It's a fucking disgusting crime. However, holding people accountable for what they did in their sleep is some tricky business when it comes to the law, as it is literally a mind/body disconnect.

Both women and men can be affected by sexsomnia, although, somewhat predictably, the women don't get charged with rape.

Talk about a messy situation all over the place. However, there is some hope: sexsomnia was successfully "cured" in Sydney, and all it took was some psychiatric counseling for the woman.

Another completely "NO FUCKING WAY" case: in 1987 a man murdered both his parents, but was acquitted due to him being fast asleep.

If a person can't stop themselves from raping people in their sleep, that person needs to be in a hospital/mental institution/whereever can prevent them from raping, until they are cured.

That pisses me off so much. Sure, you raped her, but you didn't mean to, so go home and rape some more girls. WTF?

I bet this guy doesn't have a problem not raping other men, or dogs, or whatever in his sleep. Funny how that works.

Not to say this guy isn't full of shit, but I used to date a guy who did the sleep-sex thing. He would initiate sex in the middle of the night and then not remember anything about it the next day and be totally creeped out by my descriptions of the act (not that he did anything weird, just that he didn't remember having sex). Apparently this happened with his other girlfriends as well. I don't know if someone could be forceful enough to actually rape someone while asleep, but sleep-sex can happen, from my experience. It also could be a totally made up excuse coming from a rapist.

I've read it's a real condition. I have no idea what to think about this. On the one hand, do you punish someone who has no control--supposedly--over his actions. On the other hand, shouldn't the feelings of the victim come first? How will this be atoned for?

The little turd knew that he had this condition before the rape, It was his responsibility to make sure it doesn’t happen; if you have sexsomnia maybe you shouldn’t be doing sleepovers. So now he is going to go around raping everyone with this excuse with no repercussions whatsoever?

It was in an episode of "House", so it must be true.

kmldc, thanks for sharing your experiences. I don't know if this is too personal, but would your ex back off if you weren't up for sex? How forceful did you have to be? If you just didn't go along with it, because you were alseep or passed out or something, would he stop? What if another woman, for whatever reason, was sleeping near him?

Sexsomnia sounds really dangerous to me. This guy (in the article, not kmldc's boyfriend) raped a 15 year old in his sleep. How will he stop himself from doing that in the future? It's one thing to initiate sex w/ your girlfriend while sleeping, it's another thing to rape teenagers while you're sleeping. He's too dangerous to have around the general population until he's cured, and words cannot describe how angry I am that the court did nothing.

I've never heard of this condition before. Sorry if this is insensitive, but the name "sexsomnia" makes me laugh... it SOUNDS fake, but apparently it isn't.

I agree that if he knew he had this condition, he should have 1) sought treatment and 2) not gone to a fucking *sleepover* until his doctor was comfortable that his condition was cured/managed.

Um ... don't we already have a means to protect people from people who engage in dangerous criminal acts even though those doing the victimizing cannot control themselves? Isn't there something called an insanity plea/ruling?

Presumably if it was sexsomnia, then if it's ending up in rape, the sexsomnia has reached the level of criminal insanity. Of course the perp should be found not guilty by reason of insanity, but can't, in this situation, the defendant be monitored/forced to undergo treatment or whatever?

facts:

• this is a real condition
• it effects people to varying degrees

questions:

• was the man aware of his condition and the risks?
• how severe was his condition?
• to what extent can the condition be treated?
• is the man now being treated?

opinion:
To prevent this condition from becoming a "get out of rape free" card, people with this condition have to take responsibility for preventing incidents like this. However, they can only do so if they know about the condition and its risks, so education and awareness seems to be best way to prevent things like this from happening in the future.

My husband will initiate sex in his sleep and there have been times we've had sex and he won't remember it the next morning. He also talks in his sleep a lot. However, if I don't feel like sex and push him away, he stops. Sometimes it takes a while, mostly because I'm half-asleep and not being really forceful. I can always wake him up if I try.
If this guy slept so deeply he could rape a girl -- I'm assuming she protested somehow -- while asleep, he should have taken some kind of precaution, like not sleeping away from home, not drinking if that exacerbated his condition or something. It's a tricky case and maybe he shouldn't be charged as heavily as someone who knowingly rapes, but he should definately be ordered to undergo treatment and be on probabtion to ensure he doesn't put himself in the position where this could happen again.

In response to your questions, I definitely could have just brushed him off if I wasn't interested and he probably would have rolled over and gone back to sleep (or continued to sleep, as the case may be). The first time I thought he was awake, so I was just like, ok, let's have sex. After that I just thought it was funny. But no, I don't think he would have forced himself on me if I wasn't interested, and if I had been asleep it might have been difficult to make the logistics work - I probably wouldn't have just shoved him off like I do with anything touching me in my sleep. But I agree with other commenters that if you know you have this condition, it's your responsibility to take precautions about who you're sleeping next to. It's been a while since I took criminal law, but I'm pretty sure being unconscious removes culpability for an act, even if it is rape, unfortunately. There have to be some cases out there about sleepwalking or some suchlike. However, he could be criminally negligent if he knew of his condition and didn't do anything to prevent the rape. I know my ex would probably not be sleeping next to 15 year olds, for many reasons, but also because he wouldn't want anything like that to happen.

Law Fairy: That's because it sounds like sexlexia (a very sexy learning disability...)

Though it is a real condition, and I think ed's suggestions of how to deal with it are quite reasonable.

Believe it or not, there have been actual cases where people sleepwalking have killed other people, then gotten away with it in court. Check out this article:

http://www.newscientist.com/article.ns?id=dn6540

I love how he was asleep, so raping a fifteen year old doesn't count. Never mind what this poor girl's been through, never mind that she will never be the same, and never mind that she was underage. He was asleep. Doesn't count.

I hope the girl's family takes him to civil court. At least that way maybe they can get some kind of restitution. Asleep or not, he caused harm and that needs to be acknowledged.

"Sexsomnia"? Are you fucking kidding me?? Does he also suffer from Zapp Brannigan's sexy learning disorder, Sexlexia??

I recently read somewhere that Great Britian's rape conviction was hovering around 5.5%. If juries are swallowing this tripe, it's hard not to see why.

wtf. seriously, wtf. sometimes i feel like i must have died and ended up in high-fiving fratboy hell. like right now. i can hear the echo of the "yeah, brah" dude laugh in my head.

"Never mind what this poor girl's been through, never mind that she will never be the same, and never mind that she was underage. He was asleep. Doesn't count."

Well... yeah. The point of criminal penalties is to punish people for intentionally committed wrongs, not just to make somebody suffer for an innocent person's pain, regardless of actual culpability. If he's lying about his condition, he should rot in prison. If the condition is real, but his history with it should have given him reason to think he might be at risk of doing something like this, he still deserves punishment, though possibly less severe. But aren't these all facts the jury and appeals courts are in a better position to evaluate than we are?

Uh, people pay for so-called unintentional crimes all the time. Negligence is one example. Or if a man (awake) sleeps with an underage girl who he thought was old enough. He's still guilty of committing a crime. If someone sticks something in their pocket for a moment at a store and then legitimately forgets to take it out again, they're still guilty of shoplifting.

The crime was committed. The girl was raped. The man raped her. Those are facts, and they matter.

Yes, people can be responsible for negligence, which involves a failure of responsibility. Which is why I said that if the condition is legitimate but he had reason to know this was a real risk, given his history, he should still be punished. But note that, for instance, criminally negligent homicide (unintended killing resulting from the failure to take reasonable and responsible precautions) is not the same crime as murder. And negligence still requires a finding that the person should have known enough to act in a different way, but failed to. So the two questions, which we don't know the answer to, remain: Does he really have this condition, and did he have reason to think it might manifest in such an extreme way, making his staying over negligent? Those are also facts, and they also matter. Don't they?

I've never heard of sexsomnia in any of my psychology classes (and I've taken many). The APA doesn't seem to even know what it is, as the query yields no results on their site. If it is something, it's nothing but a label and not a legitimate disorder.

Anyone claiming to have had sex or killed anyone while sleepwalking is lying. Sleepwalkers move quite lazily. Since it takes plenty of effort to stab with a knife, shoot a gun, and have sex, I don't think someone who is sleepwalking or moving at all in the late stages of sleep can kill or have sex in their sleep.

During REM (dream) sleep, blood rushes to the genitals, causing an erection in males. However, it is almost impossible to even move a little while dreaming. Unless the dream is very intense, we won't move anything below the neck while dreaming. Even then, we would only twitch like a dog or cat does while they dream. A very rare disorder in which someone can physically act out their dreams, doing things they couldn't do while awake, is alomst exclusive to men over 70.

So this guy convinced a jury of his peers that he was able to maintain an erection and do some complex movements during deep sleep. Bull. Shit.

Julian, negligence was one example I gave. There were also other examples of unintentional crime. Call it what you want to, it doesn't matter. It comes down to this:

A crime was committed. The girl was raped. The man raped her. Therefore, he committed the crime.

So if a sleepwalker knocks his air conditioner out a window and crushes a passerby to death, *even if the sleepwalker didn't know he was prone to this behavior*, you endorse the syllogism:

A crime was committed. A person was murdered. The man murdered him. Therefore, he committed the crime.

Maybe the facts don't turn out to be analogous here--though pace FEMily, I find numerous references in peer reviewed psych literature to the condition--but if they are, the logic is pretty transparently faulty and question begging.

First of all, what the hell was this 26 year-old man doing sleeping next to a 15 year-old girl? Second of all (and I am aware that others have raised this question), why would he have put himself in a position where he could potentially harm someone if he knew that he had this condition? He should at the very least be forced to undergo some sort of treatment.

Anyone claiming to have had sex or killed anyone while sleepwalking is lying. Sleepwalkers move quite lazily. Since it takes plenty of effort to stab with a knife, shoot a gun, and have sex, I don't think someone who is sleepwalking or moving at all in the late stages of sleep can kill or have sex in their sleep.

a)Yes this is real. Whether it's endorsed by the APA or not, it's real. I had a boyfriend who would initiate sex in his sleep and when I would wake him up he would lose his erection and have no idea what was going on--an it would sometimes take a lot to wake him.

b)I've sleepwalked before (it's not regular, just in times of extreme stress) and there was nothing gentle and lazy about it. Once I tore the hell out of my bedroom looking for something and another time I was tearing through my house because I thought (?) I was trying to break up a fight. I probably could've done some real damage that time had I not woken up.

Kimmy, you forgot to state the fact that he was asleep during the act. And, as you said, the facts matter.

That fact matters just as much as the fact that he raped her, and it's because of that fact that this isn't a black and white issue. If it were as simple as a man raping a woman, the jury wouldn't have needed two hours, and nobody here would be debating whether or not the jury was correct in their decision.

Julian, if you can't see the difference between knocking something out of a window accidentally that happens to kill someone (which you're equating with murder, although it wouldn't be called such) and rape (which this unquestionably is), then you have serious issues way beyond this topic.

He raped her. He didn't accidentally fall on her. He stuck his penis inside her vagina without her permission. That's rape. Period.

Tibi, your second point sounds more like a night terror than sleepwalking.

Nobody is saying this wasn't rape, Kimmy. Even the guy himself said he was guilty of it. But knee-jerk "Period." type statements don't really give this issue the attention it deserves.

The question here is whether or not a jury should take into account whether or not the rapist was capable of controlling his actions. Or at least preventing them, and at what point criminal negligence comes into play.

It's uncharted and rocky legal grounds, which is why making statements like "It's rape. Period." only serve to drum up an emotional response, as opposed to productive discussion of the laws.

He was asleep, he was awake. She was still raped. She's still in exactly the same position as any woman or girl who's been raped. She suffered the same trauma. She's suffering the same pain. She's going to have the after effects to deal with for the rest of her life.

Why does what she's gone through suddenly cease to matter?

"A crime was committed. The girl was raped. The man raped her. Therefore, he committed the crime."

I don't know how the British system of law works (I think that's where the case took place), but in the U.S. at least rape/sexual assault is not a strict liability crime. It doesn't follow merely from the fact that sex was forced on X by Y that Y raped X (legally at least). It must also be the case that Y had the right mens rea (state of mind). If Y has a reasonable belief that X is consenting to the sex, then Y did not legally rape X.

*Statutory* rape, on the other hand, is a strict liability crime. If X and Y have consensual sex and X is 14 and Y is 25, Y has committed statutory rape. And it doesn't matter if Y reasonably believed that X was 18 or not. No mens rea is required in the statutory case.

If we assume for the sake of argument that this guy is being honest about the sexsomnia, then it just isn't true in the legal sense that he raped the girl. Of course that's a huge *IF*--he very well might have found an ingenious defense and got one over on the jury.

And even if he is being totally honest, if he knew about his condition and he could have reasonably forseen the possibility that he might unknowingly force sex upon a sleeping partner, then there certainly seems like there's room for a negligence conviction. But that still wouldn't be rape--that would be a criminal negligence charge, which I'm guessing they didn't even charge him with hence there was no chance of him being convicted of it.

I never said it wasn't rape, and I never once said that her rape was somehow less important and less impacting than any other rape. Please don't imply that I am diminishing the crime here- that's such a gross insult, I feel literally sucker-punched at the thought.

I have no interest in discussing this with somebody who cannot see shades of gray, particularly when it comes to the law, where things are never quite so black and white. I'm done with this discussion, because I have a feeling it will just continue with you trying to insinuate I'm diminishing her rape by questioning the case surrounding it. Gross.

"He was asleep, he was awakeShe was still raped. She's still in exactly the same position as any woman or girl who's been raped. She suffered the same trauma. She's suffering the same pain. She's going to have the after effects to deal with for the rest of her life."

It DOES still matter. No one has said it doesn't. The man even confessed his guilt. This is still a pretty complicated case and one where you can't use black and white, 100% guilty or innocent statements. It's not as if throwing this guy in prison is going to ease the pain and trauma the girl is experiencing, which is what you seem to be implying/advocating. You're right, she IS going to deal with it the rest of her life...whether he goes unpunished, goes to prison or is stoned to death.
I'm not saying that he should completely unpunished, especially if he was fully aware of his condition- why the hell would he go to a sleepover? It's just more complicated than your standard case.

Julian, your analogy sucks. A better analogy would be a sleepwalker randomly stabbing a person to death who had the nerve to sleep in the same building as the sleepwalker. But, oh! What if the sleepwalker didn't know he could do that! Oh! What was the "alleged stabbing victim" doing in the sleepwalker's house? Oh, it must be so bad to be that sleepwalker. Let's not try to punish him or give him treatment because that would be so hard on him. He really didn't mean it. Oh, what about anyone else who happens to be around him while he's sleeping in the future? What? Oh the poor sleepwalker...

Assuming this guy is telling the truth, I think the jury did the right thing by letting him off.

If this was truly and entirely unintentional, I just don't see it as being the same-- on his part, not on hers-- as, say, lurking in a dark corner with a gun, or slipping a roofie into someone's drink, with the intention to rape.

It is terrible for the victim, but as I understand it the purpose of punishment is to punish the offender, not to avenge the victim.

Of course, this is all based on the very shaky assumption that we should believe everything he says. I'm not sure I do. But-- and again, I'm no law expert-- I think you're supposed to be sure beyond the shadow of reasonable doubt that the defendant is guilty before you convict him. I don't know how compelling the evidence was on either side, but in general I would err on the side of lenience.

I do definitely agree that now that he knows it can happen, he should take precautions to make sure he's not raping anyone else.

Found a link about this condition from 5 years ago: http://www.sciencedaily.com/releases/2002/03/020327072432.htm

To Kimmy and anyone else that thinks that this is a clear cut case of rape, consider this: the condition has been observed in both men and women. If you argue that someone with this condition is fully responsible for their actions, then you have to argue that women with this condition are able to consent to sex while asleep. That seems like a dangerous point of view.

But, like I said before, this condition shouldn't be a get out of rape free card.

Ed, I would argue that anyone who initiates sex with another unwilling human being, asleep or not, is guilty of rape. Male or female, doesn't matter.

And I just love the attitudes here.

"That bastard raped me!"
"Oh, no, honey, it's okay, he says he didn't mean to."
"Oh, okay. Tra la la la la la la."

marle-
Who said ANYTHING about not requiring treatment, or at least forbidding any future "sleepovers" until he gets some? Those are utterly different questions. But that's precisely the point: IF someone has a genuine medical condition (as someone else said, a big IF, but suppose) such that they are not responsible for their actions, we usually think the correct response is, in fact, treatment rather than punishment. I'd say exactly the same thing about our hypothetical stabbing sleepwalker. Do all the people taking the rape-is-rape-period line here believe mentally ill people who commit crimes must always be treated exactly like any other criminal, because intention and conscious responsibility just don't matter?

Janeish, I agree that this is different than someone intentionally planning on raping someone, but he should have been found not guilty by reason of insanity, and then put in a mental institute until the doctors could be reasonably sure he will not rape any other woman who happens to be near him while he's sleeping.

Ed, you bring up an interesting point about consent while sleeping. In a sense, people with "sexsomnia" aren't consenting, either. But the difference (between them and people who are raped in their sleep) is that they are the actors. A person who falls asleep while driving doesn't consent to run into a tree or over a pedestrian, but they're still responsible.

And those who talked about not putting someone away in order to avenge their victim...

There's a reason that we refer to getting justice on behalf of a murder victim. Because we are, on their behalf, trying to punish the person who hurt them. Whatever you think the perfect justice system would be, ours is at least partly punitive.

What this means is that this girl has been raped, and will get no justice.

And it doesn't matter if Y reasonably believed that X was 18 or not.

Way OT, but I never got this one.

Suppose a 23 year old is partying at a club and hooks up with a fellow partier, who happened to be underage and to have got into the party using a fake ID. Meanwhile, for comparison, the club has hired an undocumented worker who also uses a fake ID to avoid detection.

Now who gets punished how: the 23 year old is somehow expected to have realized that, even though his/her hook-up mate managed to slip into an over 21 club with a fake ID, s/he was sleeping with a 17 year old? He gets imprisoned as a sex offender. Maybe in the fall-out the bouncer looses his job, maybe not. But meanwhile, everyone'll accept "I couldn't tell the ID was faked and the Soc. Sec. number stolen" excuse from the night-club owner ...

How is a 23 year old party goer expected to be a better judge of a fake ID than a bouncer or especially a business owner with more resources for judging such things?

Julian,

Who said ANYTHING about not requiring treatment

The article says that he knew he had problems with "sleepwalking" and apparently his girlfriend is at least somewhat aware of his condition. I think this is enough that this could have been criminal negligence. At the very least, I think forced treatment is the bare minimum here. As Kimmy notes, there was a VICTIM here, and she was HARMED. The point of the law is to prevent harm as much as possible -- therefore, in order to prevent this man from harming another human being, he should be given a choice of confinement or closely monitored treatment until his condition is cured or managed.

Letting him off, however, is NOT an option, and as I noted it sounds like he acted with reckless disregard for others, so I think he probably actually did commit some sort of crime here for which he ought to be culpable. But -- AMAZING -- the jury disagrees with me.

Also -- what the FUCK kind of sleepover do both a 15-year-old and a 26-year-old attend????? I'm 26, and if I went to a plain old party, let alone a sleepover, and saw a 15-year-old kid there, I'd assume s/he was there with parents, or that I'd walked into the wrong party and I'd better leave unless I wanted to be made an involuntary chaperone. I *don't* hang out with 15-year-old children for shits and giggles. Because, um, I'm an adult. I mean, dude.

Tibi, your second point sounds more like a night terror than sleepwalking.

It was sleep walking. I don't remember getting out of bed, but I remember being in my hallway, kind of, and thinking that there was a fight going on in one of the bedrooms, but I didn't recognize the room as a bedroom. A fight had broken out between two men and I was the only one around to break it up and everyone else was screaming and yelling. I went to turn the handle, but the handle was all wrong, it was a door knob instead of a door handle, and when I walked into the room it was dark when I thought it should be light. I made it halfway across the room ready to knock some sense into the two guys fighting when I woke up enough to think, "Where the fuck am I?" and then I realized I was in my daughter's room and it was her who was screaming and I was getting ready to come out swinging. It still scares the absolute bejeesus out of me that I could've hit her or hurt her because of something I thought or dreamed was going on. I mean I was right by her crib before I figured out what was happening. Doing shit in your sleep in terrifying and you seriously have no control.

I admit I don't know enough about this to say whether or not its a "real condition", but if it IS - he needs treatment. NOW. If not, he'll do it again and again because he literally has no control. He needs to live in a medical facility and be treated with hypnosis, therapy and medicine until women can feel safe around him again.

DAS, interesting hypothetical, but I don't think it fits. A better hypothetical would be if someone you randomly met at a bar and slept with gave you herpes. Getting herpes is like strict liability -- you can have excuses and reasons up the wazoo, but in the end you're stuck with what you've done, period.

Unfair? Probably. But frankly I think people ought to be more careful about who they sleep with anyway. No, that's not me being prudish, that's me (having had a scare once) being terrified at the thought of contracting an incurable STD from someone I barely know (not that it would be much better to get it from someone I know -- but I'd kick myself in the head for getting it from a one-night stand).

I love this idea:

Could one use the same excuse to beat the living daylights out of this creep?

No your honor, I do not recall ripping this perv’s face into bloody bits, I suffer from a condition called “whoopassomia� and cannot be held responsible . . . .

This condition does exist- I also have an ex who used to try to have sex in his sleep, and sometimes he would get downright angry when I said no (or went to sleep on the couch). In the morning, I'd tell him what happened and he'd be so embarrassed and ashamed. At the time, neither of us realized that it was an actual condition.

I don't think I have enough information (or legalese background) to make an opinion of this case either way. Did the guy get a court-appointed medical evaluation to determine that he actually does have a sleeping disorder?

TLF asked the same thing I was wondering when I read this: why the hell is a 26-year-old sleeping next to a 15-year-old at a birthday party?

"Also -- what the FUCK kind of sleepover do both a 15-year-old and a 26-year-old attend????? "

When I was 14 and hung out with my older cousins, Mom and Dad insisted that my little brother be included too.

I heard that some parents take it even further. For example, dropping off the 3-year-old too when the 8-year-old's invited to a classmate's 8th birthday party. Maybe the 15-year-old has a 24-year-old sibling who still lives with their parents and isn't allowed to attend adult parties without bringing the teen?

Maybe the 15-year-old has a 24-year-old sibling who still lives with their parents and isn't allowed to attend adult parties without bringing the teen?

Well... if the parents are that strict when the person's *24* -- I doubt they are the kind of parents who would approve of a co-ed sleepover in the first place.

"Maybe the 15-year-old has a 24-year-old sibling who still lives with their parents and isn't allowed to attend adult parties without bringing the teen?

"Well... if the parents are that strict when the person's *24* -- I doubt they are the kind of parents who would approve of a co-ed sleepover in the first place."

Stranger things have happened. I guess it's not impossible for someone to be strict about family togetherness and not strict about sexuality.

june, FEMily!, Danyell:

This condition is definitely real, my boyfriend suffers from it. Sometimes he wakes me up by fondling a breast or trying to take my underwear off (it's fairly amusing - he's very uncoordinated when he's asleep). But, if I just shake his shoulder a little he will roll over and drop into a deeper sleep.

It happened on one of our very first overnights and it scared the hell out of me. He had to work to regain my trust. Now it's not a big deal at all.

I don't care if it's a real condition or not. If I have narcolepsy...or epilepsy (as that is a bit more common, I have a few friends who are epileptic) and I am not treating my condition, and I get into a car, have a seizure and kill someone, I bear the responsibility. I'm not going to be up for murder one by any means, but negligent manslaughter for sure. It's the same as if you drink and drive. You don't have to intend to hurt anyone to be responsible for harm inflicted. I'm sure that this condition would be distressing, but that's why you seek treatment and/or avoid dangerous situations. He didn't have to sleep over. He didn't need to be asleep next to a female person. And he didn't have to be next to an underage female person. He is culpable, for these actions at the very least. For negligence at the very least.

And in case anybody didn't know (and I'm not being snotty; there are a fair few people who really don't seem to understand what rape is), intent is not what makes rape, rape. Lack of consent/intercourse against one's will is what makes it rape.

Ed, I would argue that anyone who initiates sex with another unwilling human being, asleep or not, is guilty of rape. Male or female, doesn't matter.

My husband will initiate sex in his sleep and there have been times we've had sex and he won't remember it the next morning.

This poster, while awake, had sex with her sleeping husband. People who are asleep cannot consent to sex. Therefore, she committed rape.

I'm not saying this in order to actually accuse the previous poster of rape. But we are talking about two issues: volition and consent. The issues surrounding this case are actually fairly ambiguous.

-- ACS

I would not have sex with my boyfriend if I thought he was asleep. It seems wrong. I'd be angry if he had sex with me when I was asleep, so we don't run into the problem of consent.

kissmypineapple said: And in case anybody didn't know (and I'm not being snotty; there are a fair few people who really don't seem to understand what rape is), intent is not what makes rape, rape. Lack of consent/intercourse against one's will is what makes it rape.

Here we go again--we're running into the usual muddle between moral rape and legal rape. Rape has two different definitions and unless you clarify which one you're using, the conversation goes south fast. Let's head it off.

Moral rape has few limits. If the woman doesn't want it, it's rape. Even if she's silent--still rape. Even if he thinks she wants to have sex--still rape. What he thinks is irrelevant--only what he does is relevant. moral rape is therefore much more "obvious" because there's a lot less to consider in making the decision. This was CLEARLY moral rape. kissmypineapple is defining moral rape, though em doesn't call it that.

Legal rape, OTOH, is a subset of moral rape. Not all moral rape is legal rape. Legal rape is trickier. It takes his thoughts into account. In that respect, it's a bit like the difference between murder and manslaughter: did the defendant have the frame of mind required to be found guilty.

And on the legal side, this is, as Andreas notes, actually sort of ambiguous.

That does NOT mean it's OK. It's really a failure of the law. In order to make the law simple enough to work, and in order to avoid convicting people who are actually innocent (among other reasons) we occasionally end up with "holy shit, this makes no sense" moments. And this is one of them. Although the unfortunate reality is that it is impossible to avoid these things happening occasionally, it doesn't make it any better when they happen.

Rape has two different definitions and unless you clarify which one you're using, the conversation goes south fast.

I was trying to make that distinction, with the negligence example, but apparently didn't do it very well. I included the part at the end, because there seem to be some people who either truly don't understand the concept of rape (outside the legal definition), or are willfully ignorant of what actions constitute the actual act of rape (not the legal definition of rape.) The legal definition of rape fails many people seeking justice, and varies from state to state. In Indiana (where I'm from), they define rape as occurring between members of the opposite sex. So apparently, a man can rape a man, but it won't legally be rape.

In Indiana (where I'm from), they define rape as occurring between members of the opposite sex. So apparently, a man can rape a man, but it won't legally be rape.

Wow. That is seriously, seriously fucked up.

Here's the thing: the article didn't say anything about trying him for negligence, nor did it say anything except the fact that the man was cleared of rape. The court may decide to force him to seek treatment if they try him for a different crime, but we don't know enough facts to really render any fair judgement in this case. The court seems convinced that he truly has this disorder, which fellow posters have been kind enough to document and corroborate, but the thing is we don't even know if he knew he had the problem. His girlfriend said he had tried to initiate sex while asleep before, but we don't know if she told him of his actions or brushed him off. He only knew he was prone to sleep-walking, which may not even be enough to prove negligence. It's a terrible shame that this girl was raped, and nobody is diminishing the crime, but throwing a mentally ill man in jail for a crime he didn't willingly commit isn't justice. Rehabilitation is always better than simple castigation, especially when a simple treatment could be to simply avoid sleeping in the same room as another woman. People are judging this man without all the facts, and it's truly sad, because I haven't heard a single word about how the guy might actually feel about this. His body committed a crime, but according to a court of law his mind did not, and it seems pretty clear he doesn't feel good about what he did either. I doubt he's thinking "wow, I totally got to score in my sleep". Probably more along the lines of "I may have ruined someone's life in my sleep". Nobody's diminishing the crime of rape by acquitting this man. Was he criminally negligent? Maybe. Is he guilty of rape? In the literal sense, maybe, but in the legal sense, no. This isn't a black and white issue, in fact it's about as gray an area as there can possibly be.

I just have such a hard time buying this.

My husband walks, talks, operates doors and lightswitches, negotiates stairs with ease, and does many other things in his sleep, including make passes at me.

Here's the crucial thing, though: When my husband is asleep, he is both startlingly and hilariously suggestible. He does what he's told. When sufficiently startled, he wakes up.

So, how did this guy get through an entire rape without being woken up or brushed off? I'm not buying his story.

but throwing a mentally ill man in jail for a crime he didn't willingly commit isn't justice

While a fine distinction, and understandably irrelevant to most of you, parasomnias are typically considered neurologic conditions, not psychiatric conditions. Thus, the phrase "mentally ill" does not apply medically or in any legal sense. And as good feminists, we all should be well aware of the power of language.

Granted, the distinction between neurologic and psychiatric conditions is rapidly deteriorating, and the enlightened physicians a hundred years from now may see no reason to separate the two. But for now, our best understanding do demand important distinctions. Even the first cases of sexual parasomnias were described in a psychiatry journal, not a neurology journal. That means little, except to further confuse the issue.

Laws concerning patients with epilepsy and narcolepsy vary from state to state, but that's the case law that would be relevant here. The typical principles that arise in forensic psychiatry center around the ability to comprehend right and wrong at the time of the act. Assuming the defendant actually suffers from this parasomnia, that aspect does not seem in question in a sleeping perpetrator.

In my first year of law school, my criminal law prof (female) found the whole idea of sexsomnia/rape fascinating from a legal standpoint, and discussed it repeatedly in class. She used it as her favorite example of "mens rea," meaning "guilty mind," as a requirement for most crimes. If a person is asleep, how can they be aware that their actions are wrong? Reading this article, I think she must have heard about this particular case.

I've got to say I agree with Akeeyu's skepticism. Not only are sleeping people suggestable, but for chrissake, a few words whispered in their ear changes their entire dream.

The wisdom in this guy's scheme was that by using this crap excuse, he would distract everyone into a "he's sleep raping--does it count?" discussion while totally skipping over the "is he really sleep raping" question. It's downright Rove-vian.

It's almost like we need another category of crime here. There's murder and there's negligent manslaughter. There's rape and negligent rape.

She was raped, yes. He (allegedly) had no idea what he was doing. Negligent rape. Could this apply to people who rape others when they're blackout drunk as well?

But then there's the tricky little issue of people going off to have all the nonconsensual sex they like and claim they weren't with it enough to be guilty of the full charge.

I declare the whole situation fucked up.

ugh! i wanted to comment earlier...but stupid hurricane flossie knocked out our internet for a good while!

this is an unfortunate situation. the poor girl in question is definitely going to have a hard time coping w/ this. rape is a horrible thing! but i am not going to get into a debate on this case after reading a lot of the posts here...it just isn't worth it...

i do think it is important that people realize that this is an actual problem that really affects many people. ( i am in no way defending rape w/ what i am about to say...i would NEVER DO THAT) i have to wonder what is going through this guy's mind!

my boyfriend works a crazy schedule, 12 hour shifts, three on three off, w/ varying crazy hours. needless to say he is often sleep deprived, and his body is stressed out from the lack of a sleep pattern. at the worst of this erratic sleep schedule, when he was most fatigued, he would attempt to initiate sex. being the way we are...i thought nothing odd of it, and welcomed it, not ever noticing that he was asleep! he behaved exactly like he did awake, even talked to me and told me he loved me. the first time it happened, he called me a liar when i brought it up to him. that shortly changed to him feeling humiliated, and even asking me 'what if i had raped you?' (which for us, that wouldn't happen), and at first he wouldn't allow me to sleep over for a few days. he was utterly MORTIFIED by his actions, and never has he remembered ever doing it. i will be damned if i can tell the difference at the time, and it has only happened about five times in two years. (we did, however, find that melatonin, a natural supplement of a hormone we produce to cause sleep, and available OTC helps him sleep and reduces his sleep adventures, so to speak) he does, also, however, sit up in bed at times and have conversations w/ me in the middle of the night. but again, usually when his body is stressed out.

rape is a horrible crime, changing it's victims forever. that is for certain. i am in no way trying to diminish that fact...honestly!

people suffering from sexsomnia are doing just that, they are suffering. they get embarrassed, ashamed, scared, and confused. as you can read in these posts, and on other sites documenting it, their lives are being torn apart by it as well. we (my boyfriend and i) have researched it, and there is even a hospital in minnesota doing an extensive sleep research program on it.

like i said, i am not getting into a discussion here about this case...it would be futile...so i am finished discussing it...but i caution us, as feminists, to not cast our judgement on things we might not understand, or be harsh w/ out knowing all the details.

just because we saw it on 'house' doesn't mean it is made up...

and just because it has a funny name doesn't make it any less serious...

just please be careful when we dismiss something...

I knew there would be more cases like this, and we're going to see even more in the future. In Canada, a man was aquitted of murdering his in-laws (who lived MILES away from him) while sleepwalking. He actually DROVE to their house in order to do it. And the jury believed his claim that he was sleeping the whole time.

Also in Canada, a man was acquitted of raping a woman at a party due to his sexsomnia condition. The two of them were passed out on a couch. He managed to not only remove his own and her clothing, but had the presence of mind to use a condom. But he claims he was sleeping the whole time. Right.

Kissmypineapple made an excellent analogy above. A person with narcolepsy is responsible if he or she kills someone while driving. At the very least, because this guy admits to having sex, he is guilty of statutory rape. The fact that he got off completely scot free is reprehensible and a miscarriage of justice.

I am disturbed by how willing some here seem to throw folks in jail*--and not just the guy in the case but also those who have narcolepsy or experience seizures. It is not true that one is held legally responsible (criminally negligent) if one has a seizure while driving and loses control Iof the car in a way that kills someone.

From wikipedia (bad source I know): "Negligence arises when, on a subjective test, an accused has not actually foreseen the potentially adverse consequences to the planned actions, and has gone ahead, exposing a particular individual or unknown victim to the risk of suffering injury or loss. The accused is a social danger because he or she has endangered the safety of others in circumstances where the reasonable person would have foreseen the injury and taken preventive measures."

It seems clear to me that a person who has never had a seizure before, or who has had some type of seizure-like experience but was not diagnosed as having seizures by a doctor, could not be held criminally negligent if they had a seizure while driving which resulted in someone's death. A reasonable person in those circumstances would not have foreseen the possibility of injury or taken preventive measures. Also, note that a person is only required to refrain from driving for 6 months after experiencing a seizure. Surely there is still some risk of seizures even after 6 months, but the risk is apparently legally deemed small enough that a reasonable person could not be expected to continue to refrain from driving indefinitely as a result of that degree of risk. (Actually I think there is controversy about the driving restrictions and criminal negligence charges related to seizures. After all, there are other medical conditions that have a risk of losing control while driving--history of strokes and heart disease for example--but these folks aren't expected not to drive.)

So about the rape case--I'm assuming for the sake of argument that the guy has a real condition and really was asleep at the time of the rape. Now that may all be true, but criminal negligence surely doesn't automatically follow. To be criminally negligent it would have to be the case that a reasonable person in his circumstances would have foreseen the dangers to others and taken preventitive measures against those dangers. Now we know that he and his girlfriend appeared to know that he initiates sex while asleep. He may have even known that this was a medical condition. Would a reasonable person who knew that they have a medical condition in which they sometimes initiate sex while asleep reasonably foresee that they might rape someone while asleep and therefore undertake preventitive measures to never sleep in the same bed with any other person or seek treatment?

Well, at least 5 different people have said their boyfriends have tried to initiate sex with them while asleep and the boyfriends did not remember the next day. Have any of these men foreseen that they might rape someone and therefore stopped sleeping with the partner or sought treatment? (It sounds like only one such person mentioned here--by ouyangdan--did foresee the possibility of rape but he only stopped sleeping with his partner for a few days.) All of the rest of the men, I gather, continue to sleep with their partners and haven't sought treatment. Are ALL of these men are being unreasonable and hence acting negligently?

It's kind of hard to swallow the idea that all five of these guys are acting unreasonably. (Are people with this disorder just particularly unreasonable or something? I must be unreasonable too then because I sure wouldn't stop sleeping with my girlfriend or go to the doctor and say "I need treatment. I try to initiate sex with my GF while I'm sleeping.") But if these 5 guys aren't acting unreasonably--if a reasonable person would not have stopped sleeping with partners or gone to the doctor--than the guy in the rape case can't be criminally negligent because his actions were within the realm of reasonable.

* I'm also disturbed by people talking about putting this man in a mental institution or him having a mental illness. As another person pointed out this is not a mental illness--it is more analogous to seizures. While I agree that it is important to make sure this guy doesn't do something like this again, any preventative measures the state takes must be narrow. The state cannot just throw a person with seizures in jail or a mental institution. The state cannot even force them to have medical treatment. All the state can do is take away their license (but of course lots of people with seizures still drive even after they lose their license and this risks other people's lives). There isn't anyway to prevent that other than to lock up people with seizures or put them under house arrest or take away their vehicles (though they could always borrow one). But the state does in fact do any of those things to people with seizures because even concerns about public health cannot justify those kinds of rights violations.

Andreas Schou, you're being ridiculous. If a woman is asleep and her husband initiates sex and she decides she's up for it and they sleep together, it's not rape. Whether he's awake or asleep. She consented, and he initiated and completed. If someone sticks his dick in my vagina without any provocation on my part, I think we can reasonably assume that he's responsible for that.

As a matter of fact, that's what my own post was all about. Because he stuck his dick into an unwilling fifteen year old girl, he committed rape. He's responsible for that. Since that's the entire basis for my argument (the person doing the sex act is responsible), your question doesn't even make sense.

You posted my quote, but I don't think you actually understood it, so I'll post it here again with the relevant words in bold.

Ed, I would argue that anyone who initiates sex with another unwilling human being, asleep or not, is guilty of rape. Male or female, doesn't matter.

The situation you quoted, with the wife and the husband (where you said she could be accused of rape by my logic) doesn't meet the standards I suggested at all. Not even close.

Kimmy I don't understand your reasoning. I thought it was obvious to everyone that it is rape to have sex with a person who is asleep--whether or not they initiate an experience.

Suppose Jane has narcolepsy and she initiates sex with Bob. As Jane is taking her panties off she falls asleep. Bob knows that she's asleep but he goes on to have sex with her anyway. According to your standard that is not rape.

You seem to refuse to accept the possibility that someone's body could ever be acting in a way that his/her mind does not control/endorse. Or maybe you just think that the mind just doesn't matter--all that matters is what the body does (hence people with Tourette syndrome are responsible for what they say).

This idea seems ridiculous and goes against the very basis legal system (i.e. mens rea--the guilty mind). Maybe you want to have a different legal system, but I gotta say, the legal system you seem to want scares the hell out of me.

So, how did this guy get through an entire rape without being woken up or brushed off? I'm not buying his story.

He didn't. According to several sources, when she woke up to find him on top of her, she screamed, and he got off of her. It was several minutes after that that he woke up.

What a fucked up case. This definitely sounds like, at the very least, he should have known that he was a potential threat to other people. By his own words he once punched his girlfriend in his sleep, and he knew that he'd had episodes of sexsomnia before.

Regarding the suggestibility of sleeping people, and how easy it is to chase them off: what if the girl's reaction was to totally freeze up in terror? Not talking, not shoving him away, just laying there unmoving in horror and shock (because, presumably, *she* didn't know he was asleep). This is enough women's reaction to being attacked while *they're* sleepy that it's quite plausible that she never fought back or tried to push him away.

Had he been awake (presuming that the "facts" of this case are accurate, and yes, he really was asleep), this wouldn't have made a damn bit of difference -- you don't have the right to have sex with someone who hasn't explicitly said yes just because they didn't say no. But if the guy was initiating sex in his sleep, and the girl froze in terror, he could easily have completed the act without anything impeding him, because his own mind wasn't present to tell him to stop and she didn't attempt to wake him.

Is anyone aware of the issues surrounding the sleep drug Ambien? Apparently Ambien increases the likelihood of sleep behavior to a tremendous degree, so that people are often being found having sleep-driven somewhere (or had accidents, due to,y'know, being asleep while driving) because they were on the drug Ambien. It happened to a congressman, if I recall.

During normal REM sleep, the brain state is actually very, very similar to the waking state, but there is a paralysis that prevents the muscles from acting out the dream. Remove that paralysis (which happens normally in some people, and which drugs such as Ambien facilitate), and the person is quite capable of having sex, physically assaulting someone, or getting in a car and going somewhere, without any conscious control over their actions. I have heard about sleep sex, and even sleep rape, before -- years ago it was in the news that some men physically assault or rape their partners in their sleep, and therefore cannot sleep in the same beds as their wives. Given the existence of sleep driving, I find this plausible.

So. A 15-year-old girl was traumatized, but throwing a man in jail for a crime he had no control over committing doesn't magically make her trauma go away. You can only punish people for crimes they committed mindfully or neglectfully, crimes they could reasonably have prevented themselves from committing. The whole deal with drunk driving and other crimes committed while drunk is that if you choose to drink, you put yourself in that state; I suspect pretty strongly that if a woman were charged with driving drunk and she could prove that in fact her boyfriend spiked her non-alcoholic drink, and so she didn't choose to drink and couldn't have reasonably guessed that she was drunk before she got behind the wheel, she'd get off. Legally, a crime must have a conscious perpetrator who could have reasonably chosen not to engage in the behavior that led to the crime, in reasonable awareness that doing so could or would lead to a crime. We all gotta sleep, and I don't think even most people who have sex in their sleep think they could rape someone that way.

So if it's true that he was asleep, then they did the right thing. I find the story plausible, and I don't think justice is served by ruining a person's life for a crime they could not consciously control, nor is the victim helped any by doing so. However, I do think this guy needs to never, ever fall asleep next to a woman without warning her that he might try to have sex with her in his sleep, and if he ever does it again, *then* it's legally rape. Now that he is reasonably aware that sleeping next to a woman could lead to him committing the crime of rape, if he ever does it again he should be charged and convicted.

activistgradgal, WHAT?? I said no such thing! I said that the person who initiated the sex is responsible for themselves doing so. If they initiate with an unwilling party (and yes, someone who's gone to sleep is unwilling, unless you want to argue that both partners have this condition), then it's rape. At what point did I say it was okay to initiate sex with a sleeping person?? In the scenerio we're discussing here, the sleeping person was the initiator?

Jeez, can you people not read, or what?

Also, what I want is a legal system where rape victims get justice. That apparently seems odd to you, but it sounds perfectly normal to me. People with Tourette's don't harm other people. However, people who harm other people should be held responsible for what they do, and prevented from doing it again. Whether that's mandated medical treatment or whatever. He doesn't have a right to continue to expose people to this kind of danger, and he doesn't have the right to walk away from raping a fifteen year old girl consequence free.

A fifteen year old girl was raped. To me, that deserves having something happen. But I guess that makes me some kind of evil person, huh?

When does he finally cross the line and get held legally responsible? When he has sex with a twelve year old girl? When he beats someone up?

The fact remains that he DID have prior knowledge of his condition. He did nothing to mitigate the damage he would cause. He needs to be held legally liable for that.

Kimmy,

Maybe I'm not understanding your position, which is why I brought up the Jane/Bob example. So my question is this: In the case I gave in which Jane (awake) initiates sex with Bob (awake) and then Jane falls asleep and Bob penetrates Jane and Jane's body (already aroused from their foreplay) reacts in the usual arousal-plateau-orgasm way--did Bob rape Jane? Yes or No. And why?

I think the answer is obviously yes and the reason is because Jane was asleep and could not consent. It is rape to knowingly have sex with someone who is unable to consent (and who likely would not consent if they could) even if they were able to consent at the beginning of the sexual encounter (unless they explicitly gave consent to the person having sex with them after they lost the ability to consent--kind of like medical directives saying what to do if one becomes mentally incapacitated). And it doesn't matter how much or how little Jane's body took part in the sex act. Her mind was not in control of her body and hence the actions of her body were not her actions.

I'm curious, though, as to the basis on which you could say that Bob raped Jane (assuming that you think Jane was raped.) It can't be merely because Jane is asleep since you obviously think that what our bodies do when we are asleep are our responsibility whether or not our mind was in control. It can't be a matter of initiation because Jane was the initiator.

So was Jane raped and why?

I don't think you are evil, and I understand your concern for the poor girl. (And I do believe that she was indeed raped. But legally the question is not whether she was raped, but whether he committed rape.) but I do think that a legal system that holds our bodies responsible for what they do when we are asleep, unconscious, insane, drugged, having a Tourette outburst, moving on reflex, would be evil because that would not be justice. (Note that children with Tourette Syndrome likely often break the rules against profanity in school. Do you support their being punished the same as a child who chooses to say "fuck"? I sure as heck don't--because they cannot control saying "fuck" while the other child can. That is the distinction that you are ignoring.) That would be holding us responsible for things that we obviously cannot control.

I do agree that he should not be out there putting other girls at risk. Given he now knows about his medical problem he'd better take reasonable precautions and he definitely should be held legally responsible if he doesn't (same as a person who knows about their seizure condition and doesn't take reasonable precautions should be held responsible). But that is a very, very different thing than saying what he did this time was (legally) rape.

(And of course, it's quite possible he's full of shit and he doesn't have the condition at all--but I'm ignoring that possibility for the sake of argument.)

Again, the Tourette's thing is irrelevent. Saying fuck causes no harm. Please stop bringing it up.

I've already said that initiating sex with someone who is asleep is rape. I've said it several times. However, if a person is claiming to have initiated sex themselves while they themselves were asleep, then you can't claim that they as the initiators were raped. Starting foreplay and then falling asleep is not the same as initiating sex in your sleep. Having your vagina remain lubricated after falling asleep is not the same as sticking your dick into another human being. The fact that you seem to feel the need to both ignore statements I've made several times and to conflate circumstances which are patently not the same says to me that you're not really trying to understand me here at all.

And according to everything we've already heard about this guy, he already knew about his "condition." Didn't stop him then, won't stop him in the future. The courts have told him that it's perfectly okay for him to rape fifteen year old girls. Yay for the justice system you seem to think works so well.

"The fact remains that he DID have prior knowledge of his condition. He did nothing to mitigate the damage he would cause. He needs to be held legally liable for that."

Are you arguing that any reasonable person who knows that they have a condition in which they initiate sex in their sleep would foresee that they might very well rape someone and would therefore have taken preventitive measures (I suppose never sleeping next to anyone or arming sleeping partners with weapons)? This is the standard of criminal negligence.

If find it very hard to believe that this is what a reasonable person would do. In the last few years as my grandfather has gotten sicker and more weak from heart problems he began having dreams in which he was thrashing and punching and a few times he punched my grandmother (not too hard, but more than a friendly kidding kind of punch). Everyone in the family was told about this. None of us suggested that they sleep separately or arm my grandmother lest he try to kill her or seriously injure her. No one suggested he seek medical treatment. Was my entire family of 15 people just being completely unreasonable and negligent in not foreseeing that he might seriously injure/kill her?

If a man knows he has a history of initiating sex while sleeping, it stands to reason that he would expect that at some point in the future he would initiate sex while sleeping. And if he is, say, sleeping next to a fifteen year old girl, it stands to reason that he might expect that he could initiate sex while sleeping. So the answer there is not to sleep next to anyone who doesn't want him initiating sex with them. How fucking difficult is this to understand? It's not rocket science people.

Kimmy: However, if a person is claiming to have initiated sex themselves while they themselves were asleep, then you can't claim that they as the initiators were raped.

I'm not very clear on why, though. If a man and woman fall asleep near each other, and the woman suffers from sexsomnia, and she ends up getting undressed in her sleep and tries to get into bed with the man, you're saying that it's perfectly okay for him to have sex with her, even if he's got no reason to believe she'd want to have sex with him if she were awake? What if she's a sleep talker, and she says "take my money, I don't care" or something like that? Isn't part of having sex consent? While the body might be responding appropriately, isn't a really important part of the whole thing the informed and active consent? How can a sleeping person reasonably be said to have consented?

Kimmy it sounds like you are just ignoring my questions.

So you are saying Tourettes is irrelevant because it is okay to hold people responsible for things they can't control when those things harm others, but not when those things merely offend others? (The point of bringing up Tourette's is merely to show that we all acknowledge it is ridiculous and unjust to hold people responsible and punish them for things they can't control--whether or not it offends or harms people.)

Okay so you think there's some difference between foreplay and actual penetration (given I sleep with women and "foreplay" is the whole shebang for me, I'm not seeing a difference), so change the Jane situation. She initiates sex while awake and takes Bob's penis and sticks it in her vagina. Then she falls asleep. Bob (knowing that she has fallen asleep due to her narcolepsy and knowing that she probably wouldn't want him to have sex with her body while she's asleep) keeps pumping away. Now was she raped or not? I say she was still raped, and the reason she was raped is because she was asleep and one cannot consent or be held responsible for what they do when they are asleep. If I didn't think that was true, then I would be unable to see in what sense Jane was raped.

In any case, I don't understand why one's vagina lubricating and contracting is any different than putting one's penis in a vagina. Either one was in control of that action or one wasn't. If one wasn't in control of it, then it is unjust to hold one responsible for it and punish them for it. It seems like you just refuse to acknowledge this point. So can you please elaborate--under what conditions is it okay to hold people responsible for things that they have no control over?

I'm not saying the justice system we have always or even usually works well. I am saying that a justice system that holds us responsible for things that are clearly and obviously not under our control is unjust. I'm actually astounded that anyone would think otherwise.

In trying to find some more information about this case, I got a few more details via several UK papers that are easily found via Google.

This wasn't a child's sleepover party; everyone had been out drinking at the pubs and all crashed on a friend's floor. Several people were sharing inflatable mattresses on the dining room floor...this appears to be where the rape occurred.

Also, there are some strange details here and there about whether these two are related...they may be cousins or the girl may be his niece. Most of the regular news articles don't reference this as the girl's anonymity is shielded by law. So I have no idea if this is correct.

Again, what line does he have to cross before he is required to mitigate his damage by seeking treatment?

"So you are saying Tourettes is irrelevant because it is okay to hold people responsible for things they can't control when those things harm others, but not when those things merely offend others?"

She's saying it's irrevelant because there is no criminal law against swearing or about being offended by profanity. Being raped is *slightly* different than hearing someone cursing on the street.

Okay, look. I'm going to take this to the most basic place possible. People are responsible for causing harm to others. If you have caused harm to another human being, you bear at least some responsibility and must be treated as such.

I don't care if you're male or female. I don't care if you're young or old. And I don't care if you're asleep or awake. If you cause harm to another human being, you bear responsibility for this.

If you're not causing harm, I don't give a flying flip what you do with your spare time. Knock yourself out.

Jane fell asleep after the sex began. Her partner knows she won't want him to continue. It's rape.

Jane climbs on top of a man in her sleep. If all he knows is that there is a naked woman initiating sex with him, placing his penis into her vagina, then he is reasonable in making the assumption that she wants to sleep with him.

If Jane were to climb on top of a man who didn't want to have sex with her, and for some reason he couldn't stop her, that would be rape, whether Jane was awake or asleep.

This man raped a fifteen year old girl. You seem to be advocating that absolutely nothing be done about this. That causes me issues.

People are responsible for the harm they cause. You can nitpick between an ethical, moral, or legal responsibility as you like, I don't much give a damn. There is a raped girl here who's getting no justice, and there is a rapist who's walking around secure in the knowledge that he can rape anyone he wants as long as he contrives to fall asleep next to them first. That pisses me off. It doesn't seem to matter much to you. You're more interested in concocting every possible permutation of sleep and sex that might ever occur than you are in whether or not this traumatized young girl gets justice.

And while I know her trauma won't disappear because he's jailed, you can't tell me she wouldn't prefer to know he'd been punished for his act rather than not.

He was not possessed by spirits. He was not controled by aliens. He was not somebody's puppet by hypnosis. He raped a fifteen year old girl. Whatever the circumstances, at least some of the responsibility for that (a great deal, by my thinking, since he knew the danger) lies with him and he should be treated accordingly.

This really isn't as complicated as you folks seem to want to make it out to be.

Actually, there are criminal laws here in Michigan against swearing or using profane language in front of women or children.

I must be unreasonable too then because I sure wouldn't stop sleeping with my girlfriend or go to the doctor and say "I need treatment. I try to initiate sex with my GF while I'm sleeping."

If you wouldn't seek treatment or try to prevent yourself from potentially harming others then yes, you are unreasonable. It appears this man knew he had a condition in which he did things involuntarily while asleep. Frankly, it doesn't even matter *what* things -- if you know you are prone to undertake any kind of serious physical action while you are sleeping, the appropriate thing is to seek treatment, period. It would be UNreasonable for him to assume that his condition would not act up at a *sleepover* at which *children* were present. I mean... leaving aside the fact that it's horrifically creepy that he was sleeping next to a fifteen-year-old child, he KNEW he had a tendency to initiate sex while asleep. He apparently opted not to seek treatment for this, and nonetheless exposed others to whatever sleep problems might arise. He acted with reckless disregard for the bodily integrity of others. He was absolutely criminally negligent.

You're incorrect that there are no laws holding people culpable for things they do while sleeping/drugged/etc. If I get behind the wheel of a car feeling tired, and I fall asleep and hit and kill someone, I am guilty at least of negligent manslaughter (or something similar, depending on the jurisdiction) because I *should have known* that driving a car in my condition would be dangerous. This is precisely what drunk-driving laws are predicated on. There are people who may drive home with a BAC of .23% and manage to do it without hurting or killing anyone or damaging any property. That doesn't make what they did legal, and it doesn't suddenly make it reasonable for them to have driven. Granted, they won't be convicted of *murder* because they were acting only *negligently*, but they cannot escape the consequences of their criminal negligence.

As for your grandfather, if your grandmother wanted to bring charges against him for sharing a bed with her I strongly suspect she could, and that she would prevail in at least getting a restraining order directing him not to sleep with her. But she won't do that because she is willing to take the risk of getting punched or kicked at night in order to share a bed with her husband. If she wants to take that risk, and if she waives her right to press charges against him, fine. But that doesn't mean that what he is doing, and by extension what anyone with this condition is doing, is automatically okay. It is okay by virtue of 1) her knowledge of his condition and 2) her consent to risk being subject to it. I wonder if this guy told the 15-year-old he slept next to "hey, just so you know, I sometimes initiate sex in my sleep. So if you sleep next to me, I might have sex with you. So, if you're okay with that, cool, but if not, let me know and I'll sleep somewhere else"??? I *really* doubt it. And anyway, she couldn't have consented because, again, she's a *child*.

There's a clear case of liability here, and he should at least be ordered to place himself under the care of a doctor until that doctor deems him no longer a danger to others.

"This condition does exist- I also have an ex who used to try to have sex in his sleep, and sometimes he would get downright angry when I said no (or went to sleep on the couch). In the morning, I'd tell him what happened and he'd be so embarrassed and ashamed."

I'm tempted to call bullshit on some of these stories. Or at the very least, /question/ them. I do stuff late at night all the time that I don't remember the next morning -it's not exactly the same as being asleep though. I used to be with this guy who often tried to initiate sex in the middle of the night. And I told him a few times "dude I'm really tired and I need to sleep" but he kept doing it anyway. I just don't think he really cared. I wouldn't be surprised if a few guys at least don't just say they must have been sleeping, especially if they were tired and can't remember.

I think the answer is obviously yes and the reason is because Jane was asleep and could not consent. - activistgradgal

What if Jane said during foreplay "my narcolepsy's acting up, so I might fall asleep. Don't take it personally ... anyway, so long as I'm still wet and responding, feel free to continue even if I'm fast sleep"? Would it still be rape? Can she pre-consent like this?

If a man and woman fall asleep near each other, and the woman suffers from sexsomnia, and she ends up getting undressed in her sleep and tries to get into bed with the man, you're saying that it's perfectly okay for him to have sex with her, even if he's got no reason to believe she'd want to have sex with him if she were awake? - roymacIII

Something doesn't make sense here. Supposing she does this and he doesn't want to have sex with her. Then by the arguments of the "rape is rape whether the initiator is conscious or not" crowd, she raped him. Is the argument "well, of course he wants it" or "well, he could have thrown her off if she didn't want it"? In which case, that's awful sexist not to mention I thought it was rape if you don't consent, whether or not you fight back.

But if she initiates sex and he does want it, he's guilty of rape because she's asleep? What happens if neither wants sex? Are both guilty of rape?

I guess though, this isn't too unreasonable ... e.g., if a 15 year old and a 26 year old have sex (fully conscious, etc), then the 26 year old is guilty of (statutory) rape. But if the 15 year old rapes the 26 year old, then the 26 year old is obviously not guilty. So of course, as the point was raised above, just because you are not capable of consent doesn't make you incapable of rape. Still, there is something a little unsettling about roymacIII's example because of the "what happens if neither wanted the sex" case.

"I'm tempted to call bullshit on some of these stories. "

I'm call B.S. on your attempt to call B.S.

One time I was sleeping soundly in bed with my gf. In the middle of the night I woke up and she was on top of me and we were having sex. I was like wtf? and told her I was too tired to have sex.

She seemed pretty confused and then she explained to me that I had pulled her on top of me and she thought that we were up for some naughty times.

Apparently I was asleep but still performing for 5-10 minutes before I woke up! I had absolutely no clue what was going on.

p.s. no, I did not charge her with rape.

It's clear to me that someone needs to invent some sort of special PJ pants for this guy that sound an alarm when he gets erect.

Kidding.

Say he went around stealing people's purses while asleep. Would he not be responsible then? It's simple, sometimes intent doesn't matter; consequences count more.

Let's assume that the guy is telling the truth because otherwise there isn't really much to debate about.

A) It's clearly not rape, just as unintentionally killing someone is not murder. That doesn't mean it isn't a crime or that someone wasn't harmed.

B) I think you have to put yourself in both people's shoes. First, the experience for the girl must have been horrifying. It is important to minimize the likelihood that anything like that would ever happen again.

C) Second, think about how horrible the guy must have felt after unintentionally hurting this poor girl. I think we would all feel sick if we unintentionally hurt someone like that. This is quite different than someone who willfully tried to hurt someone.

D) Should he be punished? I think yes, because punishment could help deter future sexsomniac attacks. But surely this is quite different than a typical case of assault and thus should be treated differently.

If someone assaulted me because they had a seizure, this is very different than if someone had assaulted me intentionally, even if I sustained the same injuries. It's harder to hold someone responsible for their actions when they don't have complete control over their actions.

"Say he went around stealing people's purses while asleep. Would he not be responsible then? It's simple, sometimes intent doesn't matter; consequences count more."

That's a good point. If someone stole purses in their sleep, we wouldn't even dream of putting them in jail.

In contrast, if someone stole purses purposely, we would think he/she is horrible and throw them in jail.

I read an article recently that has said that there has been a terrific rise in the number of sleep study institutions around the world. The major reason a lot of these have appeared is because sleep experts are increasingly being called as expert witnesses in cases like these-it appears common that people can complete whole activities within their sleeping hours, as in their awake hours

Say he went around stealing people's purses while asleep. Would he not be responsible then? It's simple, sometimes intent doesn't matter; consequences count more. - Elaine Vigneault

Of course he's responsible -- in the sense that he would be obligated to return the purses, with all their content, and, if that's not possible, e.g., because of damage occuring when he did this while sleeping, make restitution.

Would he be criminally liable? No. .... as UCLAbodyimage points out ... unless of course he had done something like this before and showd a criminal degree of negligeance and/or reckless disregard for his condition such that he could be accused of "negligent larceny".

A case is a little bit more complicated as there really is not way he can simply return the girl to her pre-assaulted state like our purse snatcher could return the purses. But still, I think the principle in terms of criminal law is the same ... he's not guilty of rape, but, if he knew he had this condition and didn't take precautions that a reasonable person would take, he's guilty of "criminally negligent sexual assault".

There are really three levels of response:

1) Nothing happens to him

2) He has to make some kind of restitution

3) The government brings him up on criminal charges.

#3 is pretty tricky, and would require a pretty serious reevaluation of our whole criminal system w/r/t intent to harm. Let's ignore that for a moment.

#1 seems odd. Just like the purse snatcher example: you may not have meant to steal the purse, but you don't get to keep it.

#2 seems fairly reasonable. You may not think it was his "fault" because he was asleep. But one thing is damn clear: it sure as hell wasn't her fault.

What type of restitution would be appropriate here? Obviously he can't "fix" it. But it would seem reasonable at the least to have him liable for medical expenses/therapy expenses.

Any other ideas?

Hi,
I'm British and recently went through a rape trial as I was the victim of a rape whilst I slept. I awoke half way through the attack.
Firstly, I want to point out that in Britain a man is not guilty of statutory rape if he can prove it was reasonable for him to believe the girl was over 16.
Secondly I'd like to point out that the trial would end in a simple guilty or not guilty (consent or no consent) and the sentencing would then be passed based on a statement taken from the witness by the police to explain to some degree how the attack has affected her. The "different degrees of rape" crap lies in the hands of the judge, based on said statement. Just to clear up.
I'm really saddened that nobody has even questioned what the girl's testimony was like. Conviction rates here are extremely low. Jury's hands are tied. If they can't say "beyond reasonable doubt" that the victim was definitely raped by the man, they cannot convict. Even if they feel sure he did it.
This means in Britain we basically look at one person's word against anothers. The woman never wins. But we can have an insight into the truth by looking into her testimony. I'd be interested to hear what she had to say (a girl probably with no interest in having an innocent man locked up) rather than what a man may be saying to protect himself from years in prison and remain in denial.
Otherwise we cannot judge.