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Sexsomnia voids criminal case

Man repeatedly raped wife during night; sleep disorder considered rare

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A Winnipeg man has been found not criminally responsible for repeatedly raping his wife on the grounds he was suffering from a rare sleep disorder known as "sexsomnia."

The case, decided Friday in a city courtroom, is the first of its kind in local legal history and one of only a handful ever seen in Canada.

Queen's Bench Justice Chris Mainella said expert evidence submitted by both the Crown and defence lawyer Todd Bourcier, along with testimony from the victim, proves the 36-year-old accused had no control over his actions during dozens of attacks that occurred over a four-year span.

"She did not see the face of her husband. He had a cold, angry stare," Mainella said of the woman. "The actions of the accused were involuntary. He was robotic, emotionally vapid."


The NCR finding means the man avoids a criminal record or any punitive sanctions. His case will now be handled by the Review Board, which is expected to recommend continued medical treatment for the unique condition.

"Sexsomnia is a recognized disease of the mind," said Mainella. "The plea of mental disorder is supported here by independent psychiatric evidence from sleep-disorder experts."

The couple was married in 2000 and had two children in 2003 and 2006, court was told. Their relationship began experiencing turbulence shortly after their first child was born when stress started consuming their busy lives, which included long work hours for both.

They were living just outside the city and the man was commuting, typically away for up to 14 hours a day. His wife was struggling with her own start-up business. Sleep became a precious commodity, and the man said a good night would see him get about five hours of shut-eye.

Beginning in 2004, the man started waking up his wife in the middle of the night and forcing intercourse on her, usually about twice a month, court was told. She would often tell him "no" and "stop" but he continued.

The incidents were much different than their normal sexual activities, with the man in a zombie-like state, never uttering a word and usually having no memory of the incident the following morning, court was told.

"This is an unusual case, as it deals with the difficult question of impaired consciousness in the context of sexual relations between a husband and wife," Mainella said Friday. "Marriage is not, and I repeat not, an exemption from criminal responsibility for unwanted sexual activity with one's spouse."

These incidents continued until 2008, when the woman finally went to the police at the urging of a nurse she had spoken to who scoffed at the sexsomnia claim. The woman said she went along with what was happening in an attempt to save their marriage, which has since ended.

The couple had previously disclosed to a marriage counsellor what was happening and the man had also requested help through Health Links for his condition. He has since undergone extensive examination by a Toronto-based expert on sexsomnia who concluded this is legitimate.

In a 2007 study, researchers from the Minnesota Regional Sleep Disorders Center and Stanford University School of Medicine found "sexsomnia" was becoming an increasing problem, with 80 per cent of documented cases involving men.

The term first hit the Canadian radar in 2005, when a Toronto judge acquitted a 33-year-old man of sexual assault after ruling he was asleep at the time and unable to form the necessary intent. Unlike this case, there was no prior relationship between the couple. The accused met the victim at a house party, she fell asleep on his couch and awoke to him forcing intercourse with her.

Republished from the Winnipeg Free Press print edition June 29, 2013 A3

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