20 years ago, "Unsolved Mysteries" had a segment over a man who was "sleepwalking" when he ran over to his mother-in-law's home and killed her. I believe he got acquitted.(his in-laws were against him, but his wife supported him)
http://www.thestar.com/news/crime/2015/07/06/retrial-ordered-in-sexsomnia-case.html7/6/15
Retrial ordered in ‘sexsomnia’ case
Man convicted of sexual assault wins a new trial with an unusual defence: He was asleep at the time.A Brockville area man will face a new trial for sexual assault after Ontario’s top court found that it’s worth considering whether the man committed the act while he was asleep.
It’s the sexsomnia defence.
Ryan Hartman was convicted by an Ontario Court judge in 2012 of sexually assaulting a woman at a house party and later sentenced to 14 months’ imprisonment and three years’ probation. He testified at his trial that he never assaulted the woman.
But his position changed at the Court of Appeal, where he admitted that he did it, but that he was in a “parasomnic state,” which he backed up with evidence from a forensic psychiatrist.
In a rare move, the three-judge panel allowed the new evidence and defence in a decision released Monday, and ordered that Hartman face a new trial so that he can be found either guilty or not criminally responsible due to a mental disorder.
“New defences advanced years after the relevant events, only when other defences have been tried and failed and the convicted offender stands at the prison gate, must be viewed with considerable judicial suspicion,” Justice David Doherty wrote for the panel.
“However, there will be cases in which the interests of justice require that an appellant be allowed to present a new defence on appeal … This is one of those rare cases.”
Hartman, 35, has so far only spent about two months of his sentence in jail, having been granted bail on several occasions as his appeal moved through the process.
“I’m pleased that the Court of Appeal took such a careful look at the evidence presented,” said his appeal lawyer, Danielle Robitaille, who did not represent him at trial.
The sexsomnia defence is not new, although it is uncommon.
“For one thing, there are not a lot of sexsomniacs,” said criminal defence lawyer Daniel Brown, who is not involved in the case. “And the other thing is that as an available defence, it leads a person basically to be found not criminally responsible by reason of a mental disorder, and so it subjects them to a potentially indefinite period in custody … It isn’t a complete acquittal.”Hartman had quite a bit to drink one night at a house party in 2011 and ended up spending the night, falling asleep in front of the television, according to the appeal court ruling. He did not know the complainant, identified in the ruling as R.C., who fell asleep with her boyfriend on an air mattress in the kitchen.
She woke up feeling pain in her anus, and realized that her pants had been pulled down. She soon identified the person behind her who had his hand on her hip as Hartman. She testified at trial that she told police Hartman “was just pretending like he was sleeping” when she awoke.
Robitaille told the Star she pursued the sexsomnia defence after reading the evidence of the complainant, who had said Hartman was snoring at the time of the assault.
She was familiar with the defence because of the famous case of Toronto landscaper Jan Luedecke, who successfully argued sexsomnia all the way to the Court of Appeal after sexually assaulting a woman at a house party in 2003.
The Ontario Review Board, which reviews the status of individuals found to be not criminally responsible, found in 2009 that Luedecke does not pose a significant risk to the community and gave him an absolute discharge.
At Hartman’s appeal, Robitaille presented the expert evidence of Dr. Julian Gojer, whose reports were based on several factors, including a family history of sleepwalking; that Hartman’s girlfriend reported he had engaged before in sexual activity while asleep; that alcohol can be a trigger for parasomnia; and that some circumstances of the assault were apparently consistent with Hartman being asleep.The Crown presented evidence from its own expert, Dr. Mark Pressman, to counter the defence. The court did not say it accepted Gojer’s evidence as fact, leaving that up to the trial court as it ponders a verdict.
“It would be for the trial court to decide whether Dr. Gojer’s evidence should ultimately be accepted. I think the appellant has cleared that hurdle,” Doherty wrote.
