A MAN WHO claims he was acting in his sleep when he allegedly raped his friend is guilty if those actions were caused by alcohol, a judge has said.
The 29-year-old man has conceded he might have had sex with the woman but claims he was suffering from sexsomnia at the time, a rare condition that causes people to carry out sexual acts while asleep.
The man and woman had been at a nightclub that night and he had consumed several drinks and a naggin of whiskey before they returned to a friend’s house to sleep.
The accused 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.
During his closing address to the jury, Mr Justice Patrick McCarthy said the defence had raised the prospect of automatism, meaning the accused committed the act but was not in control and was “acting like a robot”.
He said that “no act is punishable if done involuntarily, according to law”. Examples of automatism could include doing something while sleepwalking and or with a concussion he said.
Consent
Justice McCarthy said it was up to the prosecution to prove the accused knew the woman wasn’t consenting to sex or to prove he was reckless about whether she was consenting.
He said that if the accused was in a state of sexsomnia at the time but that it was caused by alcohol, “he is not entitled to an acquittal”. He said that if alcohol was this cause “the law says tough, too bad”.
Justice McCarthy will finish summarising the evidence for the jury tomorrow morning after which deliberations will begin.
A jury of seven men and four women will decide the case after one male juror was excused to attend a wedding.
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