In January this year, Timothy Malcolm Rowland, a Sydney burlesque club owner, was acquitted of rape charges after successfully arguing that he experienced an episode of sexsomnia, a sleep disorder causing unconscious sexual activity.
The following outlines what sexsomnia is, as well as its potential relevance as a defence to the offence of sexual assault (rape) in NSW.
Using Sexsomnia As A Defence for Timothy Rowland's Rape Case | What is Sexsomnia?
Sexsomnia, or sleep sex, is a rare disorder where individuals engage in sexual behaviours while in a sleep state. Those affected often have no recollection of their actions.
It is classified as a non-rapid eye movement sleep disorder, similar to sleepwalking, night terrors and confused arousals. Individuals experiencing sexsomnia may exhibit a range of behaviours, including sexual vocalisations, masturbation, fondling or attempting intercourse, all while remaining in a state of partial consciousness.
Under NSW criminal law, defendants have successfully used sexsomnia as a defence in rape cases either by arguing that they lacked the requisite intent (mens rea) necessary to commit a sexual offence or that they were in a state of 'automatism' meaning they could not voluntarily commit the act.
Sexual Assault and Rape Offences in NSW
In New South Wales, the offence of sexual assault (rape) is outlined under section 61I of the Crimes Act 1900 (NSW), which states that a person commits sexual assault if they have sexual intercourse with another person without consent and knowingly, recklessly, or intentionally disregarding the lack of consent. The maximum penalty for this offence is 14 years imprisonment.
Consent is defined under section 61HE of the Act as 'free and voluntary agreement', with the law outlining specific circumstances where consent is deemed absent including cases whether victim is unconscious or asleep or where consent is obtained via coercion, force or fraud.
Defences to sexual assault in NSW include consent, where the accused reasonably believed the complainant was consenting or having an honest and reasonable mistake of fact regarding consent. Other defences may include automatism, mental impairment, or, in rare cases, duress or necessity.
Mens Rea and Sexsomnia
The mens rea (mental element) of the offence of sexual assault in NSW requires that the accused, either:
- Knew the complainant was not consenting;
- Was reckless as to whether consent was given; or
- Held an unreasonable belief that consent existed.
Knowledge of non-consent exists if the accused was subjectively aware that the complainant did not consent. Recklessness occurs where the accused realised there was a possibility that the complainant was not consenting but proceeded with the sexual activity regardless. Finally, a mistaken belief in consent will be 'unreasonable' if a reasonable person in the accused's position during the act would not have held the same belief.
Sexsomnia raises significant issues regarding the mental element of sexual assault, particularly in relation to knowledge of non-consent. If an accused engages in sexual activity while experiencing a sexsomnia episode, they may lack the awareness necessary to form knowledge or recklessness regarding the other person's lack of consent. In such cases, the accused may not have realised that they were engaging in sexual activity at all, meaning they could not have recognised a possibility that consent was absent or formed any belief about the complainant's state of mind.
If it is successfully proven that an accused did not have the relevant mens rea for the offence of sexual assault due to an episode of sexsomnia, they will be acquitted on the basis that they lacked a key element for the offence.
Sexsomnia Defences of Sane Automatism for Rape Cases
Automatism refers to a state in which an individual performs an act without being conscious of it and not being able to choose to do it. This effectively means that the act is involuntary and unintentional.
In addition, there is a general presumption of voluntariness and sanity according to the case of R v Falconer (1990) 171 CLR 30.
With the above in mind, according to law, criminal responsibility does not attach to an involuntary act, committed in a state of automatism caused by something other than a cognitive or mental health impairment.
Once evidence to support this shows a reasonable possibility of it, the presumption of voluntariness is displaced. If the prosecution fails to negate this beyond reasonable doubt, the accused or defendant charged with the criminal offence will be acquitted, with the charge(s) dismissed in court.
This defence is known as sane automatism.
Automatism is commonly distinguished between sane and insane automatism. Sane automatism refers to involuntary actions caused by external factors such as a head injury or medication reaction that are unlikely to recur. In contrast, insane automatism arises from an underlying mental health impairment or cognitive impairment which persists.
Sane automatism is different from insane automatism. Insane automatism is where there is no criminal responsibility attached to an involuntary act committed in a state of automatism caused by a 'disease of the mind' or a cognitive or mental health impairment of the kind referred to in section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). This type of 'disease of the mind' must be such that the defendant did not know the nature or quality of the act, or did not know that it was wrong in the sense of not being able to reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong in the way expressed in the case of Stapleton v The Queen (1952) 86 CLR 358.
If the defendant rebuts the sanity presumption on the balance of probabilities, it will result in a special verdict of "Not Criminally Responsible" pursuant to section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). This, under the common law is referred to as the M'Naghten Rules (mental health or mental illness defence).
The section 28 special verdict only applies to cases being dealt with in the District or Supreme Courts. It does not apply in the Local Court. The Local Court unfortunately does not have a legislative framework to deal with such cases. However, the common law position of the M'Naghten rule would apply which will effectively see the defendant discharged without any framework to follow up on the defendant progress. In such cases, the more preferred approach in the local court proceedings would be the section 14 mental health application pathway.
Whether sane or insane automatism is raised successful has important consequences for how an accused's case is treated. If sane automatism is successfully raised, the accused is fully acquitted as an element of the offence (voluntariness) is not established. In contrast, insane automatism falls under the defence of insanity section 28(1) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), requiring proof that the accused suffered from a mental health impairment or cognitive impairment that prevented them from understanding the nature of their act or knowing it was wrong. If established, the accused is not convicted but may be subject to detention or supervision under mental health laws.
What happens after there is a special verdict of not criminally responsible? Following a special verdict, the defendant will either be detained in a mental health facility until released by due process of law or ordered to be conditionally or unconditionally released amongst other available options under section 33 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW). Unless unconditionally discharged, the defendant then becomes a forensic patient and thereby supervised by the Mental Health Review Tribunal.
The court cannot order the defendant's release unless satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by his or her release.
Australian courts have generally treated sexsomnia as a form of sane automatism (see R v Coulson [2010] VSCA 146; R v DB [2022] NSWCCA 87) as it results from a physiological sleep disorder rather than an enduring mental condition. This is in contrast to recent cases in Canada, which have treated sexsomnia as a mental impairment and therefore a form of insane automatism (R v Luedecke. 2008 ONCA 716).
The success of raising sexsomnia to claim automatism at the time of the criminal act will depend greatly on expert medical evidence, the history of parasomnia episodes, and witness testimony about the accused's condition. For example, in TI v The Queen [2015] ACTCA 62, the defendant failed to successfully raise sexsomnia as a defence to the offence of incest and committing acts of indecency because the medical expert could not definitively confirm the accused suffered from the condition.
Nevertheless, if a court accepts that the accused was in a state of sane automatism, the result may be a full acquittal, as the prosecution would be unable to prove the element of voluntariness of the offence.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
