For 40 years I have been doing sexual assault cases and I have done a lot of them all over Quebec. The one I propose to relate to you is very special and deserves to be publicized. However, to protect my client, I will avoid mentioning his name and even the place where this happened. On the other hand, I have his agreement to tell you the following.
It all started more than two years ago when a young man sought my services in criminal law because he was being investigated by the police for sexual assault. From the first meeting, he tells me the facts. We try as much as possible to avoid as a criminal lawyer the complete narration of the facts as long as we have not had the communication of the evidence. However, sometimes to secure potentially favorable evidence for the defence, you have to question a bit because if you don’t do it quickly, you can lose evidence that help, for example: emails, cell phone photos, text messages, history of telephone communications, etc.
Thus, from the start, he told me that he was not aware of any gesture committed, because he was asleep. It should be noted that the complainant, who had been friends with my client for a long time, had previously agreed to him sleeping in the same bed given the limited space available. She had gone to bed several hours before him and he joined her in the early morning after a drunken evening. The alleged acts then occur and she yells at him to stop. My client is angry because his friend woke him up while he was sleeping.
Needless to say that it was a first in my practice and that I had to explore this avenue. When I talked about it in my circle, no one seemed to believe it and everyone really wished me good luck, believing it more or less.
The police offered my client to pass the lie detector. He made no statement and took my advice to remain silent. However, the police had the victim’s version as well as his text messages where my client mentioned to him several times that he was asleep and apologizing.
When I was younger, I never accepted the proposal to pass a lie detector. Now depending on the circumstances, I even suggest it to the police, because charges can sometimes be avoided. If the client fails, we cannot retain the result in court. In the case in question, the crown refused this proposal wanting to go to trial, which is fine, the whole being at her discretion.
I then undertook a search to realize that this defense of sexual somnambulism (a.k.a. sexsomnia) does indeed exist, but it must be proven with an expert, otherwise the court cannot render a verdict of non-responsibility on account of mental disorder.
It took a long time to find an expert, because at the beginning of our research, very few psychiatrists knew the subject. However, a doctor was found at the Sacré Coeur Hospital in Montreal who specializes in sleep disorders.
My client had then made an appointment for a two-day clinical evaluation at the hospital after acceptance by the doctor. However, the evaluation took a year so the rest of the trial had to be postponed, which fortunately the crown and the judge accepted.
The doctor agreed to meet with my client after the trial began. Thus, the case continued during this time and I cross-examined the victim. It was agreed with my client before this exercise that there was no questioning of the alleged actions, which very rarely happens in practice. On the contrary, I had to put in evidence the factual elements which favored the thesis of my defense such as alcohol, fatigue, the advent of gestures in the first hour of sleep. All of the text messages were also entered into evidence to show that my client did not invent this defense later, but rather made a spontaneous statement immediately after the gestures in question.
With an expert’s report which demonstrated a history of somnambulism beforehand and proof that during the expertise it had been noted that my client had the full profile of such a disease, the crown agreed to concede to the judge the non-responsibility for cause of mental disorders. The judge accepted our proposal after analyzing the report and the testimony of the plaintiff.
It should be noted here that this is not an acquittal and therefore my client was automatically subject to the sex offender registry for 20 years. It would have been a disaster for him and I had to find a solution. The crown agreed in the circumstances to amend the indictment for common assault, thus avoiding entry into the register.
Once the judge declares the non-responsibility, he sends the file to the administrative tribunal of Quebec for the future. A psychiatrist then meets my client to assess him and makes a report for the court so that we can decide on the measures to be taken for the protection of the public.
The initial hearing took place in a hospital where the mental health tribunal is and by mutual agreement with all parties and the recommendation of the psychiatrist, my client was released unconditionally.
Finally, he will be able to erase all traces of his charges from his criminal record three years after the judge’s decision.
In summary, sexual somnambulism is not a usual defense, on the contrary, it is very rare and can only be presented in cases where we can prove antecedents and facts which support it. The doctor had made it clear to me that in no case will this defense be studied by medicine if we do not demonstrate an obvious likelihood from the start.
