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Court hears 'no objective scientific evidence' man can have sex with a woman while asleep

CourtsBy Sunday World
The man who cannot be named for legal reasons has pleaded not guilty at the Central Criminal Court to one count of rape
The man who cannot be named for legal reasons has pleaded not guilty at the Central Criminal Court to one count of rape

There is no objective scientific evidence to suggest that a man can have sex with a woman while asleep, a rape trial has been told.

The 29 year old accused has conceded he could have had sex with his friend when they shared a bed but it is the defence case that this was a result of “sexsomnia”, a sleep-walking condition that causes sufferers to carry out sexual acts while asleep.

The defence presented expert evidence that it was “likely” the man was in state of sleep when he climbed on top of the woman, pulled up her skirt and put his penis in her vagina. The defence also called witnesses who said the accused haf a history of groping or grinding up against people in his sleep.

The man who cannot be named for legal reasons has pleaded not guilty at the Central Criminal Court to one count of raping the woman at an apartment in Dublin in the early hours of September 28, 2008.

Today an rebuttal expert witness for the prosecution said he was not aware of any objective scientific observation of a man initiating sex during sleep.

Dr Harry Kennedy, a forensic psychologist and the clinical director of the Central Mental Hospital disagreed with the defence evidence in several areas.

He told prosecuting counsel Patrick McGrath BL that much of the scientific evidence presented by the defence to support sexsomnia relied on the honesty of patients and not objective observations.

He said a 2006 study of 31 cases failed to show a single observed instance of a male initiating sex with a woman while asleep.

The accused has undergone several sleep tests in preparation for the trial but none to observe sexual arousal, Dr Kennedy noted. He said such tests were uncommon but possible given the right equipment.

He also questioned whether it was possible for a male to get an erection during non-REM sleep, the stage of sleep in which sleepwalking occurs.

“This is not the normal physiology,” the doctor said. He added that it might be possible for someone to have an erection while transitioning into non-REM sleep but that he would need to see a demonstration of this.

Dr Kennedy said actions during sleep were generally “very very simple” and directionless. Speech was incoherent and meaningless, he said.

He said the accused's alleged actions, including pulling up the woman's skirt and pulling aside her underwear, demonstrated “intact mental ability and therefore consciousness.”

The woman alleges the accused talked to her during and after the alleged rape, including telling her he would go with her to get “the morning after pill.” Dr Kennedy said the conversation was evidence “of being fully awake.”

He said he believed the more likely explanation for the accused's failure to realise the woman was not consenting was the amount of alcohol he consumed that night. The man drank 330ml of whiskey, four whiskey and cokes and possibly some beer; “a substantial amount for anyone” the doctor said.

Asked about his views of the sleep science medical profession, Dr Kennedy said it was “a closed community”.

Referring to the concept of sexsomnia he said “discussions that go on within highly specialised scientific communities are often discussions that are not ready for adoption across generalised medicine.”

Under cross-examination by defence counsel Hugh Hartnett SC, Dr Kennedy accepted sleep science was not his area of practice and that he hadn't worked in a sleep clinic since 1985. He said he followed developments in the area with interest.

He said he was appearing for the prosecution as a expert witness and was being paid to do so, “as are all experts.”

Dr Kennedy said that although he did not specialise in sleep disorders, he was an expert in the broader area of automatism.

Evidence has finished in the case. The jury of eight men and four women will now hear closing speeches before being addressed by Mr Justice Patrick McCarthy.