Unconditional discharge in Canadian "sexsomnia" case

In a fascinating criminal responsibility case, a Toronto man who was reportedly asleep when he sexually assaulted a woman six years ago has been unconditionally discharged as no threat to the public.

A trial judge had acquitted Jan Luedecke on the basis that he could not have formed the criminal intent to commit a sexual assault. The Ontario Court of Appeal quashed that ruling, saying Luedecke should have been found not criminally responsible due to a mental disorder. The case was then sent to the Ontario Review Board for a determination of Luedecke's dangerousness.

At trial, evidence was presented that a sleep clinic had confirmed Luedecke's sleep disorder, along with a family component (both his mother and brother have sleep disorders). Under the defense theory, his sleep disorder manifested in "sexsomnia," or sexual behavior while asleep. According to trial testimony, he had "sleep sex" with four former girlfriends prior to the assault. The assault took place at a house party after he ingested magic mushrooms and consumed 16 alcoholic drinks; he was also working long hours without sleep.

"The combination of those intoxicants and his sleep disorder brought on the illness," his lawyer, Frank Addario, president of the Criminal Lawyers' Association, was quoted in the Toronto Star as saying. As the assault was described in the press:

The woman woke up to find a strange man lying on top of her, engaged in sexual intercourse.

"Who the hell are you and what are you doing?" the woman demanded

"Jan," the bewildered-looking man replied.

Under Canadian law, the options available to the review board included commitment to a hospital, release to the community under specified conditions, or absolute discharge.

The board relied heavily on risk assessments conducted by forensic psychiatrist Lisa Ramshaw and forensic psychologist Percy Wright. Dr. Ramshaw noted that Luedecke was ashamed and remorseful, making him "less likely to repeat the behaviour." (Although that is popularly believed, I'm not sure it's an empirically supported contention.) Dr. Wright reported that Luedecke had taken steps to control his sexsomnia, including reducing his stress, limiting his alcohol consumption to two drinks a week or less, and sleeping "safely" with no access to women who aren't his partner.

In granting Luedecke a full discharge, the board noted that he had been living free in the community for six years without incident.

I have no problem with the sleep disorder or the role of intoxication. But, oddly enough, Luedecke was reportedly wearing a condom during the assault. How does that little factoid fit in to the somnambulism theory?

I guess anything is possible.

The Globe and Mail, Toronto Star and CBC News have more case coverage.