"I don't remember raping her"

by Guest Blogger // 12 April 2012, 08:38

Tags: rape, sexsomnia, sexual violence against women, somnambulism

This is a guest post by Elin Weiss & Hennie Weiss

TRIGGER WARNING: This post discusses sexual violence against women and we want to warn readers that its content might be upsetting and disturbing.

Image - 'Somnambulism' by VisualAge [Creative Commons]

A Swedish man is currently on trial for unknowingly raping a woman while sleeping. According to the man himself he was asleep during the rape since he suffers from two quite unusual sleeping disorders: somnambulism and sexsomnia.

According to a news article, the rape victim was intoxicated to the point of being more or less unconscious until she woke up during the rape. The man and the woman slept in the same bed during a summer trip. The man supposedly has no memory of the event and claims that he woke up when the woman pushed him off her. Apparently, the man said that he has been in this type of situation before, since a former girlfriend of his had told him that he engaged in sex with her while he was asleep.

Sexsomnia is a rare medical disorder that is characterised by sexual behaviour while the person is asleep. Somnambulism basically means sleepwalking. This diagnosis is also very rare in adults (approximately 5 percent of children suffer from somnambulism while it is even less common in adults).

There are also a number of other cases in which accused rapists have claimed to suffer from the same sleeping disorder. In 2007, a 38-year-old man was freed from accusations of raping an 8-year-old child since he claimed that he was asleep and did not know what he was doing. The court believed the man and stated that they could not rule out the possibility that the man dreamt that he was engaging in sexual intercourse with his wife. Also, in 2011, a second man was freed from similar charges, despite a previous conviction.

The rationale behind not charging these men for their assaults is reminiscent of other attitudes and opinions that diminish the perpetrator's personal responsibility and the act of rape. Stating that the adult man perhaps dreamt that he was engaging in sex with his wife is a strange reasoning behind not charging the man for committing rape. What about the 8-year-old child? If it is true that these men do not remember or were not awake during the sexual assault, does this mean that they are not responsible for their actions? Being asleep or not remembering committing rape does not mean that these women and the child were not raped. The victims still had to suffer through the physical act of rape as well as the mental and emotional trauma that accompanies rape. The men discussed above did not deny the fact that they engaged in non-consensual sex with their victims, but stated that they were not aware, did not remember, and therefore should not be held accountable for their actions. These men use their disorders as a scapegoat for their sexual behaviour. Rape, whether or not the person remembers raping the victim, is rape.

It seems as if the whole justice system has failed these women and the child on so many levels. First, by not establishing the suffering of the victims. Second, by not punishing the perpetrators. Third, by not establishing any form of retribution or justice for the victims. Fourth, by indirectly stating that that the perpetrators were not at fault.

Sometimes, people that have engaged in criminal behaviour and are found to suffer from a medical disorder are given treatment of some type. It does not seem however that this type of treatment was given to these individuals, or demanded by the court system. The possibility of treatment (for a claimed or real disorder) should not however exclude charging the perpetrators for the crime they committed. As noted, we believe that the justice system has failed to respond to the rape victims, and that treatment should be mandatory for the perpetrators. But it is also important to acknowledge the personal responsibility of the perpetrators. If these men (as the man who is currently being charged with the possibility of rape) know of their behaviour would they not warn the women that they are in contact with? Would they not avoid any situations where their sexual behaviour might become a problem? A medical condition or disorder does not exclude personal responsibility.

These men have a responsibility to protect and inform women who decide to engage in sex with them, or who decide to simply sleep next to them. They also have a responsibility to avoid or keep away from any situation in which children are present if they cannot control their sexual behaviour. Sexsomnia might be embarrassing for the person suffering from it but men's violence against women, whether they are awake during the sexual assault or not, is their responsibility. Individuals suffering from sexsomnia should be held accountable for their actions, because the victims are going to have to live with the consequences of rape for the rest of their lives.

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Elin Weiss has a Master's degree in Women's Studies. Hennie Weiss is currently pursuing a Master's degree in Sociology. Their interests include feminism, gender, the sexualisation of women and the portrayal of women in media.

The image Somnambulism is from VisualAge's Flickr photostream and is used under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic license.

Comments From You

Aosher // Posted 12 April 2012 at 09:20

I find this post massively frustrating. For a start, the authors seem to be completely oblivious to the legal concept of mens rea, and they should really take the time to read up on that before making statements like "a medical condition or disorder does not exclude personal responsibility."

There is centuries of case law in this field, not just establishing the principle of mens rea, but also, going back far enough, examples of where a lack of understanding of mens rea has been used to persecute the disabled and afflicted for crimes that they would have had no knowledge of, no intention of committing and no means of preventing.

Sleep disorders may not seem like a massive deal to those who don't suffer from them, but they are a form of disability and they can be devastatingly traumatic to those who suffer from them. Dismissing these conditions as "embarrassing for the person suffering from [them]" borders on ablism. While I am explicitly and emphatically not trying to claim that there is an equivalence with the state of being a victim of rape, it is nonetheless the case that those with medical conditions are victims of their condition. The law can, and must, distinguish between crimes committed knowingly, and actions performed as a result of non-insane automatism.

The law does not exist to punish, it exists to prevent and rehabilitate. In the case of those who were not in control of their faculties due to a disorder beyond their control, neither prevention nor rehabilitation through incarceration and criminal record is possible. The author alludes to the fact that treatment for perpetrators in these cases is lacking; this is true, and massively problematic. Where possible, treatment should be provided and enforced. But treating people who lack the ability to control their actions as criminals harkens back to the dark ages of law.

The Goldfish // Posted 12 April 2012 at 12:20

"If it is true that these men do not remember or were not awake during the sexual assault, does this mean that they are not responsible for their actions?"

Yes. These kinds of sleep disorders are very rare, but there have been occasions where people have killed their loved-ones in their sleep. They cannot be found guilty of murder.

Obviously, a person who has good reason to think they are likely to be violent or sexual towards others in their sleep needs to take steps to protect anyone sleeping near them. But the extremeness of these sleep disorders can make them extremely difficult to predict - people can behave in an extreme fashion the very first time they sleep walk, and they can behave completely differently from one occasion to the next.

"Being asleep or not remembering committing rape does not mean that these women and the child were not raped."

No, it doesn't, but there are times (very very occasionally) when crimes are committed when the perpetrators are genuinely not in their right mind or not aware of those actions - if another conscious adult had willingly engaged with them in this state, knowing that they were asleep, they would have been raping the sleeper.

It is absolutely right that their victims' trauma should be acknowledged - they did experience rape - but you can't punish someone for causing that trauma and physical damage if they weren't behaving consciously. In the same way, if a driver fails to stop at a red light and runs you over, you've been run over. But if the driver is experiencing a seizure at the time, there's simply no-one to punish.

Christina // Posted 12 April 2012 at 12:52

"For a start, the authors seem to be completely oblivious to the legal concept of mens rea"

Speaking as a lawyer, albeit not one from a common law jurisdiction, I don't find your objection convincing. "Sorry, my body has a habit of raping people against my will" is not an adequate refutation of mens rea. This is especially true in the first case mentioned, where the man in question apparently knew of his condition and yet did nothing to restrain himself while sleeping or warn the woman with whom he was sharing a bed.

At the very least this person is guilty of recklessness or criminal negligence.

Rose // Posted 12 April 2012 at 15:19

There is clearly an issue of public protection here.

If I'm going to sleep in the same room as someone, I warn them that I sometimes sleep talk. If I could forsee acting in a sexual manner towards them while we were both asleep- I would not sleep in the same room as them. Even claiming that it's not concsiously done, does not escape it being 'forseeable' behaviour.

I find it strange that a man can claim that he thought/dreamt he was having sex with his wife, when he was raping someone, of different shape and size, and location (I'm guessing), if he restained or showed any violence to his victim (common in rape), then was he dreaming of raping his wife?

Crashing out after gigs, I used to have a real problem with busy handed 'friends', who when challenged would claim to have been doing it in their sleep -and making it socially differcult for me to complain about their behaviour. Using the excuse to silence me. I've never believed a single one of them, and I don't think they ever expected me to either, the excuse was just a tool for control.

If you think that you are a danger to others, the weight should fall on you, not your next victim.

Kirsten // Posted 12 April 2012 at 17:16

I don't understand how anyone could argue "I must have been dreaming I was having sex with my wife" when our bodies don't move when we're dreaming. When we're dreaming, we're paralysed, to prevent us acting out our dreams. Unless they're arguing that sexsomnia also overcomes the paralysis mechanism. Are they?

Charlie Glickman // Posted 12 April 2012 at 18:14

While the issue of mens rea is relevant for the first time, given that the guy knew that this is something that happens (giving him the benefit of the doubt), he had a responsibility to tell her that this was a possibility when they decided to sleep in the same bed. By not giving her full information, he made it impossible for her to give informed consent. So even if his claims of somnambulism and sexsomnia are truthful, he chose to not take responsibility. And that is a problem, even if he wasn't aware of what was happening at the time.

Shadow // Posted 12 April 2012 at 19:27

I am certain that women who suffer from the disorder kleptomania would not be accorded such treatment by a UK court of law. Instead the woman would undoubtedly be told 'you knew you suffer from kleptomania and yet you did not take steps to ensure you did not steal these items.'

In fact the law does exist to prosecute those who have committed crimes and to punish those individuals who are found guilty of said crime(s). However, when the issue concerns male sexual violence against women the male created legal system does its utmost to excuse/exonerate/deny men have committed sexual violence against women. Note too UK law states a woman has to prove she did not 'consent' to a male(s) subjecting her to sexual violence rather than the law presuming a woman does not consent unless proven otherwise.

So in effect these men are claiming a medical disorder in order to escape being convicted of raping a woman/women.

A medical condition does not exonerate any person from accountability for their actions - particularly when said medical condition is one wherein the male is one suffering from said condition and his condition is one which presents a real danger to all women and girls.

Women's and girls' right not to be subjected to male sexual violence supercedes a male's righ to claim 'guv I am not responsible for my sexual violence committed against a female because I suffer from somnambulism.'

The highly questionable medical disorder 'munchausen Syndrone' which supposedly predominantly affects mothers and causes them to commit violence against their child/children does not in itself exonerate the mother from culpability or accountability for her actions. But I forget when the issue concerns men the legal system accepts men's justifications for committing sexual violence against women.

Glosswitch // Posted 12 April 2012 at 22:30

I find this a really challenging area. I am not a law expert, but I do remember reading about the sexsomnia defence a few years ago and being outraged for the victims - but I can, sort of, see both sides, even though I would normally NEVER talk about rape in terms of seeing both sides. I did once, for instance, wake up to find my partner punching me in the face. Ordinarily you would call it an assault, but it turned out he was having a dream about someone stealing his dad's caravan and ended up having to defend himself against said "dream" person (I know, it sounds bizarre. But my partner is so non-violent, once I got over the shock we found it ridiculous and even laugh about it now. But looking at that written down, it sounds really wrong).
I am wondering, how is sexsomnia proven as a disorder? What is to stop anyone claiming to suffer from it? It does seem convenient if the accused is able have it diagnosed it in retrospect after a crime has been committed. And even someone who suffers from it could still rape. So often in rape cases we hear "well it's her word against his so you just can't do anything". Yet if we know a rape has taken place and the only defence is "his word" - what a man says he dreamed - why is that enough? Why is something so uncorroborated worth anything?
Sorry, this is very rambly. But a very disturbing piece.

Helen Hogg // Posted 13 April 2012 at 09:41

I agree a great deal with Aosher - it is vital that the law maintains a concept of intent.

However, I do agree with the article, that rape is such a serious crime that a lack of intent should not be a defence on its own. Where a person's actions, or failures, result in the death of another, we call that manslaughter. I would argue that a similar category should exist for rape, where a rape has occurred, but there is doubt over the intent - such as when the perpetrator is drunk and cannot remember. This would ensure that a person could still be considered guilty and prosecuted for a rape even if they do not remember doing it, making sure that individuals are fully responsible for their actions.

The article does have a worryingly dismissive attitude to these mental disorders, however the responsibility to ensure one's actions do not negatively impact others does not stop for those with a disability. People who are visually impaired, or have narcolepsy, are not allowed to drive to ensure the safety of others. Similarly, if a person is aware that they can be sexually active in their sleep, they have a duty to warn and prepare those whom they are with (or to lock their own bedroom door when there are children in the house). In the cases where the rape is certain but the intent is not, the court should consider the extent to which the perpetrator could have prevented their actions.

Lola Arcana // Posted 13 April 2012 at 11:47

Whilst taking into account mens rea, the accused must also take responsibility for putting themselves and others into a situation where this could occur.
Especially if they are already aware of the condition. Compare this sleep disorder to epilepsy and driving: if you know you have epilepsy and then drive a car and cause an accident you will be liable. The same could apply here as if he was aware of the condition (previous girlfriend) he should have taken precautions such as seperate rooms with a lock inside the other persons room.

SexierThanThou // Posted 13 April 2012 at 20:51

@Aosher Took the words right out of my fingertips. Very upsetting article, on very many levels.

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