No rest for the wicked
When you start learning about the things people get up to while asleep, the idea of simply lying there slack-jawed, perhaps snoring a little, starts to seem rather pedestrian.
This isn't the occasional mumble, or a bit of sleepwalking around the house. There are people, says University of Auckland psychiatrist and sleep researcher Dr Tony Fernando, who remain fast asleep while fixing themselves a meal, riding a bicycle or driving a car. Urinating in a cupboard in the middle of the night isn't uncommon.
Others have behaviours so extreme or violent that they choose to restrain themselves before going to bed, or ensure they always have trusted family members nearby.
And sometimes people with this class of sleep disorder, known as parasomnia, end up in court, being held to account for doing something extremely unpleasant without even knowing about it.
Earlier this year, Fernando was an expert witness at the trial of an Auckland man charged with performing an indecent act on a girl between the age of 12 and 16.
The man was found not guilty, because he was suffering from a sexual parasomnia, or "sexsomnia". The man had gone into the bedroom of a girl sleeping at his house, pulled down her underwear and lain on top of her, but he told police he had no memory of the assault, and only woke up when he was being punched by the girl's father. The court heard that the man had a long history of sleepwalking and sleep-talking, and quite often had sex with his wife while asleep, something that neither party considered a problem.
This is the third time Fernando has given evidence that a defendant accused of a sex crime was in fact suffering from sexsomnia. The first, in 2006, ended in a not guilty verdict. The second, however, proved sexsomnia is not a cast-iron defence.
In 2008, Fernando gave evidence at the trial of Mark Trevor Gyde in Whangarei District Court. Gyde had been accused of indecently assaulting a girl aged between 12 and 16, while the pair were on a couch watching a video in the early hours of the morning in late 2006. According to reports in the Northern Advocate, when Gyde was interviewed by police six months later, he said he was asleep at the time and had no knowledge of anything happening.
Gyde told the court he'd suffered from disturbed sleep most of his life, and that his partner had complained for years of him kicking, yelling and groping her while he was asleep. He'd never mentioned it to his GP because it was "too vulgar" to discuss. After interviewing Gyde, Fernando diagnosed him as suffering from parasomnia.
The jury, though, weren't convinced, and Gyde was sentenced to nine months' home detention.
The international record is similarly mixed. Last year, Simon Morris, a British actor who once appeared in Hollyoaks, received an eight-year jail sentence for raping a 15-year-old, despite giving testimony that "I have a history of sleepwalking , checking my phone, gyrating against door frames, and having sex with partners in my sleep".
In 2006, however, British Air Force mechanic Kenneth Ecott, whose lifelong history of sleepwalking had earned him the nickname "Night Rider", was found not guilty of raping a 15-year-old girl at a party, after a group of drunk revellers passed out on a mattress in the living room together.
Ecott's victim woke to find him trying to have sex with her, and when she told him to stop, he wandered into the garden looking confused.
"I was drunk and went to sleep, then I woke up and my life was over," Ecott told the court, according to ABC News. "I was standing outside, completely naked, wondering what the hell I was doing there."
Claiming you were asleep at the time of an alleged crime isn't a new idea.
In 1845, respectable Bostonian Albert Tirrell slit the throat of his lover (who was a prostitute) and then burnt down her Boston brothel. Tirrell's lawyer Rufus Choate argued his client had been sleepwalking and he was acquitted. The science of sleep was pretty primitive in 1845, so it's hard to be sure of the facts, but it's worth noting that Choate was famed for his exotic and innovative defences, and that he had first tried to argue that the near-severing of Tirrell's victim's head had been act of suicide.
Since then, charges ranging from murder to burglary have been successfully defended on the grounds of the perpetrator's unconsciousness.
The sexsomnia defence, though, has only come into its own recently. The term was coined in 2003 by Canadian expert Colin Shapiro, who says sexsomnia, especially when it doesn't lead to legal action, may be quite common and has been under reported because of sufferers' embarrassment.
That same year, Shapiro was an expert witness in the trial of Jan Luedecke, a Toronto landscaper accused of raping a stranger at a party, after several guests crashed on the same sofa. Shapiro testified that Luedecke had a sexual parasomnia, and he was acquitted.
Auckland University law professor Warren Brookbanks says the principle that allows a sleepwalker or sexsomniac to go free is a fundamental one.
"One of the cardinal elements of any offence is that the act has to be voluntary," says Brookbanks. If the person was asleep at the time, and thus lacked the intention, they are not guilty of the crime.
"Whatever has happened in the real world, it hasn't been criminal conduct."
Despite the legal and ethical conundrums it creates, Fernando says sexsomnia is not all that different at a neurological level from other parasomnias such as sleepwalking, sleep-eating or sleep-driving.
"It tends to be hyped up, but it's just another behaviour."
Parasomnias occur when the wakefulness of different parts of the brain gets out of sync. In the normal sleep process, your brain goes from alert, to semi-conscious to deep sleep, and then there are different stages of sleep. Waking up is much the same, but in reverse.
With parasomnia, some parts of the brain - usually the higher-level parts responsible for deep thinking, analysis or conversation - remain in deep sleep while other parts start to wake up, including those that let you move around and perform tasks requiring little thought. This might include getting dressed, preparing food, sexual or violent behaviour, or even operating machinery.
Around 13 per cent of children experience a parasomnia such as sleepwalking; by adulthood the figure falls to around 6 per cent. Genes play a powerful role, and for those prone to parasomnia, episodes can be triggered by anything that disrupts normal sleep, especially stress, sleep deprivation, consumption of alcohol or drugs and jetlag.
Most sufferers remember little or nothing of their parasomnia. Others might recall the dream that accompanied their actions - perhaps they were dreaming of fighting off dragons or aliens, when in fact they've been attacking their bed partner.
Many sufferers, sexual and otherwise, are "disgusted" by what they've done in their sleep, says Fernando. "It's not part of their personality."
In some cases of sexsomnia, says Fernando, "patients injure themselves during a sexual act which can be so vigorous that it results in bruising or cuts".
The good news is that parasomnia can be treated using a low dose of the sedative clonazepam, which works in about 80 per cent of sufferers.
"As a sleep specialist it's a condition I really like treating," says Fernando. "It can cause so many problems for the patient, but it's so easy to diagnose, the stories are very interesting, and it's highly treatable."
For reasons of confidentiality, Fernando can't discuss any of his own patients, but the Canadian case studies in Shapiro's 2003 paper (entitled Sexsomnia - a New Parasomnia?) cover many of the typical themes. Several cases involved indecent assaults on children who had shared beds, and other stories ranged from strange to sad, with the occasional foray into farce.
Take "DW", a divorced male police officer of 43, whose girlfriend didn't actually mind his sexsomnia too much. "Apparently [writes Shapiro], he is a more amorous and gentle lover and more oriented toward satisfying his partner when he is asleep."
JK, a nightclub bouncer, was facing criminal charges for repeatedly assaulting his wife while asleep, and their marriage was on the rocks. Overnight tests showed he suffered from sleep apnoea, and when he was hooked up to a night-time anti-snoring machine and thus started sleeping properly, the assaults stopped completely.
AK, a recently married reporter, learnt from her new husband that she was spending much of the night masturbating in her sleep. The husband was losing sleep and the woman was hugely embarrassed, so she sought help from a sleep clinic.
Perhaps the strangest case involved a couple who awoke to find that their sleepwalking 16-year-old nephew had come into their room and was fondling his uncle. The boy learnt what he had done only when his mother described the details to a psychiatrist some time later, at which point he was "surprised and distraught".
The stories seem so odd you couldn't make them up. Yet if you were in the dock on a sex charge, there could be huge benefits in doing just that.
Fernando worries that talking publicly about sexsomnia as a defence may increase the chance of its misuse, but says the risks are outweighed by the benefit to sufferers who might be encouraged to seek help.
And is it possible to fake sexsomnia?
It would be difficult to get away with it, says Fernando.
"I'm relatively confident in my skills. Not 100 per cent, but there are certain patterns you look for."
There are also objective measures, such as looking at the brain activity of a subject in an overnight sleep study.
Expert opinion has sunk at least one attempted sexsomnia defence. Last year, British man Zack Thompson abandoned his initial claim that he was sleepwalking when he sexually assaulted a girl in Portugal in 2009. An American sleep disorder expert had concluded his behaviour was not consistent with the behaviour of sleepwalkers, and was more likely a result of drinking excessive alcohol.
Brookbanks says sexsomnia is still such a rare line of defence that it's hard to say if it is being abused, but he doubts it is a serious concern.
It's a bit like the myth that a criminal can feign madness to escape conviction, when in fact it hardly ever happens, and when it does they don't get away with it.
"A good example was Antonie Dixon during his trials, with his pudding basin haircut and his rolling eyes. He was trying to pretend he was insane for the benefit of the jury, but anybody could tell.
"The times that people fool trained psychiatrists are very rare."
WAKE UP TO THE FACTS
What is sexsomnia? Sexsomnia is a kind of parasomnia, a class of sleep disorder where the sufferer remains asleep while performing surprisingly complex behaviours. Other parasomnias include sleepwalking, sleep-talking or even physically attacking people while asleep. Sexsomnia sufferers have been known to grope or have sex with their bed partners without having any recollection of doing so.
Sunday Star Times