Sexsomnia and the use of it as an objection in rape cases


Daniel Gobraeel
sexsomnia, couple holding hands in bed.

It has become more common to use sexsomnia as a defense in rape cases in Sweden. Sexsomnia is a scientifically established and recognized variant of sleepwalking. It simply means that the person with sexsomnia engages in involuntary and uncontrolled sexual acts during sleep. To be able to convict someone in a rape case, they have to have been aware of their actions. This means that people who perform uncontrolled movements and actions during their sleep cannot be convicted by law. Another way of looking at it from a criminal law perspective is that the perpetrator lacked intent for the deed. Since intent is a requirement in rape cases, it becomes more difficult to convict when words stand against words.

It becomes even more complicated when current research establishes that individuals can engage in uncontrolled sexual movements and behaviors due to sexsomnia. For example, people with sexsomnia have been able to engage in masturbation, sexual touching and even penetrative intercourse with others without being aware of what they’re doing. It’s during the so-called non-rapid eye movement stage of sleep that these actions usually take place. People with sexsomnia have shown that they’re completely unaware of the sexual acts they perform. And that they completely or partially lack memories of this when they have woken up. This is because there is a partial awakening in the brain. The person sleeps to some extent, but the brain doesn’t store any memories.

Difficult to disprove the lack of intent

Since Swedish law requires a person to have intent in order to be convicted of a sexual crime, it’s up to the prosecutor to prove that the sexual act was committed while awake. However, the prosecutor only needs to prove that objections from the accused are unfounded. When it comes to sexsomnia, prosecutors in several legal cases have used sleep scientists to determine whether the perpetrator could have committed unconscious sexual acts in their sleep.

It’s important to remember that a conviction is difficult to obtain if the perpetrator tends to sleepwalk. For instance if the person showed such tendencies at an early age. Or if the person has previously woken up confused and with memory gaps. And the difficult thing for the prosecutor here is to try and disprove the existence of sexsomnia after the fact.

Sexsomnia complicates for victims of sex crimes

Since there are no Supreme Court cases in Sweden to use as guidance where sexsomnia has been used as an objection, these types of cases are complicated to handle. This risks worsening the victims experience of the crime and the process thereafter. There’s also a risk that potential sex offenders could use sexsomnia as a loophole very early in a criminal process. In addition, there are clear flaws when the court can objectively come to the conclusion that a crime took place, but at the same time can’t sentence the perpetrator to punishment simply because it hasn’t been possible to prove that they had intent. In the end, this mainly affects the victim who doesn’t get justice for the crime they’ve been a subject to.

What can you do if you’re a victim?

If you’ve been the victim of a sexual crime, it’s important to report it, no matter how painful and difficult it may feel. It’s important partly to try and get the perpetrator convicted and because part of preventing sexual crimes is to minimize hidden statistics within sexual crimes. If you’re a victim and need help or advice from a lawyer, you can always turn to Kliently. Get in touch with us through the Kliently app. The app will give you access to Swedish lawyers at any time, wherever you are.

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