IT IS MORE likely that a man was drunk rather than sleepwalking when he allegedly raped his friend, a jury has been told.
In its closing speech to the jury, the prosecution rejected the 29-year-old defendant’s claim that he was suffering from sexsomnia at the time, a rare condition that causes people to carry out sexual acts while asleep.
The man, who cannot be named for legal reasons, has pleaded not guilty at the Central Criminal Court to one count of raping the woman at an apartment in Dublin in the early hours of 28 September, 2008.
The woman told the trial she was sharing a bed with the man after a night out when she woke up to him having sex with her.
Patrick McGrath SC, prosecuting, said there were two options which were more likely than sexsomnia. First, that the accused had lowered inhibitions because of the amount he drank that night.
Counsel said it was an “obvious possibility” that alcohol caused him to rape the woman and told the jury this did not count as a defence. Offences committed because of the consumption of alcohol were still offences.
Counsel said the second possibility was that the accused knew exactly what he was doing, but regretted it later and tried to justify it by saying he was sleepwalking.
The prosecution said the accused’s actions during and after the incident formed a significant weakness in the case.
The woman told the trial she woke to find the accused had pulled up her tight skirt and pulled her underwear aside before having sex with her.
She alleged she asked him if he was wearing a condom. He replied that she could get the morning after pill. There was further discussion of the pill after she pushed him off, she said.
McGrath said these words and actions were evidence of “complex, sequential, goal-orientated” acts which showed the accused was conscious and therefore guilty of rape.
“His words were miles away from mutterings and gibberish which are what you would expect from a sleepwalker,” counsel said.
Sexsomnia
McGrath asked the jurors to imagine they were in the room that night and witnessed the incident and the conversations between the man and woman.
“If there had been no introduction of sleepwalking, what would have happened would have been obvious. It would have been rape,” he said.
Referring to defence evidence that the accused groped and grinded against his girlfriend and friends in the past while asleep, counsel said these instances were very different to the alleged rape because no attempted sexual intercourse occurred during them.
McGrath also noted that while there were text conversations between the accused and the victim in the days after the incident, he didn’t mention sleepwalking until three days later.
In his closing speech, defence counsel, Hugh Hartnett SC, said he had the greatest sympathy for the victim.
“What happened on that night was a terrible thing, it should never have happened,” he said. “But this is not a case of making it up to her.”
‘Abnormal deep sleep’
He said the jury must decide on the accused’s state of mind during the incident and must rely on expert evidence it had heard about sexsomnia.
He said the defence had called two witnesses with 30 years experience each in the field who both said it was likely the accused was acting in his sleep.
In contrast, the prosecution called a psychologist who hadn’t worked in a sleep clinic since 1985 and was not an expert in the area, Mr Hartnett said.
He said the defence had shown that subjects could carry out complex actions during sleep. This was a result of a fracturing between the upper and lower parts of the brain causing motor action to occur without intent.
He addressed a contention by the prosecution expert, Dr Harry Kennedy, that it seemed physiologically impossible for someone to get an erection during normal deep sleep. He said his client was in an abnormal deep sleep.
Mr Hartnett cited the “bible” of psychological conditions, the DSM 5 handbook, which states sexsomniacs can engage in a variety of sexual behaviour including intercourse.
He told the jury it was up to the prosecution to prove guilt beyond a reasonable doubt and to prove beyond a reasonable doubt that this wasn’t a case of sexsomnia.
The trial continues tomorrow when Mr Justice Patrick McCarthy will address the jury of eight men and four women.
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