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Spotlight on sexsomnia defence

|Written By Robert Todd

The psychiatric profession’s inability to give clear answers in matters involving sleep disorders - as in the recent Ontario Court of Appeal case involving a “sexsomnia” defence - has created a “zero-sum game,” a criminal law scholar tells Law Times.

“The psychiatric profession is highly confused about the place of sleep disorders in the larger area of mental disorder,” says Osgoode Hall Law School Prof. Alan Young, who is also director of the school’s Innocence Project.

The issue of how the law should deal with such cases has been in the spotlight after the appeal court’s decision to uphold the acquittal of Jan Luedecke on a sexual assault charge, based partly on a psychiatry professor’s testimony that during the incident he was suffering from a condition known as “sexsomnia.”

A provincial court acquitted Luedecke in 2005, with a finding that the Crown was unable to prove criminal intent. On Feb. 7 the court reserved its decision on whether Luedecke should be found not criminally responsible due to mental disorder and forced to appear in front of the Ontario Review Board.

“The bottom line is that the understanding of sleep disorders is completely contingent on the current state of psychiatric knowledge, which is very deficient,” says Young.

He refers to the 1992 R. v. Parks case, in which a man drove 23 kilometres and stabbed his parents-in-law, killing one. The Supreme Court of Canada upheld the acquittal in the case, as psychiatrists found that during the incident the man was sleepwalking, which is not considered a mental disorder. A lack of sleep and stress were among the external factors to which the man’s sleepwalking was attributed.

But, Young notes that in 1991 in Britain, psychiatrists in the Burgess case said sleepwalking was a mental disorder, the same as schizophrenia or depression. The accused in that case was found not guilty by reason of insanity.

Young says a similar scenario played out with the recent sexsomnia case.

“You basically have the same problem,” he says. “You have a person who has disturbed sleep patterns that has a recognized sleep disorder that you would go to a sleep disorder clinic for.

“But we haven’t quite reached the stage of entering all of these disorders into the diagnostic manual. So there’s still these hybrid disorders that aren’t quite considered psychiatric disorders and no one’s sure what they are.”

Young notes the law is clear that if harm was triggered by external factors, an acquittal follows.

What the court has yet to decide, however, is whether Luedecke’s actions were caused by internal factors, which brings into force s. 16 provisions allowing acquittal, with the state maintaining social control by possible institutionalization.

“We just don’t know where sleep disorders fit into this,” says Young.

This scenario, unfortunately, creates a “zero-sum game,” he adds. “It’s either acquittal because it’s non-mental disorder, involuntariness, or it’s psychiatric institutionalization.”

Young says that, in light of this dichotomy, mental-disorder law must be reconsidered.

“As we start to see crazier and crazier disorders, for lack of a better description, we don’t really have a good legal approach to dealing with psychiatric evidence that’s still at a highly disputed level. And that’s the problem - the law needs some certainty in the evidence, and the psychiatric profession can’t provide it, so we’re kind of stumbling in the dark.”

In July of 2003, Luedecke was at a croquet party in Toronto and spent the previous night driving to a friend’s cottage, where he drank alcohol and consumed beverages, according to court documents. On the night of the croquet party, he drank eight to 12 beers, and several mixed drinks, and later fell asleep on a couch with the female complainant in the matter.

The woman woke up to find Luedecke having sexual relations with her, according to court documents. Luedecke’s lawyer Frank Addario argued that his client was sleepwalking when the incident happened.

“The trial judge found that he was not a danger, and the considerations that might lead you to go from automatism to [not criminally responsible due to medical disorder] were not present in this case,” says Addario.

He adds that concerns of sexsomnia becoming a frequent defence are unfounded, as it would require significant evidentiary showing.

“Because there have been such a small number of sleep disorder cases which were successful, and because none of them involved sexsomnia, therefore the court could infer that the likelihood that the floodgates would open if it recognized it in this particular case on these specific facts was small,” he says.

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