Sleep and the law: “But officer I was asleep!”

BY Todd J. Swick,
M.D., F.A.A.N.
Diplomate, American
Board of Sleep
Medicine; Assistant
Clinical Professor
Neurology, UT-Houston
School of Medicine; Medical
Director, The Houston Sleep Center

Abnormal and sometimes violent behaviors arising from the sleep period are more common than previously thought. It has been estimated that 20% of children and 4% of adults experience disorders of partial arousal on more than an occasional basis. These activities include sleepwalking, sleep terrors and complex confusional arousals.

Parasomnias are undesirable behavioral or experiential phenomena arising from sleep. These can occur out of both NonREM and REM sleep. The behaviors can be simple or complex. They can be stereotyped or random and can involve violent and/or illegal behavior.

Legal cases involving parasomnias date back over 100 years when Maria Bickford was murdered by a lovesick admirer in Boston in 1846. The murderer had a “long history” of sleep walking and had no recollection of the event and therefore he was obviously “sleep walking”. The defense successfully argued that a person, to be found guilty of murder, needs to have conscious volition and if you are asleep then by definition the individual is not conscious and cannot be held criminally liable.

There have been numerous and usually notorious cases over the years in which defendants have argued that the illegal act in question occurred out of sleep.

The defense in these cases contends that “a person acts intentionally, or with intent, with respect to the result of his conduct [the illegal act] when it is his conscious objective or desire to cause the result” and “if the act occurred out of sleep then there could nothave been a conscious objective or desire to engage in that particular conduct”. Furthermore, “an act that occurs out of sleep prevents a person from knowingly having knowledge as to the result of his conduct.” Therefore “he is unaware that his conduct is reasonably certain to cause the result [the illegal act]”. This argument has been applied to several different criminal activities including, sexual assault, physical assault and murder.

The outcomes of these cases have been variable with some acquittals and many convictions. The problem is that there is no way to prove that behavior that may or may not have occurred in the past, i.e. confusional arousals, sleep walking, sleep talking, sleep eating and REM behavior disorder was present during the time the act took place.

In recent times there have been several notable cases where the illegal act allegedly arouse out of sleep and consequently, as the defense contended, was a “sane automatism” and as such the defendant was not criminally liable. In other words acts committed while sleepwalking are considered to be regarded legally as a “non-insane automatism”.

From Canada came the case of Kenneth Parks. He was acquitted of the murder of his mother-in-law and the attempted murder of his father-in-law after it was established that Mr. Parks had a history of sleepwalking and sleep talking and on the night in question was severely sleep deprived. There was also a strong family history of abnormal sleep behavior involving multiple family members on both his mother and father’s side.

He fell asleep on the couch in his home and then got up, drove several miles to his in-laws and then went into their home; he stabbed his mother-in-law multiple times and struck her with a tire iron causing blunt force injuries to her face and head. He strangled his father-in-law to unconsciousness. Afterwards, he turned himself in to the police, with blood on his hands (after cutting himself with the same knife he used to stab his mother-in-law) stating that he had a dream that he “killed someone with my bare hands” but had no memory of the event.

He was evaluated at great length by sleep experts and it was the opinion of the jury, upheld by the Canadian Supreme Court that the actions occurred when the defendant was incapable of knowing the consequences of his actions and therefore could not be held criminally liable.

Behaviors other than murder have been attributed to parasomnias in criminal cases. Sexual assault cases have been brought against defendants who have contended that they were asleep during the action and have pointed to prior history of such acts with either consenting partners or bedmates. All have the common situation where the individual had no recollection of the alleged act and had a history of complex and/or prolonged parasomnias, usually somnambulism.

In another Canadian case, a 26 year old man who drank 36 beers over a 10-hour time frame got into bed with the 4 year old daughter of his friend (with whom he was drinking). After a period of time, the girl was awake and upset, saying “he took my panties off and he hurt me.”

The defendant made no attempt to counter the little girl’s claims, however he had no memory of the event and in that he had an established history of sleepwalking with sometimes bizarre behavior such as urinating in a bucket next to his sister’s bed on the night before his marriage (also preceded by heavy drinking). There had never been any prior history of pedophilia and the behavior was completely out of character for this person. The court took all this into account and he was acquitted because “he was not conscious of what he was doing” at the time of the sexual misconduct.

In 1989 there was a report of three adult males who had engaged in “sleep-related sexual abuse of children”. A 1991 paper described a man who had a history of sleepwalking who was convicted of indecent exposure that apparently occurred during a somnambulistic event. In 1998 Rosenfeld and Elhajjar described sleep-related sexual behavior in two individuals that they attributed to “variants of sleepwalking”. The first case involved a man who had a nightly history of eating in his sleep, sleepwalking and would engage in sex during sleep characterized by having intercourse lasting for up to 30 minutes during which he “continued to snore loudly” and would be completely amnestic for the events in the morning. The second case involved a middle aged man without any history of criminal or sexual disorder who had a history of sleepwalking starting in childhood who was accused of fondling his daughter’s friend during a sleepwalking episode when he left his bedroom and walked downstairs where his daughter and her friend were sleeping.

In 2003 Shapiro, Trajanovic and Fedoroff suggested that “sexsomnia” be added to the nomenclature as a “new” parasomnia. They described 11 patients with sleep associated sexual behavior. The ages ranged from 16-43, 2 out of the 11 were women, 5 engaged in sexual assault, 2 engaged in masturbation and 4 engaged in sleepsex with their bed partner (similar breakdown to Guilleminault).

The 2005 ICSD-2nd edition included “aggressive or violent behavior or inappropriate sexual activity with oneself or the bed partner” as one of the essential features of a confusional arousal. Clearly the recognition of sexual activity during sleep and it’s emotional, psychological and legal impact makes it critical for the sleep specialist to ask about and investigate the issues surrounding this behavior. The reports point out that treatment of coexisting sleep disorders or treatment of the primary parasomnia can stop the sleep sex and avoid further emotional, physical or legal problems