Roger writing the LAWmag

Sexomniacs Unite!

Sexsomnia strikes at the core of criminal law as while the offence is committed and admitted, the accused walks out of the Courtroom – just as surely as he walks into his victim’s bedroom and rapes her. All forms of automatism are tough sells to the Court and especially to a rightfully-so cynical public.

There have been many automatons in the history of the common law jurisdictions. Amongst the most famous:

In 1987, Ken Parks of Pickering, Ontario was acquitted of murder because of automatism. He drove 15 miles to his in-laws' house and strangled his father-in-law then stabbed his mother-in-law to death. "I was sleepwalking" he said. When he woke up, he alleged having no recollection of his actions in spite of being covered in blood but did have the presence of mind to drive right straight to the police station.

In 2007, Kenneth Ecott, a 26 year old British Air Force mechanic raped a 15-year old girl in Pole, England but convinced a jury that he did it while sleepwalking (sexsomnia). He was acquitted.

In April of 2002, REM guitarist Peter Buck, was acquitted of attacking British Airlines flight attendants on a transatlantic flight to London including trying to grab the control panel of an exit door and announcing that he was "going home". Buck’s successful defence was that a sleeping pill reacted violently with alcohol and converted him into an automaton.

Add Jan Luedecke of Toronto to the list.

"The evening of July 5, 2003 and the early morning of July 6, 2003 are dates that will be seared forever in the memory of the complainant, L.O., and the defendant Jan Luedecke.  Ms. L.O. was attending the annual croquet party at 15 Blantyre Avenue in Toronto with a few of her friends.  She arrived at about 7:00 p.m.  There were approximately 50 to 60 people present.  She consumed several drinks over the course of the evening and participated competitively in the tournament.  At about 2:00 a.m. the following morning, feeling tired and cold, she sat down in the corner of a sectional couch in the living room of the premises to rest and await departure with her friends.  She fell asleep.

"She was abruptly jolted out of her sleep to find a man on top of her having sexual relations with her.  Her underwear had been removed and her skirt had been lifted up.  She pushed the male off onto his knees on the floor; this person was the defendant, Jan Luedecke.  She asked him, "who are you, like what are you doing?", grabbed her belongings and started to leave.  She returned to get her car keys and found the defendant was still standing in the living room.  She asked him, "who are you, what’s your name?"  He responded, "Jan".  He was not a person that she recognized from the party.  She left, grabbed her cellphone, and called, among others, her friend S.B..  As a result of a return call, she proceeded ultimately to Women’s College Hospital, where a physical examination was conducted and antibiotics were administered."

Saying he had a history of sleep walking and calling a sympathetic sleep expert at trial, (Dr. Colin Shapiro), Luedecke was acquitted by the trial judge.

The Crown appealed and the whole circus found itself before the Ontario Court of Appeal on February 7, 2008.

The Court heard from Luedecke’s counsel that sexsomnia has been accepted in Canadian criminal law since 1995 and since then, has been raised seven times, twice successfully.

Make that three times as the Court of Appeal dismissed the appeal and upheld the acquittal.

But it withheld judgment on a far more profound question.

There is another option, one Luedecke may not like but one more likely to protect the "L.O."’s of the world: a finding that the sexsomniac is to be put under the care of provincial mental health. Such a finding might mean institutionalization.

Luedecke’s lawyer knows his stuff. Before the Ontario Court of Appeal, Frank Addario of Sack Goldblatt Michell, Toronto, said that mental health designation would be overkill when a peace bind with creative conditions would do the trick.

For the uninitiated, defences like sleep walking can seem like a farce; the kind of judgment that irks Canadians from coast to coast, having them call into radio shows and writing to the editors of their local papers, calling for the head of whatever poor judge that approved the acquittal of the sleep-walking murderer or rapist.

But what do you do when a person reacts to sleep and anxiety and responds to what he or she perceives as being a dream and in that state, commits a crime? If the criminal law punished people for criminal thoughts, many of us would have been behind bars many years ago.

Since we can’t force the offender to serve a prison term in his parallel subconscious universe, and when the crime is actually committed in the real world, is it punishable here?

More and more, the answer is "no".


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Posted in Crime and Criminal Law, Sexual Assault
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