An Alberta man who claimed he had no recollection of sexually assaulting his former wife on multiple occasions as he slept has been found not guilty.
The man — identified only by his initials in a decision from the Court of King’s Bench — labelled his condition “sexsomnia,” though his doctor “only used the term non-REM parasomnia” to describe the problem. The accused testified that “he has no memory of the incidents” where he slipped his hands inside his then wife’s underwear and tried to have sex with her on several occasions between July 1, 2018 and Oct. 1, 2019, though he did not deny they happened.
“On the one hand, this might be viewed as self-serving evidence, but in my view, (the accused) was very fair and forthright in his testimony when he indicated that he did not disagree with or dispute (his ex-wife’s) testimony as to the events that had occurred. He did not deny they had occurred either. He was simply unable to recall the events which is consistent with the possibility that he was not fully conscious during incidents in question,” Justice Ayla Akgungor wrote in a recent decision.
“In the circumstances, I am satisfied that there was a reasonable possibility that (the accused) may not have been fully conscious during the incidents in question such that his conduct was intentional. This means that I am not satisfied beyond a reasonable doubt that the Crown has established that (he) had the requisite intention to touch (his wife) as is required to establish the mens rea element of sexual assault.”
The Crown failed to prove he intended to sexually assault his ex, according to the July 17 decision out of Wetaskiwin, Alta.
“The law requires that I be satisfied that (the accused) is guilty beyond a reasonable doubt and in this case I am not so satisfied,” Akgungor said. “As a result, I must find him not guilty.”
The alleged sexual assaults came to light in December 2022 when the complainant went to the Mounties trying to regain custody of the couple’s children after the couple split up.
The court heard she usually went to bed before him.
She testified that, “on several occasions, in the latter half of 2018 and into 2019, she was awoken in the night as a result of (her husband) engaging in sexual acts with her while they were both in the marital bed,” said the decision. “She described incidents of vaginal, anal and digital penetration. All incidents occurred in the master bedroom in their home.”
The former couple “agree that on at least six occasions after the sexual acts occurred in the night, there were discussions the next morning about what had happened the night before. (She) would describe to (him) what had happened and (he) would respond that he had no recollection of doing those things and was entirely unaware of the incidents.”
They went to her therapist together in 2019 to discuss the problem.
“During the meeting, the therapist encouraged (her) to discuss the impact of the incidents on her. She did and (he) nodded to acknowledge what she was saying but maintained his lack of awareness. According to (her), at one point, he expressed not wanting to cause the harm that (she) was describing but he lacked any suggestion about how to create change in the circumstances.”
She eventually moved to a spare bedroom, said the decision.
The accused “confirmed that he apologized to (her) and remembered saying to her that he did not intend to do any of the things he did and that they were not something he was doing cognitively.”
When they were together, she testified that “the incidents of sexual assault that she experienced were happening between 3-5 times per week on average and that this went on for about four months.”
She described five incidents in detail, including one where “she woke up to (her husband) straddling her, on his knees with one leg on either side of her and removing her shorts and underwear. He was leaning forward with an erection trying to penetrate her. It happened so quickly that he did succeed in penetrating her anally, at which point she awoke more fully and was able to stop the action from continuing further.”
She found these actions “very alarming and frightening,” said the decision.
“Having gone through the prior incidents of unwanted sexual contact during the night, she was prepared on this occasion to react verbally. (She) testified that she pushed herself up away from the bed and started turning away and used her right hand to push him away. As she was pushing herself away, she stated along the lines of ‘what the hell are you doing?’ In response, (he) retreated, turned over to his side of the bed and proceeded to go to sleep as if nothing had happened.”
The couple separated in the fall of 2022, said the decision.
The court heard from the accused’s girlfriend since January 2023. “She testified that she has experienced incidents, when sleeping in the same bed as (him), where she was awoken by (him) having his hands on her genitals and rubbing her. The touching has always occurred on top of the clothing she was sleeping in.”
The girlfriend testified that she knows he’s “asleep during these incidents because he is breathing deeply, in a manner that is different than from how he breathes when he is awake. She stated that she nudges (him) away or removes his hands, rolls him away and they go back to sleep. In these circumstances, (he) rolls over with no resistance or discussion and that is the end of things.”
When that happens, “he generally has his eyes closed and his mouth open,” said his girlfriend. “He appears to her to be sleeping during these incidents.”
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