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B.C. man acquitted of sexual assault of girlfriend after ‘sexsomnia’ defence

In what’s believed to be a first for B.C., a man has been acquitted of sexually assaulting his girlfriend after arguing that he had a condition known as sexsomnia.

At the time of the alleged offence, the man, who began his relationship with his girlfriend in 2010 and moved in with her in 2011, had gone with her to a Christmas party at her aunt’s home, in December 2012.

The couple planned to spend the evening at the home and consumed some alcohol during the celebrations. The accused went to bed first and testified that the next thing he remembered was feeling like he was in a dream. He could hear his girlfriend’s voice but could not understand what she was saying or where he was. As he became more aware, he found himself naked on top of his girlfriend, who was also naked, and engaging in sex.

Some 10-15 seconds later, he said, he heard something that he could not recall exactly but that he understood to be “stop.” He did stop, rolling himself off of her and to the other side of the bed. The accused, who said he was very confused and disoriented, said it felt like a dream and he fell back to sleep.

He said there was no discussion about what had happened that night and the first time he could recall talking about the incident was in January 2013. The girlfriend confirmed that she went to bed later than the accused and believed that he was likely asleep when she climbed into bed with him. She said that when she entered the bed, the accused made a move toward her that, based on previous experience, she interpreted as him wanting to initiate sex.

She didn’t wish to do so, so she says she said, ‘Oh, I don’t want to have sex tonight,’ but that the accused did not respond and soon after he moved directly toward her, to get on top of her. The girlfriend said she was confused and sharply called out his name but he still did not respond and straddled her and began having sexual intercourse. She said that several times she asked him to stop but he didn’t respond and after 30 seconds or so, he rolled off her and lay beside her in bed.

The girlfriend, who said she was confused and alarmed, recalled his words at that point were, ‘I can’t believe I just did that.’ The accused denied ever saying those words.

The accused raised the defence of sexsomnia, arguing that he was asleep at the time of the sex and therefore acting involuntarily and was not guilty of the offence of sexual assault. A sleep-disorder expert had diagnosed him with the condition and there was evidence of a personal and family history of sleepwalking as well as prior, similar incidents with other girlfriends. The accused had also sought treatment after the incident.

In her verdict, Provincial Court Judge Rita Bowry found that while the alleged victim had testified in a “straightforward” fashion, there were inconsistencies. She said the accused was “forthright” and gave evidence that was not nonsensical or illogical. “Nor was he deliberately telling falsehoods.”

The judge said she believed him when he said he did not intend to have sexual intercourse with his girlfriend. “It was not intentional, but rather done unconsciously while sleeping.”

Contacted Thursday, the accused said: “I hope that my ex does find healing. I’m so sad about the hurt I caused her. I do pray for her healing.”

The accused was represented by Lawrence Myers and his son, Zack Myers. Lawrence said he’s aware of at least one other case in Ontario where an accused was acquitted using a sexsomnia defence, but believes it’s the first such case in B.C.

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