When the act of sexual intercourse occurs with one party asleep, this is rape.
For some women, waking up being penetrated is not an embarrassing event to be put down to experience but a frightening example of “sleep rape”. Choosing to report the matter to the police immediately rather than keep quiet can make the difference to a successful prosecution of the perpetrator but will require stoicism in court when undergoing cross examination as to why and how she ended up in bed with the defendant in the first place.
Recently the Wake Up to Rape online survey conducted by the Haven Rape Centre in London found that more than one in 10 people were unsure whether they would report being raped to the police, and two per cent said they would definitely not do so. The main reasons were being too embarrassed or ashamed (55%), wanting to forget it had happened (41%) and not wanting to go to court (38%).
For any offence of rape committed after 1st May 2004 the prosecution must prove, beyond a reasonable doubt, that the defendant penetrated the vagina, anus or mouth of the complainant without consent and when he did not reasonably believe that there was consent taking into account what steps a defendant took to ensure there was consent.
If the complainant was asleep or otherwise unconscious then the jury can be directed that there is a rebuttable presumption that there was no consent, and there will be little scope for successfully defending a charge of rape for a defendant who took no steps to ensure the complainant was awake.
A successful prosecution for “sleep rape” requires the jury to be sure that the woman was in fact asleep not that she was conscious but simply does not clearly recollect what happened. It is on such issues that a defence barrister is entitled to cross question. The complainant will have to tell the jury what happened after she went to bed and deal with how obvious it would have been to the defendant that she was asleep.
The advantage of a swift complaint to the police allows for the collection of vital scientific or medical evidence which can sometimes support the allegation. This requires the victim to give her account to the police as clearly as possible, commonly now recorded on video capturing her distress. It is upon the recording that she will be cross examined in court some months later, so it needs to be truthful and accurate. She will also have to undergo a medical examination when samples and swabs are taken and injuries (if any) noted. The most useful results are achieved when the medical examination takes place as soon as possible after the alleged event.
The discovery of semen inside a victim can identify the perpetrator and can also assist in proving rape as it can be inferred that he used his penis rather than another part of his body where the victim is vague about events as a result of being asleep when penetration took place.
Complications can arise in a criminal trial where drink is involved. The medical examination can include a blood sample which can be analysed for alcohol content as can the blood of the defendant if he is apprehended quickly. Where a woman is asleep after drinking, she is still unconscious and not consenting, but at the same time drink can affect the reliability of witness evidence and prevent a jury reaching a conclusion as to whether the allegation is an accurate account of what took place.
In January 2010 at Lincoln Crown Court, Premeslav Broszt was convicted of raping a woman when she was asleep. He was sentenced to five years imprisonment and placed on the sex offenders register indefinitely.
Eye witness evidence of sexual intercourse is rare, but in this case some of the party-goers were able to give an account of what they had seen during the evening and the defendant’s suspicious conduct after the event.
Conversely for a defendant with a history of parasomnia (sleep walking) rape could be an unjust accusation and a frightening one to face. According to Wikipedia, parasomnias are a category of sleep disorders that involve abnormal and unnatural movements, behaviours, emotions, perceptions, and dreams that occur while falling asleep, sleeping, between sleep stages, or during arousal from sleep. Some parasomnias (sleep-walking, night-terrors, and confusional arousal) are common during childhood but decrease in frequency with increasing age. They can be triggered in certain individuals by alcohol, sleep deprivation, physical activity, emotional stress, depression, medications, or a fevered illness.
Accused somnambulists can commonly suffer from such conditions and at present there is no law which requires a defendant to notify a bedfellow of the risks although a failure to do so might be evidence that the defence has less merit. Sexual behaviour in sleep has become known as “sleep sex” or “sexomnia”. It is not, of itself, a defence to rape but where medical evidence supports the assertion that sexual acts took place whilst the defendant was asleep, (medical diagnosis is NREM Arousal Parasomnia – Sexual Behaviour in Sleep) then the defence of automatism will need to be considered.
Any criminal act must be voluntary in the sense that it is the product of the will of the defendant. If the defendant acted involuntarily in an automatic state, this is a complete defence. In a parasomnia case the judge will have to carefully sum up expert opinion and potentially the effect of intoxication on the defendant’s state of mind as well as witness reliability.
In separate cases across the world, at Leicester and in Australia, defendants were acquitted of rape where they successfully raised the defence of automatism on the basis that they had penetrated a woman whilst asleep. Both men had a documented history of sleep walking. The Leicester defendant apologised the moment he awoke. These cases can be distinguished from a deliberate act of rape on a sleeping woman.
Success often depends on expert opinion. The question of automatism has been raised in cases as far back as Bratty v Attorney-General for Northern Ireland  AC 386 where the defendant suggested he was sleep walking or otherwise acting involuntarily as a result of epilepsy or a diabetic attack. If there is an evidential basis (supported by expert opinion) for leaving a question of automatism to the jury, it is for the prosecution to negative that defence by proving (beyond a reasonable doubt) that the defendant acted voluntarily when fully conscious.
However, most commonly in ‘sleep rape’ cases, defendants assert that the complainant was awake and consenting. In 2009 at Crown Court Mr. A.S. was acquitted of ‘sleep rape’ despite admitting he had groped the breast of a young woman when she was asleep. He said that she woke up after the grope then enthusiastically participated in sexual intercourse. Despite the lack of logic in this suggestion, the complainant had been drinking that evening and whilst juries never give reasons for their verdict, one imagines that the jury in that case could not be sure that she was unconscious or perhaps concluded that she had mistaken the defendant for someone else in whom she had apparently expressed an interest earlier in the evening.
Ultimately a rape trial, just like any other criminal trial depends on the jury’s assessment of evidence presented – from the alleged victim, any other witnesses including experts, as well as taking in to account the defendant’s explanation.
© Felicity Gerry 2011, 36 Bedford Row
(a version of this was originally published by in-house Chambers, October 2010)