A man has escaped punishment for indecently assaulting a young girl as she slept - because he, too, was asleep at the time and suffered from the unusual condition known as "sexsomnia".
The sleep disorder sees sufferers carry out sexual acts while asleep, and later have no memory of the event.
It is at least the third time sexsomnia has been used as a defence in New Zealand, and it is being used increasingly in courts overseas.
In the latest case, an Auckland District Court jury trial was told that the man had walked into the bedroom of a girl sleeping at his house in 2011, pulled down her underwear, lay on top of her and began thrusting his pelvis.
The attack ended when the girl's father, who had been sleeping in the lounge, pushed the man off the girl, who was aged between 12 and 16 at the time.
The man told police that he had no memory of the incident. He said he must have been sleepwalking as he woke only when the father started punching him.
According to a psychiatric report, the man was remorseful about the assault, and genuinely concerned that he might have caused his victim distress or harm. The names and details of all parties are suppressed.
The jury heard the man was suffering from a form of sleep disorder or parasomnia, called sexsomnia.
Other parasomnias include sleepwalking, sleep-eating and even sleep-driving, and they are likely to happen when a sufferer is stressed or sleep-deprived.
The jury unanimously returned a verdict of not guilty "by reason of insanity" because, although the indecent assault took place, the man had not been conscious of his actions.
A subsequent hearing found the man was not mentally disordered and posed no serious threat to himself or others. His sleepwalking and sexsomnia are now being treated with medication.
According to psychiatric reports prepared for the court, the man had been a sleepwalker since childhood.
The man's wife said he frequently ground his teeth, talked in his sleep or got out of bed and walked about the house in the night, especially when he was sleep-deprived from working long hours.
The man's father was reportedly a sleepwalker too and, according to family, had once driven a vehicle while asleep.
The wife told the psychiatrist that, before the incident that led to her husband's arrest, he frequently initiated sex with her during the night, and she was "never too sure if he [was] awake".
In the incident which the man found himself before the courts, the couple had been preparing for a gathering and gone to bed around 4am, still anxious about the preparations. The indecent assault on the young girl took place two hours later.
According to an account in a psychiatric report, the man bumped into the victim's father as he walked through the lounge, waking him up.
Later, when being dragged off the victim, the man reportedly said: "What? This is my wife!"
In a report prepared for the court, Auckland University sleep researcher and psychiatrist Tony Fernando said numerous factors suggested parasomnia was the probable explanation for the assault, including his history of activity while sleeping, his sleep-deprivation and stress that night, the fact he had woken the victim's father, his confusion after the assault, and his initial insistence that the victim was his wife.
In 2006, in one of the two other cases that sexsomnia was used as a defence in New Zealand, a man was found not guilty of a sexual offence involving a young girl, on the grounds that he was asleep at the time.
In 2008, a Whangarei man was found guilty of indecent assault on a girl aged between 12 and 16, despite presenting evidence that he had suffered from parasomnia episodes for years, including making sexual advances on his girlfriend while he was asleep.
He claimed he had no memory of the assault and must have been asleep at the time, but the jury didn't buy it. The man was sentenced to nine months' home detention.
UK and Canadian courts have seen some sexual-assault cases in the past decade where the defendant has claimed to be a sexsomnia sufferer.
In 2006, a British air force mechanic, whose sleepwalking was so well known that he was nicknamed "night rider" by colleagues, was acquitted of a rape charge despite admitting that he had had non-consensual sex with a 15-year-old at a party. He said he was asleep and came to his senses only after the event.
Fernando said that although sexsomnia gets a lot of attention because of its strangeness and ethical complexities, from a neurological perspective, "it's just another behaviour", not all that different from sleepwalking or sleep-eating.
The defendant declined to discuss his case with the Sunday Star-Times.
- Sunday Star Times