A father of three who claimed to suffer from a condition known as “sexsomnia” has been convicted of the sexual assault of his female cousin.
The 26-year-old had pleaded not guilty at Dublin Circuit Criminal Court to the sexual assault at the victim’s flat in Dublin on August 11th, 2009. She is his first cousin.
A jury of 10 men and two women took less than 90 minutes to return the unanimous verdict.
Judge Patricia Ryan adjourned sentencing until March after being told that the man’s partner was due to give birth to their second child in four weeks.
The six-day trial heard evidence that while sleeping on the floor of his cousin’s bedroom the man got in to her bed, pulled her pyjamas off and ejaculated on her.
His defence team had argued that he has a history of sleepwalking and was not conscious of having committed a crime while the prosecution argued that the man was drunk and said that this could not be used as a defence against sexual assault.
The man and his cousin had been drinking along with their families for a number of hours following a family funeral before returning to her flat.
He told gardaí he was very drunk after drinking all day and couldn’t remember anything between going to sleep on his own and waking up in his cousin’s single bed.
The victim said that she woke up to find her cousin asleep beside her. Her pyjamas were partially pulled off her and semen, later identified as belonging to the defendant, was found around her vaginal area.
The court heard that the man believes he has a condition, described as “sexsomnia”, which causes sufferers to carry out physical and sexual assaults in their sleep.
The man’s pregnant partner told defence counsel Eanna Mulloy SC that over the course of their eight year relationship she had lost count of the number of times that she had awoken to find him having sex with her, apparently while still asleep. She said on many of these occasions he was sober and that he would not remember the sex the following day.
Prosecuting counsel Anne Rowland BL put it to the man that his level of drunkenness had lowered his inhibitions and ability to control his own actions but that that this was no defence.
“If you were sleep walking this could be a defence,” she said. “However if you get yourself so drunk that it leads to sleep walking, that is not a defence.”
Both the victim and the defendant sobbed in court as the verdict was delivered. He was placed on the sex offender’s register and remanded on continuing bail until next month’s sentencing.
Forensic psychiatrist Prof Henry Kennedy, director of the Central Mental Hospital, said he could find no evidence of sleepwalking in the defendant’s history and that his actions would be explained by him being drunk.
Prof Kennedy said he was sceptical about the possibility of "sexsomnia" because he believed sleepwalking and sexual arousal could only occur in two distinct phases of sleep. He said that sleepwalking or automatism normally involved repetitive purposeless acts but that in this case the alleged acts of undressing the victim had clear purpose.
Christopher Idzikowski, an expert witness described as the “grandfather of sleep studies” by the defence, said he believed the man had a sleeping “abnormality” based on sleep tests carried out at his Edinburgh clinic. Dr Idzikowski gave evidence that a person is capable of sexual behaviour while asleep.