Judge rejects sexsomnia defence in Ontario case - but what exactly is sexsomnia?

A judge has upheld a conviction against an Ontario man. (Getty Images)

A judge has upheld a conviction against an Ottawa-area man who claimed his sexual assault of a woman after a house party was a case of “sexsomnia.”

The incident occurred in 2011 in Brockville, Ont. Ryan Hartman was sleeping on the same air mattress as the woman. He maintained that he was asleep throughout the assault and has no recollection of it.

Monday’s ruling was regarding Hartman’s appeal of his 2012 conviction of sexual assault.

Justice Kimberly Moore said she rejected the testimony of Dr. Colin Shapiro, the psychiatrist who coined the term “sexsomnia,” and said that Hartman likely had the disorder.

The condition, which is included in the Diagnostic and Statistical Manual of Mental Disorders (DSM–5), the American Psychiatric Association’s authoritative classification of mental disorders, causes people to engage in sexual behaviour while asleep.

Sexsomnia can involve varying degrees of sexual activity, including masturbation, groping, intercourse, and sexual assault, according to a 2007 study published in the academic journal Sleep.

Clinically known as sleep-related abnormal sexual behaviour and sometimes popularly referred to as “sleepsex,” the disorder falls under the broader category of parasomnias, which are undesirable physical events or experiences that occur during entry into sleep, within sleep, or during arousal from sleep, according to Dr. Michel A. Cramer Bornemann, lead investigator of Sleep Forensics Associates in Minneapolis/Saint Paul, Minn.

Parasomnias are divided into those that arise from non-rapid eye movement sleep (such as sleep talking and sleep walking) to those that arise from rapid eye movement sleep (such as REM Sleep Behaviour Disorder), which are “usually described as dream enactment behaviours that frequently have violent tendencies”, Bornemann says.

Bornemann, who’s also the director of Rochester, Minn.’s Olmsted Medical Center’s Sleep Medicine Services, notes that REM is generally now recognized as a harbinger for neurodegenerative disease such as Parkinson’s.

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“Despite the increased general awareness and formal clinical recognition, much confusion remains about sleep-related abnormal sexual behaviours, particularly as a multitude of medical, psychiatric, and toxic conditions may have similar features or may mimic this condition,” he says. “Accurate diagnosis is not only essential as it translates into an effective clinical management strategy…but also has significant legal and social implications.”

For instance, the “sleepwalking defence” has been looked upon favorably by defense attorneys and has been successfully applied in cases involving “sexsomnia” resulting in a complete acquittal, as in State of Oregon v. James Kirchner.

In that 2008 case, the man had been charged with two counts of first-degree sexual abuse for touching a young girl inappropriately. He had dated the girl’s mother and said it was common for the children to fall asleep on the bed with him. He described an incident where he was having a sexual dream and woke up with his hand on the child’s leg.

Kirchner’s defense lawyer learned that he had a history of sleep walking and sleep talking. He was found to be sleeping and, therefore, not responsible for his actions. 

Despite increased awareness of parasomnias among clinicians, the prevalence of sleep-related abnormal sexual behaviours remains poorly defined.

The first official case of sexsomnia was reported in 1986. Up to 2014, 94 cases had been documented worldwide, according to a study published the following year in the journal NeuroQuantology.

A retrospective analysis of sleep-medicine patients’ medical records presented at the 2010 annual meeting of the Associated Professional Sleep Societies found that 7.6 per cent (63 people out of 832) were considered to have symptoms suggestive of sexsomnia. The prevalence of reported sexsomnia was nearly three times higher in men (11 per cent) than in women (four percent).

Though this study reflects an inherent selection bias toward a sleep-disorder clinic and cannot necessarily be extrapolated to the general community, its findings suggest that sleep-related abnormal sexual behaviours are not necessarily uncommon, Bornemann says. 

“A prior history of sleepwalking, especially in childhood, sleep deprivation, and stress and anxiety are the main influences that potentiate the expression of sexsomnia,” he explains.

Over the past decade, Bornemann, who is frequently approached by law enforcement or legal communities to analyze criminal cases that may involve a sleep disorder, mainly parasomnias, and his group analyzed more than 350 cases involved sleep-related abnormal sexual behaviours around the world. Of those, one third involved a sexual assault.

“In cases with a successful defense, hallmark features reveal that almost all cases occurred between individuals who should not have been co-sleeping together, especially as the perpetrator, almost always an adult male, had a prior history of sleep-related behaviours,” Bornemann says.

ALSO SEE: Woman who was raped worries about man’s sexsomnia defence

A typical scenario, he says, might be one involving divorced parents, who have joint custody of their young children. The father, often of limited financial means, lives in a modest or small residence that only has one bedroom. The behaviours are usually very brief, a few seconds to five minutes, and usually involve inappropriate touch.

“In these scenarios, sexual intercourse is very uncommon,” Bornemann says. “If overt alcohol intoxication is present, or other illicit substances such as cocaine, heroin, or methamphetamines are involved, a sleep-walking defense is usually not supported.”

Overt alcohol intoxication, meanwhile, would preclude the diagnosis of any parasomnia, including sexsomnia, according to the third edition of the International Classification of Sleep Disorders.

“There is no compelling scientific research data to support that a reasonable amount of alcohol will either elicit or prime the sleepwalking or sleep-related abnormal sexual behaviours,” Bornemann says. “Asocial and violent behaviours are in many ways a very predictable outcome with overt alcohol intoxication, whereas violent sleepwalking behaviours with forensics implications are not only exceedingly rare but unpredictable.”

Several reports have revealed an association between sexual behaviour in sleep with obstructive sleep apnea (OSA).

When triggered by OSA, treatment can include the use of a mask that helps maintain steady breathing at night. Other therapies are focused on sleep hygiene, including keeping a sleep schedule, establishing a bedtime routine or ritual, getting sufficient restful sleep, and managing stress and anxiety, according to the International Society of Sexual Medicine.

An anti-convulsant medication called clonazepam, which is used to control seizures, taken at bedtime has also shown to be effective, the 2007 Sleep study reported.

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