‘Sexual sleepwalking claim destroyed my rape case’

A woman in the UK has had a rape lawsuit filed after experts claimed she could be suffering from a rare sleep disorder known as sexual sleepwalking.

Jade McCrossen-Nethercott’s rape case was dismissed by the Crown Prosecution Service (the British prosecutor, known as the CPS) because of allegations that she had an episode of the rare disorder, which is also known as “sexsomnia”. Because of this claim, the CPS no longer believed it could secure a conviction.

But Jade spent months contesting the decision. The CPS now admits that it was wrong to not take the case to trial and has apologized to her, but the laws prevent her case from being reopened, and she will no longer have a chance to seek justice.

But what went wrong? The BBC followed Jade’s case for months.

the case

It was a Sunday night in the spring of 2017 when Jade woke up on a sofa in a South London apartment and discovered that she was half-naked.

The 24-year-old reports that she had an intense sensation of having been penetrated and suspected that she had been raped in her sleep.

Three years later — and just days before the date the man accused of raping her was due to go on trial — lawyers for the CPS summoned her to an urgent meeting at a police station.

His case was being shelved before it reached trial. The CPS lawyer explained that two sleep experts had given their views on her case. They said it was possible that Jade had had an episode of sexual sleepwalking and might appear to be awake and consenting.

“Sexsomnia,” or sexual sleepwalking, is a medically recognized sleep disorder. People with the condition perform sexual acts while sleeping.

The law in England and Wales considers that a person has not consented to have sex while sleeping. But the same law also states that a person is not guilty of rape if he has “reasonable belief” that consent exists.

“It came completely out of nowhere, and it was disconcerting,” says Jade, who had never heard of sexual sleepwalking until then. “I’ve had two long-term relationships for 13 years, and I’ve never had anything like this.”

The CPS decision meant the case was dropped and the defendant acquitted.

The first time Jade was asked about her sleep was at the police station, when she went to give a formal statement.

In response to a question from a police officer, she explained that she was always a deep sleeper and sleepwalker a few times as a teenager.

It was just a passing comment, forgotten in the whole tiresome process.

It was Jade’s best friend, Bel, who called 911 and started the entire police process.

She remembers the sound of Jade’s voice on the other end of the line. “It was like nothing I’ve ever heard before. She was hysterical, sobbing, and saying ‘I think I was raped’. When your best friend says that to you, it’s just devastating.”

The two had gone out the night before to a bar in south London. It was a fun night where they drank and talked. When it was time for the bar to close, Bel ordered a cab home. Jade decided to head back to a friend’s apartment with some people for a last drink.

At around 2 am, with people still talking around her in the living room, she curled up under a blanket on the corner of the couch, fully dressed, and fell asleep.

At five in the morning, she says she woke up to find she had no pants on and her bra unbuttoned. She says that she saw a man on the other side of the couch she was lying on.

“I confronted him saying, ‘What happened? What did you do?’ And he said something that I thought was a little weird. He said, ‘I thought you were awake.’ And he just ran out and left the door open. And I took my phone and started calling Bel.”

Two male police officers arrived and took Jade straight for forensic examinations. Vaginal swabs detected semen that belonged to the man on the couch.

The suspect remained silent when questioned by police. The CPS made the decision to indict him for rape and he pleaded not guilty. The trial even had a date set, but never went ahead.

Jade was determined to prove the CPS wrong in dropping her case. But she had limited time to appeal.

She requested all the evidence — including police interviews, toxicology results, witness statements and reports from sleep experts. She was shocked by what she read — in particular by the weight given to the theories of sleep experts. None of them heard her personally, but those opinions were enough to close the case.

The first expert, who had been briefed by the defense, concluded that there was a “strong possibility” that Jade had had a sexual sleepwalking attack, saying that “her behavior would have been that of someone actively engaging in sexual intercourse, with eyes open.” and showing pleasure”.

The CPS then hired its own specialist. He concluded that “a history of sleepwalking, even once at age 16, and sleep talking or any family history is entirely adequate to establish a predisposition to sexual sleepwalking.”

Jade was shocked. She decided to hire another expert opinion and approached the London Sleep Centre’s doctor Irshaad Ebrahim, who has experience in giving advice in rape cases.

According to him, this was the first time he became aware of a case in which the alleged rape victim was accused of having sexual sleepwalking.

In every other rape case he encountered, the defendant was the one who claimed to have had a sexual sleepwalking attack.

The BBC conducted extensive research and could not find any other rape cases in the UK in which the defense argued that the alleged victim had sexual sleepwalking.

Ebrahim says there is no accurate way to diagnose sexual sleepwalking. But he said the people he sees with the disorder are typically male and tend to have a history of sexual behavior while sleeping.

Jade then underwent a sleep test — a polysomnography, which monitors brain waves, breathing and movement during sleep. The test indicated that she snores and has mild sleep apnea, a common condition where breathing stops and starts during sleep. Both are, according to Ebrahim, potential factors for sexual sleepwalking, so he cannot rule out that she may have had an isolated episode.

Jade wanted to know what the odds were that sexual sleepwalking had taken place that night. “That’s the billion-dollar question,” Ebrahim said. “Wanting a definitive answer, in black and white, is not going to happen.”

Jade still believed she didn’t have sexual sleepwalking — but was frustrated that sleep experts couldn’t rule it out.

She then looked for a lawyer to understand how the matter is handled in court. Allison Summers KC defended rape cases in which the accused man claimed to have sexual sleepwalking.

She told Jade that sleep experts are almost never able to definitively say whether someone has the condition, but saying “it’s possible” could be enough for a jury to reach an acquittal verdict.

“I think that, as a result of this, some culprits are acquitted? Yes, I do. But I would generally prefer it that way than convict people who are genuinely innocent for serious offenses,” she said. “The only thing I can say is that you hope the criminal trial process allows these genuine cases to be distinguished from less genuine ones.”

Sexual sleepwalking must always be strongly contested in court, according to CPS guidelines. But Jade’s case never made it to court.

Armed with her research, she filed her appeal. An independent chief prosecutor reviewed all the evidence again. He concluded that the case should have gone to trial and that the sleep experts’ opinions and the defendant’s account should have been challenged in court.

“I can’t even imagine what you’ve been through and how you feel. I’ve noticed during my review the devastating effect this case has on you,” he wrote Jade. “I apologize for this on behalf of the Crown Prosecution Service, although I recognize that this will likely be of little comfort to you.”

For Jade, the acknowledgment that her case should have been taken to a jury was not satisfactory because the CPS cannot reopen the case. The defendant has been officially found not guilty and therefore dual criminality laws mean he cannot be tried without convincing new evidence.

“There is no hope of justice for what happened to me,” says Jade. But she hopes the CPS will learn lessons to prevent others from having similar ordeals. “I’m disappointed in a system that’s there to protect — and they’ve clearly said they were wrong,” she says.

From September 2020 to the same month in 2021, only 1.3% of rape cases recorded by police in England and Wales resulted in a suspect being prosecuted, according to Home Office data.

The CPS says it is “committed to improving all aspects of how life-changing crimes such as rape are handled, and are working closely with law enforcement.”

Jade is now processing CPS.

This text was originally published here.