sexual behaviour can form part and parcel of somnambulism”. Dr Walton believed Spencer was a regular somnambulist who was capable of sexsomniac activity.
The 21-year-old woman, who was staying with her boyfriend in Spencer’s house in Nhulunbuy, Arnhem Land, claimed she had awoken on the morning of June 2 last year, after her boyfriend had gone to work, to find Spencer lying behind her and having intercourse with her, while he had a hand on her clitoris (which formed the gross indecency charge).
She yelled at him to get out and, as she prepared to flee the house, Spencer poked his head back in the room in and said: “Oh, sorry.”
Spencer, a hazard supervisor at the local mine, claimed to have no recollection of the event.
It is not hard to imagine that more cases will come to light, as defence lawyers ask clients facing sex charges: “Do you have any strange episodes in your sleep?”
It should be pointed out that Spencer’s lawyer, Jon Tippett QC, did not ask his client any such leading questions. It was the police, curiously, in what seemed a throwaway question, who asked Spencer whether he had sleep issues.
Spencer, who was on medication for depression, replied that he did. He said his estranged wife often had to direct him back to bed as he sleepwalked.
The woman had left Spencer, taking the children, three months before his assault charges. She had become tired of his depressive episodes and heavy drinking. She told police how she used to find Spencer, on an almost monthly basis, sleep-walking in their home. On one occasion she awoke to find him all over her, trying to have sex. She knew he was asleep on that occasion.
Other somnambulist episodes involved Spencer urinating in the bathroom handbasin. He would also walk to a basket in her son’s bedroom and urinate in it. It was in the son’s bedroom where the young house guest complained she had been assaulted.
It is impossible to know if the jury reached its not-guilty verdict on the basis of the sexsomnia evidence. They may have been impressed, on Spencer’s behalf, by what appeared to be poorly gathered police forensic evidence, and from vaginal swabs from the complainant that did not show Spencer’s DNA. They may have simply taken the view that the sexual intercourse case wasn’t sufficiently established. But the sexsomnia angle was played strongly through the trial.
Dr Walton told the jury there were five recognised stages to sleep. Somnambulists – including sexsomiacs – became most active during the deepest parts, stages three and four. Stage five was lighter, being the rapid-eye movement, or REM, stage, when dreams are said to occur. Somnambulists never remembered walking, driving cars, cooking or having sex. He described controlled studies where people sleeping alone were observed masturbating in their sleep.
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Spencer did not deny being in the woman’s bed. The defence argued that he did not remember being there. A person cannot be found guilty if there is no intent involved. That’s why the sleeper defence is a ripper.
In 2007, a British RAF mechanic was acquitted of raping a 15-year-old girl while sleepwalking. Kenneth Encott used the sexsomnia defence and was backed up by his girlfriend, who testified that Encott would grope her while he was sleeping.
In 2006, Toowoomba man Darryl Kenneth Lotz claimed he was sleepwalking when he entered a bedroom where a woman was sleeping with her boyfriend. Lotz got between the pair and started having sex with the woman. Sleep specialist Dr Roger Allen testified it was highly probable Lotz was asleep. The jury didn’t go for it and Lotz was jailed for five years.
In 2005, London man James Bilton, said to have been a sleepwalker since he was 13, was acquitted of rape after a sleeping woman claimed she had woken to find Bilton having sex with her. Bilton claimed he was asleep.
As in the Spencer case, these men had all said they had been drinking heavily and fallen asleep before the alleged assaults.
Dr Walton said parasomniac behaviour was less likely to occur in people who had been drinking heavily. Spencer had fallen asleep, drunk, about 1.30am and gone to the girl’s bedroom at 7.20am.
Dr Walton argued that Spencer could have sobered up by then. On this point he was at odds with his Canadian colleagues, who claimed heavy drug and alcohol use – along with depression or stress – could bring on parasomniac episodes.
“A person with parasomnia can walk, operate a motor vehicle, eat, perform a sexual act or even kill without the ability to … control his action,” wrote the Canadian psychiatrists, who noted their patients had psychosexual disorders, often involving fantasies about non-consenting partners.
From a legal perspective, said the doctors, the parasomniac’s ability to control sexual behaviour was “severely limited or not available” and could be considered a form of “non-insane automatism”. If the sexsomniac had no legal knowledge of his deeds, it was not a crime. The best that could be hoped for was that a court ordered them to seek treatment.
The 2005 judgment of Canadian man Jan Luedecke is the most cited sexsomniac case. Luedecke took magic mushrooms and drank heavily before going to a party in Toronto, where he collapsed on a couch next to a woman. She awoke to find Luedecke, a total stranger, having sex with her.
Luedecke testified that he awoke dazed and shocked when the woman pushed him off her. She described him as incoherent.
He testified that he went home and found that he was still wearing a condom. The next day, having vaguely remembered that “something” happened and heard here had been a sexual assault at the party, he contacted police and told them he believed he was the perpetrator.
Luedecke said previous partners had told him he had engaged in sex-sleep.
An expert, Dr Colin Shapiro, testified that parasomniacs’ brains would abruptly awaken during the deepest parts of sleep – even though they remained, outwardly, asleep.
The Crown argued that the condom suggested premeditation but the judge found Luedecke was in a state of non-insane automatism and entitled to an acquittal.
Mr Tippett, acting for Spencer, asked the jury to embrace a new idea. “You don’t reject something simply because it is not a common event.”
The judge, Steve Southwood, said they were entitled to accept Dr Walton’s expert evidence.
You must wonder how that young woman from Nhulunbuy feels. It is possible the jury believed her but felt that the beyond-reasonable-doubt case had not been established. Without belittling Spencer’s acquittal, it would be fair to say she would not be pleased that her rape complaint had helped create Australian legal history.
Source: Toohey, Paul. (2008) “Sleep Sex Acquittal a Curious Precedent” The Australian http://www.theaustralian.com.au/business/legal-affairs/sex-sleep-acquittal-a-curious-precedent/story-e6frg97x-1111116350948?fb_action_ids=104689136358638&fb_action_types=og.recommends&fb_source=aggregation&fb_aggregation_id=288381481237582 Retrieved: 21 Oct 2012