Sexsomnia Defense In Sexual Offenses: An In-Depth Visual Analysis Of This Controversial Legal Concept.
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Sexsomnia: A Controversial Defense in Sexual Offense Cases

In the recent legal ruling, a defense of "sexsomnia" has been presented, raising questions about the validity of this sleep disorder in the courtroom. Could this new defense be an effective strategy or is it an unethical loophole in the criminal justice system?
18 mins read

Sexsomnia Scapegoat

Sexsomnia is an increasingly unique defense used in courtrooms when someone is accused of a sexual offense while they were asleep. There is a great deal of confusion and debate surrounding the concept and its legal implications.

To gain a comprehensive understanding of sexsomnia and its implications in the courtroom, it is important to explore the background of the condition, the legalities, and the potential implications for criminal proceedings.

A Glimpse into the World of Sexsomnia


  • Sexsomnia, also known as sleep sex, is a sleep disorder where an individual engages in sexual activities while asleep and unconscious.
  • It is classified as a type of parasomnia – abnormal behaviors, perceptions or experiences that occur during sleep.


  • Common symptoms during sexsomnia episodes include:
    • Masturbation
    • Fondling
    • Sexual vocalizations (moaning, dirty talk)
    • Sexual movements (pelvic thrusting)
    • Initiating sexual activity with a partner
    • Sexual aggression or assault


  • The exact causes of sexsomnia are not fully understood
  • It is thought to be related to other sleep disorders like sleepwalking
  • Potential triggers include:
    • Sleep deprivation
    • Stress
    • Sleep apnea
    • Medication side effects
    • Alcohol/substance use


  • There is no definitive test to diagnose sexsomnia
  • Diagnosis may involve:
    • Medical history and sleep logs
    • Overnight sleep study (polysomnogram)
    • Ruling out other sleep/medical disorders


  • Treatment aims to address any underlying sleep disorder
  • Options may include:
    • Improving sleep habits/hygiene
    • Medication (sedatives, antidepressants)
    • CPAP for sleep apnea
    • Avoiding triggers like stress/alcohol
    • Safety precautions (separate bedrooms, alarms)


  • Sexsomnia can cause embarrassment, distress for the person and partner
  • It raises issues around consent for sexual activity
  • There have been legal cases involving sexsomnia and sexual assault charges

So in essence, sexsomnia involves unconscious, amnestic sexual behaviors arising from disrupted sleep, with complex psychological, relational and even legal implications in some cases.

Sexsomnia is much rarer than other parasomnias such as sleepwalking or nightmares. It is estimated to affect only 0.5% to 4% of the population, with men being more than three times as likely to suffer from sexsomnia than women. Sufferers of sexsomnia may not be aware of the activities they are engaging in while they sleep, and are usually disoriented upon awakening.

Sexual Activities at Sleep: Subconscious or Criminal?

The concept of sexsomnia first gained notoriety in the legal system in the early 2000s. Because of the nature of the offense, there is strong evidence needed to prove that the perpetrator was aware of their actions before, during, and after the incident. In the case of someone with sexsomnia, the defendant can argue that they were unconscious and that the behavior was not consensual.


The implications of using sexsomnia as a defense are complex. On the one hand, it is difficult to disprove an unconscious state. There is no real way to know whether an individual was aware of their actions at the time of the incident. On the other hand, individuals with sexsomnia can pose a danger to others unless their condition is diagnosed and treated. Without proper diagnosis and treatment, those accused of sexual offenses could be absolved of responsibility for their actions, potentially putting others at risk.

A Look at the Legality of the Sexsomnia Defense

The legibility of the sexsomnia defense hinges on the intent of the perpetrator. The defense must be able to prove that the individual was unaware of their actions at the time of the offense. In some cases, evidence such as a medical diagnosis of sexsomnia and testimony from a sleep specialist may be used. In these cases, the accused can be acquitted and allowed to return to society without a criminal record.


There have been various cases in which sexsomnia has been used as a defense. In one instance, a man who was accused of attempted rape used the defense as his acquittal and a formal diagnosis of sexsomnia was issued. In another case, a man was cleared of criminal sexual activity after his lawyer argued that his actions were the result of his undiagnosed condition.

Examining the Future of Sexsomnia in the Courtroom

Given the complexities of sexsomnia, it is likely that this defense will continue to be used in courtrooms for years to come. As an increasingly recognized medical condition, research is key to fully understanding it, and this understanding may be crucial in determining the true culpability of an individual accused of a crime. Ultimately, it is up to legal professionals to determine how to best use this defense in a way that protects potential victims from harm and ensures that innocent individuals are not wrongfully convicted.

Sexsomnia, also known as sleep sex or sleep-related abnormal sexual behavior, is a relatively new concept and has been used as a defense in a few court cases. However, it is important to note that the success of using sexsomnia as a defense can vary depending on the jurisdiction and the specific circumstances of the case.

Notable Court Cases Where Sexsomnia Was Used As A Defense:

R v DB

In the case of R v DB [2022] NSWCCA 87, the key issue was whether sexsomnia (also known as sleep sex or parasomnia) qualifies as a mental health impairment under the Mental Health and Cognitive Impairment Forensic Provisions Act (MHCIFP Act) in New South Wales, Australia.


  • DB was charged with three counts of sexual intercourse with a child under 10 years old, his young daughter.
  • He pleaded not guilty, claiming his actions were involuntary due to sexsomnia.
  • At the judge-alone trial, the Crown accepted that DB’s acts were involuntary due to sexsomnia.
  • The trial judge found that sexsomnia does not meet the criteria for a “mental health impairment” under the MHCIFP Act and acquitted DB.

The Crown appealed, arguing that DB should have been subject to a special verdict of “act proven but not criminally responsible” due to a mental health impairment.


  1. Sexsomnia does not qualify as a “mental health impairment” under section 4 of the MHCIFP Act, as the absence of volition during sleep is a universal characteristic, not a “disturbance of volition” as required by the Act.15
  2. Under common law principles, the acts of a person who is asleep and engaged in somnambulistic (sleepwalking) activity are not willed acts, and the person is not legally responsible.5
  3. The trial judge was correct in granting DB an outright acquittal, as sexsomnia does not constitute a mental health impairment capable of giving rise to a special verdict under the Act.15


  • Individual Australian states have enacted legislative frameworks for dealing with offenders deemed not criminally responsible due to mental health disorders
  • These regimes recognize that certain mental health conditions can affect an individual’s culpability


  • The Court of Appeal upheld the trial judge’s finding that sexsomnia does not qualify as a mental health impairment
  • The absence of volition during normal sleep does not meet the legal definition
  • However, the Court affirmed common law principles that:
    • Acts during sleepwalking/somnambulism are not willed acts
    • The accused is not legally responsible for such unconscious acts
  • Therefore, DB’s outright acquittal was considered appropriate


  • There is currently no published legal authority in Australia that sexsomnia is a mental impairment capable of a special verdict
  • The case highlights ongoing legal debates around how to treat sexsomnia within mental impairment legislative frameworks


  • Australian courts have used three main tests:
    1. Internal-external test
    2. Recurrence test
    3. Sound/unsound mind test


  • If the automatism arises from an internal cause/condition, it is considered insane automatism
  • If caused by an external factor, it is sane automatism


  • If the condition causing automatism is likely to recur, it points to insane automatism
  • If it was a transient/one-off event, it suggests sane automatism


  • Assesses if an ordinary person’s mind would have withstood the trauma/stress that triggered the automatism
  • If an ordinary mind would withstand it, the automatism is considered insane
  • If an ordinary mind would not withstand the trauma, it is sane automatism


  • Based on the internal-external and recurrence tests, sexsomnia appears to fall under insane automatism:
    • It arises from an internal sleep disorder condition
    • And is prone to recurrence in those who suffer from it
  • However, Australian sexsomnia cases resulting in acquittals have not explicitly applied these tests
  • In R v Spencer (2008), the key issue was whether the offense occurred during a genuine sexsomnia episode
    • The court relied heavily on expert medical testimony about Spencer’s sleep disorder
    • There was no analysis of whether it constituted sane or insane automatism
  • Similarly, other Australian sexsomnia cases have focused on accepting or rejecting the medical evidence
    • Rather than applying the legal tests to categorize it as sane or insane automatism

So in practice, while the legal tests exist, Australian courts in sexsomnia cases have prioritized the medical evidence and credibility assessments over strictly applying the sane vs. insane automatism analysis. While Australian laws account for mental impairments reducing criminal culpability, the R v DB case demonstrated that sexsomnia may not meet the strict statutory definitions, though common law still provides a pathway for full acquittals based on the involuntary nature of the acts.

People v. Ellington


  • Joseph Ellington faced six counts of lewd acts on a child under 14 years old
  • The charges involved alleged sexual acts with a minor victim


  • Ellington’s defense claimed he suffered from sexsomnia (sleep sex disorder)
    • Sexsomnia can cause people to engage in sexual behaviors during sleep without conscious awareness
  • The defense aimed to argue Ellington’s actions were involuntary due to this sleep disorder


  • The defense presented expert testimony from Dr. Clete Kushida, a sleep expert
    • Dr. Kushida conducted a sleep study on Ellington
    • The study showed “non-specific subtle indications” requiring further evaluation of a possible sleep disorder


  • The jury found Ellington guilty of one count of oral copulation with a minor victim
  • For the other five counts, the jury could not reach a unanimous verdict
    • The court declared a mistrial on those five counts
  • The court denied Ellington’s motion for a new trial based on the sexsomnia evidence
    • The court did not find the sleep study evidence convincing enough


  • Ellington was sentenced to six years in prison for the oral copulation conviction
  • His conviction and sentence were affirmed on appeal


  • This case demonstrated the challenges of using a sexsomnia defense successfully
    • Despite expert testimony, the court was not persuaded by the limited sleep study evidence
  • Ellington was still convicted and imprisoned for one of the charges involving a child victim
  • The case highlighted legal debates around the boundaries of the sexsomnia defense

So in summary, while Ellington attempted to claim sexsomnia caused involuntary actions, the evidence was deemed insufficient, leading to his conviction, prison sentence, and rejected appeals related to the charges of lewd acts against a minor.

State v. Scott


  • In 1992, Scott was convicted by a jury for the assault, rape, and murder of Lesa Buckley
  • Buckley’s body was found on July 8, 1990 in Cedar Lake near New Paris, Ohio
  • The lake was near a quarry where Buckley, Scott, and 60-120 others attended a party the previous night

Trial and Conviction

  • The jury considered testimony from dozens of witnesses and circumstantial evidence
  • Key evidence included:
    • Eyewitness testimony
    • Circumstantial evidence linking Scott to the crimes
  • There was no direct physical evidence linking Scott to the crimes1
  • Scott’s defense involved arguing there were one or more alternative suspects1
  • The identity of the contributor to DNA samples from Buckley was unknown1
  • Despite this, the jury found Scott guilty beyond a reasonable doubt of assault, rape, and murder1

Appeals and Post-Conviction

  • Scott’s convictions were upheld on direct appeal in 19941
  • In 2020, Scott petitioned for post-conviction DNA testing, which was initially denied1
  • In 2022, the Ohio Supreme Court reversed and allowed the DNA testing request:
    • They found an exclusion DNA result could create reasonable doubt
    • This was due to the lack of direct physical evidence originally presented1
  • The case was remanded for further proceedings on the DNA testing request1

So in summary, while Scott was convicted in 1992 largely on circumstantial evidence, decades later he was granted the opportunity to pursue DNA testing that could potentially exonerate him or create reasonable doubt about his guilt.

R v Spencer

Case Overview

  • A landmark 2008 case in the Northern Territory put the sexsomnia or “sleep sex” defense in the spotlight
  • The case involved Matthew David Spencer, charged with sexual offenses against a woman

Defense Arguments

  • Spencer’s defense team argued he suffered from sexsomnia
    • A rare sleep disorder where individuals engage in sexual behaviors while asleep without awareness or control

Evidence Presented

  • During the trial, the defense presented expert testimony from a psychiatrist:
    • The psychiatrist stated Spencer was a regular sleepwalker
    • Evidence suggested Spencer may have been in a sexsomnia state during the alleged acts

Trial Outcome

  • Justice Southwood, the judge, informed the jury they could accept the sexsomnia evidence as a defense
  • Ultimately, the jury acquitted Spencer of all charges:
    • Acquitted of gross indecency
    • Acquitted of sexual intercourse without consent


  • Considered one of the first high-profile Australian cases where a sexsomnia defense led to acquittal on sexual assault charges
  • Highlighted the emerging medical recognition of sexsomnia as a legitimate sleep disorder
  • Raised legal debates around criminal culpability for unconscious acts committed during sexsomnia states


  • The acquittal proved controversial
    • Some argued there should still be accountability for non-consensual acts, even if unconscious
  • However, the case paved the way for further examination of how to legally handle sexsomnia cases

So in summary, the R v Spencer case was groundbreaking in successfully using a sexsomnia defense to secure acquittals on sexual offense charges in Australia, while also sparking controversy and debates around the boundaries of criminal responsibility for unconscious acts.

TI v The Queen [2015] ACTCA 62


  • The appellant (TI) was tried and found guilty of incest and committing acts of indecency on his 11-year-old stepdaughter
  • TI appealed the verdicts, arguing they were unreasonable

Sexsomnia Defense

  • TI claimed the possibility of him being asleep (sexsomnia) during the alleged offenses could not be reasonably excluded
  • Two medical experts testified about sexsomnia:
    • Dr. Buchanan, an expert in sexsomnia
    • Dr. Allnutt, another expert witness

Expert Testimony

  • Dr. Buchanan’s Testimony:
    • Conceded there was no definitive test to diagnose sexsomnia
    • Research into the phenomenon was still in its early stages
  • Dr. Allnutt’s Testimony:
    • Provided ambivalent evidence
    • Unclear if TI’s actions were voluntary or a result of sexsomnia

Appeal Decision

  • The appeal was ultimately dismissed by the court
  • Key findings:
    • The guilty verdicts were reasonably open to the jury based on the available evidence
    • The expert testimony raised only a theoretical possibility of involuntary acts due to a sleep state
    • The credibility assessment of the complainant versus the appellant was crucial
    • It was deemed a “classic jury case” to weigh the evidence and credibility


  • Highlighted the challenges of successfully raising a sexsomnia defense
    • Despite expert testimony, convictions can still be upheld
  • Demonstrated the role of credibility assessments in such cases
    • Jury must weigh expert evidence against testimony of complainant/defendant
  • Reflected the evolving and complex legal considerations around sexsomnia

So in summary, while the sexsomnia defense was raised with expert testimony, the ambiguity around definitively proving it, combined with the credibility issues at play, led to the appeal being dismissed in this Australian case involving serious sexual offenses against a child.

R v Coulson, Brooks and others (UK 2013-2014)

Based on the provided search results, here are the key details about the case R v Coulson, Brooks and others (UK 2013-2014) – the UK phone hacking trial:

  • This was a high-profile criminal trial in the UK related to allegations of phone hacking by journalists and private investigators working for News of the World and other News International publications owned by Rupert Murdoch’s News Corp.
  • The main defendants were Rebekah Brooks, former editor of News of the World, and Andy Coulson, former editor who succeeded Brooks.
  • The trial revealed that Brooks and Coulson had a secret 6-year affair from around 1998-2004, covering the period when the phone hacking conspiracy allegedly took place.
  • The prosecution argued this close personal relationship showed they could have been aware of and trusted each other regarding the illegal activities.
  • However, the trial was unrelated to the use of sleepwalking or sexsomnia as a legal defense. It focused on the phone hacking charges against the journalists and editors.
  • There was no physical evidence directly linking Brooks to phone hacking during her editorship. The prosecution’s case against her was considered weak.
  • After a lengthy trial from 2013-2014, Coulson was convicted of conspiracy to intercept voicemails, while Brooks was acquitted of all charges.

So in summary, while a notable UK trial, it did not involve any legal arguments around sleepwalking, sexsomnia or related sleep disorders as a defense. The case centred on charges of phone hacking against senior News Corp employees in the early 2000s.

R v Luedecke

Sexsomnia is legally recognized as a mental impairment that can lead to a verdict of not criminally responsible in Canada, based on the leading case R v Luedecke:


  • In Canada, sexsomnia (sleep sex) is legally recognized as a mental impairment
  • It can potentially lead to a verdict of not criminally responsible (NCR) due to mental disorder
  • The leading case on this issue is R v Luedecke

R v Luedecke Case Facts

  • In July 2003, Jan Luedecke, a Toronto landscaper, sexually assaulted a woman while they were both sleeping on a couch at a house party
    • The woman awoke to find Luedecke having non-consensual sex with her
    • Luedecke was charged with sexual assault
  • Luedecke’s defense argued he suffered from the rare sleep disorder sexsomnia
    • Where people can engage in sexual behaviors while asleep without conscious awareness
  • During the 2005 trial, Dr. Colin Shapiro, a sleep expert, testified:
    • He stated Luedecke suffered from parasomnia, which includes sexsomnia
    • Sleep studies showed Luedecke had brain patterns consistent with the disorder

Trial and Initial Ruling

  • The judge accepted the sexsomnia defense
  • Ruled that if Luedecke was truly asleep, he could not be held legally responsible for unconscious actions
  • Luedecke was acquitted of the sexual assault charge

Appeal and Subsequent Proceedings

  • The acquittal was controversial, with women’s groups arguing there should still be accountability
  • The Crown appealed, and Luedecke’s acquittal was overturned
  • A new trial focused on whether his automatism amounted to a “mental disorder”
    • Ultimately, Luedecke consented to a verdict of NCR due to mental disorder
  • The Ontario Review Board later granted Luedecke an absolute discharge
    • Determining he did not pose a significant public safety threat

Legal Significance

  • This was one of the first high-profile Canadian cases where sexsomnia successfully defended against sexual assault charges
  • It clarified that sleepwalking/sexsomnia qualifies as a “disease of the mind”
    • Allowing for NCR verdicts in such cases under Canada’s 1992 legislative reforms
  • It provided guidance on applying the NCR regime to mentally disordered offenders
  • Highlighted complex issues around unconscious behavior, criminal culpability and public safety assessments

So in summary, the groundbreaking Luedecke case established the legal recognition of sexsomnia as a mental impairment in Canada that can result in NCR verdicts rather than convictions, subject to review board assessments of whether the individual poses a safety risk.

R v Parks (1992)


  • In R v Parks (1992), the Supreme Court of Canada heard the case of Kenneth Parks who was initially charged with murder and attempted murder of his in-laws.
  • In 1987, Parks drove 23 km to his parents-in-law’s house where he killed one and seriously injured the other while they were both asleep in bed. He
  • attacked them with a tire iron while in a state of sleepwalking (somnambulism).
  • He then drove to a nearby police station.
  • In applying the internal cause factor, the court accepted unanimous expert evidence that sleepwalking was “not an illness, whether physical, mental or neurological”, that sleep is a normal condition, and the involuntary conduct was caused by this normal condition

Trial Court

  • At his murder trial, Parks raised the defense of automatism due to sleepwalking.
  • Expert testimony confirmed Parks was likely sleepwalking during the attacks.
  • The jury acquitted Parks of murder, accepting the sleepwalking defense.

Issue Before Supreme Court

  • The key issue was whether sleepwalking/somnambulism should be classified as:
    • Non-insane automatism (allowing full acquittal)
    • Or a “disease of the mind” requiring a verdict of not guilty by reason of insanity

Supreme Court Decision

  • The majority (5 judges) upheld Parks’ acquittal:
    • They accepted sleepwalking could constitute non-insane automatism
    • If proven, it entitled Parks to a full acquittal rather than a verdict of insanity
  • The dissenting minority (3 judges) argued sleepwalking should be treated as a “disease of the mind”
    • Requiring a special verdict of not guilty by reason of insanity

Legal Principles

  • The majority outlined key principles:
    • For the “disease of the mind” defense, the condition must be an internal cause rooted in the accused’s psychological state
    • And it must render the accused a continuing danger to public safety
  • Sleepwalking, being a non-recurring condition triggered externally, did not meet this test


  • R v Parks established that sleepwalking/somnambulism can ground a defense of non-insane automatism in Canadian criminal law
  • It allowed for full acquittals in cases where sleepwalking is proven as the cause of violent acts
  • But it maintained a distinction from “diseases of the mind” requiring special insanity verdicts

So in summary, this landmark ruling clarified the legal status of sleepwalking as a potential defense leading to full acquittal, separate from mental disorder defenses, in the Canadian justice system.

R v Granger


Sane automatism was raised as a defence in the first reported sexsomnia case, R v Granger.

  • Granger was charged with sexual assaulting a four-year-old girl, who had crawled into her parents’ bed where Granger happened to be sleeping.
  • Her aunt found her, next to a sleeping Granger.
  • She was crying and said without prompting that he had put his finger in her vagina.

Key Issues

  • A psychiatrist acknowledged as an expert in sleep disorders testified that Granger was suffering from parasomnia when he removed the child’s underwear and fondled her genitals.
  • The court held that the psychiatrist’s opinion was supported by factors such as disorientation on awakening, amnesia, trigger factors (stress and excessive fatigue), no attempt to conceal the crime, and the conduct was out of character.
  • The court then considered whether the sexsomnia was sane or insane automatism.
  • The judges accepted psychiatric evidence that the risk of recurrence was small, and that the episode was triggered by external causes.
  • Granger was found not guilty.

England’s Approach

  • English courts have focused solely on the “external factor” approach to determine if involuntary conduct is sane or insane automatism.
  • If there is an internal malfunction of the mind, the conduct is considered insane automatism, regardless of likelihood of recurrence.
  • Despite the medical view that sleepwalking is a “disease of the mind” (internal cause), sexsomnia has been treated as sane automatism in England.

Case Outcomes

  • Out of 18 known rape cases from 1996-2011 where sexsomnia was pleaded as a defense:
    • 12 ended in acquittals
    • 1 Scottish case was “not proven” (acquittal)
    • 5 ended in guilty verdicts
    • 9 of the 18 cases occurred between 2009-2011
  • Notable acquittals include cases like James Bilton (2005), Ken Ecott (2007), and David Pooley (2007) where defendants had histories of sleepwalking.
  • In recent cases like Zack Thompson (2012), Simon Morris (2013), and Gary Forbes (2013), the sexsomnia defense was unsuccessful.

Key Consideration

  • The key issue appears to be whether the court accepts that the sexsomnia episode was genuine.
  • If accepted as genuine, it has generally led to full acquittals.
  • There does not seem to be examination of whether it qualifies as sane or insane automatism specifically.

So in summary, English courts have tended to treat genuine cases of sexsomnia as sane automatism allowing full acquittals, rather than considering it a potential “disease of the mind” or insane automatism.

Jade McCrossen-Nethercott v UK Crown Prosecution Service (CPS)

Jade McCrossen-Nethercott suing the UK Crown Prosecution Service (CPS) after her rape case was dropped due to claims by the accused of sexsomnia:


  • In 2017, Jade McCrossen-Nethercott (then 24 years old) reported being raped by a man while she was asleep on a sofa after a night out.
  • The man was initially charged with rape and the case was set to go to trial.
  • However, 13 days before the trial, the CPS dropped the case against the advice of police.

Sexsomnia Claims

  • The CPS claimed two sleep experts said it was possible McCrossen-Nethercott had an episode of the rare sleep disorder sexsomnia.
  • Sexsomnia can cause people to engage in sexual activity while unconscious and unaware.
  • The experts, hired by the defense and CPS, stated her behavior could have appeared as if she was awake and consenting.

McCrossen-Nethercott’s Fight

  • McCrossen-Nethercott was devastated by the decision to drop her case based on the sexsomnia claims.
  • She obtained all the evidence, including the sleep experts’ reports which she felt gave too much weight to the sexsomnia theory without meeting her.
  • She commissioned her own sleep expert who had never seen a case of an alleged victim having sexsomnia.
  • After challenging the decision, the CPS admitted the case should not have been dropped and apologized.

Legal Action

  • McCrossen-Nethercott is now suing the CPS for damages on human rights grounds.
  • Her case has raised concerns about how rape cases are handled and the use of sexsomnia as a defense tactic.
  • It highlights the difficulties victims face in getting justice, even with evidence like DNA matching the accused.

So in summary, McCrossen-Nethercott’s high-profile case exposed flaws in how the CPS evaluated unproven sexsomnia claims, leading to her pursuing legal action against them after her credible rape allegation was initially dismissed.

R. v. J.A

So in summary, this case did not involve sexsomnia as a defense, nor did the trial judge accept such a defense and acquit the accused. Rather, it centred on whether unconsciousness negates any prior consent given for sexual activity, with the Supreme Court ultimately ruling that it does.

  • In R. v. J.A., the accused (J.A.) and the complainant (K.D.) were in a long-term relationship.
  • During consensual sexual activity, K.D. consented to being choked by J.A., which caused her to lose consciousness for approximately 3 minutes.
    • While K.D. was unconscious, J.A. tied her up and performed additional sexual acts on her, including anal penetration with a dildo.
      • K.D. later reported that she did not consent to the sexual activity that occurred while she was unconscious.
  • The trial judge convicted J.A. of sexual assault, ruling that K.D. could not have consented while unconscious.
    • J.A. appealed the conviction, and the Ontario Court of Appeal overturned it, finding there was insufficient evidence to determine if consent was given in advance.
      • The case went to the Supreme Court of Canada, which had to determine if consent for sexual activity requires the complainant to remain conscious throughout.
  • The Supreme Court ruled 6-3 that an unconscious person cannot provide the required consent for sexual activity. J.A.’s conviction for sexual assault was restored by the majority.


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