Sexomnia: Legal Defense or Excuse?

In 1998, a 7-year-old girl fell asleep at her grandmother’s house in New Jersey, only to be awakened in the middle of the night with her pants down around her ankles and her grandmother’s 41-year-old boyfriend naked on top of her. She screamed. He stopped moving and asked her what she was doing in his bedroom. When she told him that he was in hers, he covered himself with a bedspread and ran out, leaving the little girl in tears.

The grandmother later said she awoke to find her boyfriend crying and yelling, standing in front of the bedroom window naked, covered in baby oil.

Richard Overton, the boyfriend, was later acquitted of attempted aggravated sexual assault and second-degree sexual assault, despite his own testimony in court that he woke up naked next to the girl. His defense was that he suffered from an unusual sleep disorder, now identified by experts as “sexomnia,” or engaging in sexual activity while asleep.

But a new report from the National Center for Prosecution of Child Abuse reveals that some legal experts are gearing up to battle this relatively novel defense at all costs. If these attorneys convince the country’s juries, defendants like Overton will no longer be able to successfully use sexomnia as a legitimate legal defense.

The growing opposition to sexomnia is creating a divide between the medical and legal communities. Sleep specialists insist that sexomnia is a real psychiatric condition. If the courts fail to recognize such a defense, they argue, individuals suffering from a legitimate medical problem will be wrongfully convicted of sexual assault or child abuse.

“Ultimately it becomes a battle of the experts,” says Michael Mangan, a psychologist at the University of New Hampshire and author of the 2001 book “Sleepsex: Uncovered.” “The defense has their experts and the prosecution has theirs. It’s really a slippery slope any way you slice it.”

Researchers at the University of Toronto first introduced the term “sexomnia” in 2003 to describe a disorder in which both men and women perform sexual acts while asleep. Those activities can range from moaning to fondling to sexual intercourse with bed partners. The patients reportedly have no recollection of the sexual encounter upon wakening.

Over the past decade, thousands of men and women from around the globe have come forward to blog, e-mail and post Internet stories about their or their partners’ problems with sexomnia. The American Academy of Sleep Medicine recognized it as a psychiatric condition in 2005 and it has gained a wider acceptance in the general public from numerous reports in the news media.

The condition does not currently have its own category in the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association. Some mental health experts classify it as a parasomnia, which is a broad category of disorders that involve abnormal behaviors during sleep, like sleepwalking.

There is scant scientific literature on sexomnia, based on anecdotal evidence and case studies. Some experts believe it can be diagnosed using overnight sleep studies like polysomnography, a technique that measures brainwave activity while a subject sleeps. But findings are not consistent and the lack of scientific evidence has sparked a debate over whether sexomnia is even a real condition.

Mangan first began researching the disorder as a psychology graduate student in 1999, after he found himself waking up engaged in sexual behavior with his wife.

“It was a question mark for me and I went to the literature and found a few case studies,” says Mangan. “The first one was with legal implications. A man had crawled into a sleeping bag with his 14-year-old daughter’s friend.”

Mangan created a Web site on sleep sex in April 2000 and invited the public to post experiences with the disorder. Thousands of men and women have contacted him over the years to share their stories. Still, there are no good estimates of how many people really suffer from the disorder.

“We have video of people eating, punching, kicking yelling, and walking in their sleep, says Dr. Carlos Schenck, a psychiatrist at the Minnesota Regional Sleep Disorders Center and one of the country’s leading sexomnia researchers. “How is it so difficult to imagine that someone might also exhibit sexual behavior while sleeping?”

But sleep sex becomes a hot button issue when it is used as a legal defense for sexual assault, especially when the victims are children.

Current scientific research is flawed, according to attorney Rami Badawy in his new report for the National Center for Prosecution of Child Abuse. There are no convincing statistics on the disorder, which is impossible to definitively diagnose, he writes.

“The authors themselves will concede that there are problems with each of these studies,” says Badawy. “I’m always concerned about the use of unproven science to claim that a person is not guilty or an act is not legitimate. Based upon what is out there, this is not a legitimate condition.”

Badawy’s paper outlines how prosecutors can successfully contest the sexomnia defense. Attorneys should carefully examine whether a defendant has a history of sleep disorders, has previous criminal charges, or took steps to avoid situations that would lead to sexual misconduct. The publication of this legal playbook comes at a time when defendants are increasingly citing the condition in court cases. Last month, a 29-year-old Australian was found not guilty after being charged with raping his friend’s partner. It is the second time that a sexomnia defense has been successful in the Northern Territory of Australia.

“If this defense is not challenged, then one or two jurors will believe that it’s legitimate and it only takes one or two jurors for the defense to win the case,” says Badawy. “I can see how it has worked in the past.”

But sexomnia needs to be taken seriously, say medical experts.

”It’s not useful to deny that this is something that happens,” counters Mangan. “There was this case in Canada where the guy was acquitted of rape. Of course the public was outraged, but sexomnia still needs to be acknowledged as a problem. Don’t say it doesn’t exist. Just say it does exist and you need to take precautions to prevent things like this from happening in the future.”