Roger writing the LAWmag

Sleep and The Law: Strange Bedfellows

At first glance, the relationship between sleep and law appears to be forced, awkward.

One, the law, is a flexible, man-made creature of the social sciences.

Sleep, as a function of the human body, is a creature of biology and a hard science (medicine, which has a plethora of related medical terms such as somnolence and insomnia).

For many, their experience in law is enough to cause sleep. Some of the recent decisions of the Supreme Court of Canada are excellent tools for curing insomnia.

But for most, exposure to law - especially litigation - causes insomnia, sometimes transient (litigant) sometimes chronic (litigator).


In so very many pre-sentencing reports heard in the court rooms around the world are those nauseating words which seek to avoid criminal liability: self-serving protestations and deflections of accountability claiming that the accused was sleep deprived at the time of the offense and, the theory goes, not in complete control of his actions, and therefore not eligible for the full condemnation of justice.

sleepy lawyersApparently, there are rare sleep-walking disorders (parasomnia - see also Lloyd Duhaime, Sexomniacs Unite!, February 11, 2008) which are so severe that men have been known to rape women while in this apparent condition, and yet have been acquitted because of medical evidence that their actions were not within their control - they were sleepwalking at the time.


There are at least four significant areas where sleep and law come together as emerging issues and often with tragic results.

The first is crime. It is the rare crime that is committed on a good night sleep or within the joy and pleasant mood only such an evening of sleep can bring.

Indeed, a lack of sleep (sleep deprivation), dulls mood and mind and robs it of full ability, like a flash-light fluttering on old batteries. Sleep deprivation causes a person's ability to reason to shrink, incrementally, as sleep deprivation worsens. Sleep deprivation is a well-known albeit mild torture technique as it dulls the senses as the period of sleep continues.

Crime and torts are often judged against an ethereal standard of reasonable person. A person placed in a situation of stress, or faced with a convenient but illegal choice, if sleep deprived, might simply not be able to evoke the willpower of a reasonable person and do the right thing. These people get caught and often end up as defendants in civil and criminal trials.

Related to crime is the omnipresent poor cousin to what our ancestors would have called "possessed by evil", and what clinicians now call anger (Overcoming Anger).

Sleep deprivation causes irritability and can even provoke mood disorders. Sleep deprivation usually causes an individual to lose, again incrementally, patience and perspective. Little irritants loom large and Mr. Hyde erupts at slight provocation.

Sleep deprived individuals are much more vulnerable to react to adverse information with anger and to use that anger to emotionally bully a resolution to the situation they find irritating. Road rage is often the result of two sleep deprived drivers meeting each other on the streets and highways and erupting on a small perceived transgression of some rule of the road.

sleeping juryThe third significant area where sleep and law come together with often tragic results is tort and personal injury law. Sleep deprivation takes away normal abilities of observation, judgment and reaction. As the Canadian Medical Association states:

"Somnolence (sleepiness), with its associated reduction in vigilance, is an important contributor to driver error and motor vehicle crashes."

Both the Three Mile Island nuclear accident in 1979 and Chernobyl in 1986 were partly attributed to the lack of sleep of a key employee.

According to the National Health and Transportation Safety of America:

"Drowsy driving causes more than 100,000 crashes a year, resulting in 40,000 injuries and 1,550 deaths."

Imagine the truck driver who falls asleep while driving an enormous truck on a busy highway.

But perhaps just as dangerous, given the sheer frequency, are those persons who are sleep deprived and who in all situations of life may create and leave behind situations of danger to them or to others, because of their inattentiveness. Examples include inadvertently running a stop sign, failure to slow down at a pedestrian crossing, and a whole host of household situations and tragedies caused by the inadvertence of a sleep deprived individual.

Statistically, sleep deprivation greatly increases an individual's exposure to the status of unsuccessful defendant in a tort action. It is not suggested that sleep deprivation is like a virus that has spread around the world and that is slowly crippling society. But the prevalence of sleep deprivation is significant and cannot be minimized.

The fourth area where law and sleep meet is within the profession of law. How many times have my attempts at falling asleep on the eve of trial failed when faced with a tsunami of ideas and thoughts as scenarios race through my mind? Sleepy lawyers are not alert lawyers.

Judges must have the occasional sleep issue too. I had a judge of the Supreme Court of British Columbia (he retired in August of this year), who was clearly snoozing during my client's cross-examination. I nudged the other lawyer, a Queen's Counsel and said, "You should wake him." She declined whispering back "I'm damned if I do and damned if I don't. I think it'd cause more trouble than it would be worth". So she continued her cross-examination which was, of course, totally lost on the Court. Later, that same judge ruled against my client and he based his judgment on .... credibility!

Sleep disorders are now aggressively being researched and addressed by the national medical associations of many countries. In 1996, the American Medical Association recognized sleep medicine as an independent medical speciality. According to one study, 15% of the general population suffers from a chronic sleep disorders and:

"One in five adults does not get a sufficient amount of sleep ... and almost ten percent of adults suffer from insomnia."1

Sleep disorder clinics are popping up (unfortunately, some offering quack medicine). Many of the Internet sites refer to a "doctor" but close scrutiny reveals that the "doctor" is a dentist, a psychologist or even the local gardener. If you have a sleep issue, read Sleep Tips and Advice. If those suggestions do not help, find a trained professional such as a respiratory therapist or medical doctor who specializes in sleep medicine.

One Sleep At A Time

Each one of us, today and every day, will come upon a situation adversely affected by the actions of someone who is sleep deprived.

It is not suggested that even if sleep deprivation around the world could be eradicated, crimes and torts would cease altogether. But sleep deprivation is a significant factor in what by definition, the law seeks to eradicate. Anything that benefits sleep overall, enhances public safety.

Still, the sleep deprivation factor is like a shadow in the hallways of justice, something the law is vaguely aware of and certainly ill-informed upon, and yet it walks locksteps with the courtroom docket.

It begets the law to promote awareness of the phenomena of sleep deprivation because a well-rested individual is more likely to keep the peace, be of good behaviour, and avoid the inside of a courtroom, just as a well-rested judge is not likely to have his afternoon nap on my client's dime.


Posted in Crime and Criminal Law, Personal Injury and Tort Law

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