Sexsomnia on trial: The naked truth
Lady Justice is an allegorical personification of the moral force in judicial systems. // Photo courtesy of Tingey Injury Law Firm on Unsplash.
This story is part two in the Nightmare Series.
A 19th-century legend tells the tale of the Truth and the Lie. One beautiful day, the Lie convinced the Truth to bathe in a well together. Although suspicious, the Truth agreed. The Lie was the first out of the well and got dressed in Truth’s clothes. The Truth ran naked after the Lie. The world turned its gaze away in contempt and rage, refusing to see the naked truth.
Sexsomnia falls under a category of parasomnias that occur predominantly during non-rapid eye movement (NREM) sleep. An individual with sexsomnia will exhibit sexual behaviors while unconscious. It can range from masturbation, vocalizations and fondling, all the way up to penetrative intercourse, and the individual will have little to no recollection of the sexual event after waking up, according to Brian A. Sharpless, a United States-based licensed clinical psychologist and visiting research fellow at Goldsmiths, University of London.
“To the general public that sounds crazy, right? How could you have sex while you're sleeping? How could you engage in such an effortful, complicated activity such as sex while you're unconscious?” Sharpless said. “In what we know about sleep disorders, the stages of sleep and wakefulness are not completely separate. They can bleed into each other in unusual ways.”
Several cases have come to the attention of law enforcement in the U.S., Canada and the United Kingdom where people have been charged with sexual assault and try to use sexsomnia as a defense. If they truly have sexsomnia, they would not consciously be aware they are committing a crime, according to Sharpless.
“It leads to a really interesting dilemma for the courts,” Sharpless said. “Assuming it is a legitimate sleep disorder and they're not responsible for their actions, how do you determine that versus a very savvy rapist?”
A search of Nexis Uni found 19 cases throughout the U.S. ranging from the early 2000s to the present, where defendants charged with sexual assault attempted to use sexsomnia as a defense.
In two of the cases, the defendants alleged that the complaining witness had sexsomnia instead of themselves. Many defendants appealed their guilty verdicts. In eight out of the 19 cases, defendants filed motions appealing their convictions claiming that their trial counsel was deficient in providing an effective sexsomnia defense by failing to have a sleep disorder expert testify.
So far, none of the convictions have been overturned, but one of the eight cases is ongoing.
George Fay, the son of a prominent British barrister, was sentenced to 10 years in prison in 2018 and is currently incarcerated at Wallkill Correctional Facility.
On July 8, 2016, Fay met his childhood friends Jack Slye and Don Sobell in New York City. They went back to the apartment Fay was staying at for the summer and consumed alcohol. Later that night, they went to a bar called Le Poisson Rouge (LPR). Slye posted on Snapchat that he was in New York earlier that night, and S.D., the complainant, whom Slye had met at university and had a sexual relationship with, responded to his post and made plans to meet up with him, according to Slye’s testimony.
Once S.D. arrived at LPR, Slye obtained the apartment keys from Fay and the two left together. They took a taxi to the apartment, had sexual intercourse in the bed Fay slept in and fell asleep after, according to Slye and S.D.'s testimonies.
The next thing S.D. remembered, according to her testimony, was the feeling of something put in her mouth and someone’s hand behind her head, while feeling “confused” and like she was “dreaming.”
“When I realized it wasn’t a dream is when I felt someone put their—they’re having sex with me, and that’s when I really was awake, and when I opened my eyes I thought it was Jack, who else would it have been, and I looked and I saw his face and I realized it wasn’t Jack. And I looked to my left and Jack was sleeping and that’s when I realized what was happening and I jumped out,” S.D. said in her testimony.
Around 3 a.m., Fay and Sobell left LPR and took an Uber back to the apartment. Fay asked Troy Queen, the doorman, to ask Slye to open the door via the intercom, but there was no answer. Fay had to get a spare key from Queen because Slye also didn’t answer the door when the two tried knocking. Once in the apartment, Fay and Sobell attempted to awaken Slye and ask why he didn’t open the door, but neither he nor S.D. woke up, according to Fay’s testimony.
Fay and Sobell went to the living room to watch television and smoke marijuana. After about 10 minutes, they decided to go to sleep. Fay went back to his room and got into his bed, sandwiching S.D. between the two men. Fay claimed that S.D. pulled his arm to her chest, Fay kissed her shoulder and the two started kissing. The encounter became heated and they performed oral sex on each other, eventually leading to consensual intercourse, according to Fay’s testimony.
After about a minute of having sex, Fay claimed her demeanor changed and she asked him to leave. S.D.’s testimony was not consistent with Fay’s. She alleged that she was in a deep sleep and did not consent to sexual engagement.
After S.D. became conscious and Fay vacated the room, she woke Slye up and was distraught. They left the apartment sometime after 5 a.m. and the doorman called the police. Fay was arrested and S.D. was taken to a hospital where a rape kit was collected.
Throughout the pre-trial, trial and sentencing proceedings, Fay was represented by retained counsel Daniel Bibb. In a pre-trial hearing on Jan. 8, 2018, Bibb asserted his intentions to call four to five witnesses but did not name them. Close to two-thirds of the way through the prosecution’s case, Sara Sullivan, the assistant district attorney, claimed she wasn’t given the CV of Michael Thorpy, one of the experts Bibb wanted to call.
Thorpy is the director of the Sleep-Wake Disorders Center at Montefiore and a professor of neurology at the Albert Einstein College of Medicine, and is an expert on sleep disorders; however, Bibb wanted him to testify about "the pharmacological effects that alcohol can have on sleep and behavior,” according to the legal documents in Fay’s appeal.
Sullivan moved to preclude Thorpy’s testimony asserting that she wasn’t given proper notice, and because Thorpy is an expert on sleep disorders, can’t testify to the pharmacological effects of alcohol.
Thorpy’s testimony was precluded by the court, leading Bibb to change the defense strategy. Fay was later found guilty by a jury.
Defendants appealing their rape convictions claim their Sixth Amendment rights were violated. // Infographic by Megan Naftali/In Sheer Magazine. Information from Constitution Annotated.
In Fay’s direct appeal, he was initially represented by Mark M. Baker of the Baker Law Firm For Criminal Appeals, PLLC. They argued that the preclusion of Thorpy’s testimony violated Fay’s Sixth Amendment right to present a defense. At the end of April of this year, Baker referred Fay to Joel B. Rudin, named partner at the Law Offices of Joel B. Rudin, P.C., who took over as council.
Rudin’s firm is claiming Bibb ineffectively represented Fay by introducing Thorpy late in the trial and failed to use the sexsomnia defense. They want to use Thorpy’s testimony to convey that S.D. was undergoing an episode of sexsomnia.
Thorpy’s testimony “would have supported the theory that S.D., experiencing sexsomnia, honestly perceived herself to be asleep but acted in such a way that Fay honestly perceived her to be awake, thus negating Fay’s mens rea,” wrote Jacob Loup, an associate at the Law Offices of Joel B. Rudin, P.C., in a letter filed last month.
Thorpy never saw S.D. professionally. His testimony was conjecture based on his review of the court documents. Renee M. Sorrentino, the medical director at the Institution for Sexual Wellness, assistant professor in psychiatry at Harvard Medical School and co-author of “Forensic Evaluation of Sexsomnia,” suggests that an expert can only testify generally in a scenario like this.
“The expert cannot opine about the individual, but can testify about the topic of sexsomnia, what it is, how to diagnose it, etc.,” Sorrentino said. “This is commonly done and referred to as a forensic expert hired to educate the trier of fact on a subject matter.”
On Dec. 8, Paul A. Engelmayer, the district judge, responded to the letter Loup submitted last month.
“The Court is actively reviewing the Reports—and the parties’ filings in response thereto, including Fay’s objections—and expects to issue a decision in the coming weeks. The Court does not invite further submissions,” Engelmayer wrote.
Although it is more common for defendants in criminal sexual assault cases to claim they are the ones who have sexsomnia, there have been a few other cases where an expert asserted the complainant has the sleep disorder.
In 2020, Jade McCrossen-Nethercott's rape case was dropped in the U.K. by the Crown Prosecution Service (CPS) because two sleep experts said it’s possible that she experienced sexsomnia and seemed to be conscious and consenting, according to the BBC.
CPS admitted they were wrong not to take her case to trial, but have not provided her with anything more than an admittance of guilt.
McCrossen-Nethercott is in the process of suing CPS, as she is dedicated to advocating for women’s rights and improving rape prosecutions, according to her X, formerly known as Twitter, account.
Whether a defendant tries to use the sexsomnia defense to prove they or the complainant have sexsomnia, raises ethical questions. Looking past the idea that some people may be lying about a sexsomnia diagnosis to get out of rape charges, if someone has sexsomnia, who is at fault?
On one hand, if the complainant is diagnosed after professionally seeing an expert and undergoing sleep studies, can you fault the person they were intimate with if they seem conscious and consenting?
Consequently, can you fault someone for committing a crime they were not aware they were committing? The answer depends on whether the crime needs mens rea, the intention or knowledge of wrongdoing that constitutes part of a crime, according to Theodor Liebmann, the executive director of the Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra University Law School.
“For any crime where you need mens rea, where you need that intent, and you don’t have it, then you have not committed a crime,” Liebmann said.
Sexsomnia is a real sleep disorder. As more people attempt to appeal criminal sexual conduct convictions using a sexsomnia defense, you are left to wonder: Is it the naked truth, or do they more closely resemble the Lie trying to get away in Truth’s clothing?
