Academic journal article The Journal of Gender, Race and Justice

Sexsomnia: A Valid Defense to Sexual Assault?

Academic journal article The Journal of Gender, Race and Justice

Sexsomnia: A Valid Defense to Sexual Assault?

Article excerpt


In one episode of the television drama House, MD.,1 a female patient complains of a hickey, carpet rash, and symptoms of a miscarriage, but insists that she has not had sex with her ex-husband, who lives in the apartment underneath hers.2 Dr. House, the clever diagnostician who has a penchant for discovering rare disorders, monitors the woman in a sleep clinic for one night.3 Her brain wave patterns show that in the early morning there was a sudden increase in activity from slow wave sleep, which indicates "partial sleep arousal" or sleepwalking.4 The diagnosis? The patient is a sexsomniac who has unknowingly been having sex with her exhusband.5 This episode demonstrates the extent to which sexsomnia has captured the popular imagination. In the legal realm, defendants in the United States, Canada, and Great Britain have successfully asserted it as a defense to sexual assault charges.6 Law often interacts with and adapts to changing cultural or scientific developments, and this Note explores the legal consequences of this unique disorder in the context of sexual assault.

Sexsomnia is a valid medical condition and should be accepted in the United States as a non-insane automatic defense in sexual assault crimes.7 A successful defense of automatism or unconsciousness completely relieves the defendant of liability on the basis that he or she has not committed a voluntary act and/or lacked the mens rea to commit the crime.8 However, courts should impose strict guidelines regarding when to allow such a defense in order to avoid potential abuse, such as reinforcing gender inequities.9 This Note argues that sexsomnia should not be accepted as a defense when the defendant, who knows that he or she has a history of sleepwalking, voluntarily ingests alcohol or drugs, or engages in other behavior that exacerbates the condition. Sexsomniacs should not be able to escape liability and should be treated the same way as epileptics who cause injury by driving, despite knowing the potential effect their disorders have on their ability to drive safely. 10 The use of sexsomnia as a defense must be weighed against society's need for retribution and gender equality. This Note will address the scientific background of sexsomnia, the use of sexsomnia as a criminal defense, the policy-implications of such a defense, and suggestions that would prevent its abuse.


Although sexsomnia has only recently been recognized as a disorder in the United States by the American Academy of Sleep Medicine, there is a strong indication that it is a legitimate disorder.11 The legitimacy of sexsomnia is relevant because it could ultimately lead to an acquittal or conviction of a defendant.'2 When a defendant raises a sleepwalking defense, the credibility of his or her case may depend on the credibility of the claimed disorder. For example, a court may question whether that person has a history of sleepwalking and whether the defendant's actions are consistent with what is scientifically known about sleepwalking (e.g., men usually cannot achieve erections during the sleepwalking stages of sleep).13 Thus, the scientific components and limitations of sexsomnia have important legal ramifications.14

A Science of Sexsomnia

Sexsomnia falls under the category of sleepwalking, which falls under the broader categories of either parasomniac or arousal disorders.15 This means that sexsomnia is a result of disruptions in the way the brain awakes from sleep. l6 Certain functions, like the autonomie nervous system or motor system, are activated, and even some "high order" functions are "preserved" during sleep, but other higher brain functions, like those responsible for memory and the ability to distinguish between internal and external reality, are not.17 Sexsomnia is an arousal disorder because "parasomnias represent the activation of physiological systems at inappropriate times during the sleep-wake cycle."18

Scientists recognize five stages of sleep; the first four are non-REM (rapid eye movement), and the fifth stage is REM, in which most dreams occur. …

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