Drunken sleepwalking successful defence for indecent assaults

A Wellington man has had two charges of indecent assault dismissed asking claiming a defence of sleepwalking after getting drunk. He has a prior conviction for indecent assault in similar circumstances.

I thought our courts had moved away from allowing drunkenness as an excuse for crimes.

The police considered appealing but Crown has decided against it.

Herald on Sunday: Sexomnia defence sees man walk on indecent assault charges

A judge has dismissed indecent assault charges against a man, accepting he was sleepwalking at the time after getting drunk.

The Herald on Sunday can finally reveal the story of Tristan Corey Scott after fighting to have his name suppression lifted.

But the mother of the two teenage girls who were indecently assaulted in the latest case told the Herald on Sunday the verdict was “atrocious”.

I can understand her response.

The teenage girls, who were sleeping in separate bedrooms, gave evidence that they awoke to find Scott in their rooms, touching their legs, according to court documents.

He and his partner had spent the night socialising with the parents of the complainants at their home.

The court heard that Scott, who lives in Wellington and works in IT, had been drinking heavily.

It is the fifth known case where sleepwalking or parasomnia has been used as a defence in a New Zealand court and it is cropping up more around the world.

Could this be used as a defence in more serious crimes, like rape and murder?

Scott has prior form.

Scott, 35, has a previous indecent assault conviction from 2011 after pleading guilty to molesting a woman who was also asleep in her bed. He had been drinking alcohol prior to the incident.

This and a third alleged instance that did not result in charges, in which Scott entered a darkened house uninvited, were cited by police as showing a propensity to enter rooms where women were sleeping.

That’s certainly how it looks. And now he has a legal excuse for this behaviour.

Expert evidence about the condition was given by a sleep specialist who Scott had approached for treatment.

District Court judge Jim Large found that the girls were indecently assaulted by Scott, but dismissed the charges saying he was not conscious of what he was doing because he was in a state of automatism by way of parasomnia, caused by excessive drinking.

The judge said he found the complainants to be reliable witnesses and was sure that Scott committed the acts they described.

Automatism is a legal term meaning the performance of actions without conscious thought or intention.

Parasomnias are a group of sleep disorders of which sexomnia is one. Sometimes called sleep sex, sexomnia is similar to sleepwalking but causes people to engage in sex acts.

I see two problems with this.

One is that people can be held not responsible for what they do when sleepwalking.

The other is that as this defence has been successful it could lead to more claims of sleepwalking while offending.

Police told the girls’ mother that the prosecutor took issue with aspects of the decision relating to parasomnia and wanted to appeal to the High Court but following a review by the Deputy Solicitor General this did not proceed.

There must have been good reasons for not appealing, but this leaves concerns.

Scott can be named following a decision in May by Judge Large dismissing Scott’s application for permanent name suppression. Scott did not seek name suppression during the trial but did so after the Herald on Sunday approached the court for information.

Good work by Herald on Sunday – if Scott has a habit of indecently assaulting women and girls after drinking then people who associate with him should at least be given fair warning of the risks.

Another problem with the verdict is that there seems to have been no Court requirement that Scott address his problem with heavy drinking. If he has a tendency to sexually assault people after drinking then he shouldn’t drink.

Leave a comment

16 Comments

  1. Gezza

     /  July 9, 2018

    I wonder if a few smacks in the head by an outraged parent or partner would cure his sexsomnia?

    Reply
  2. Traveller

     /  July 9, 2018

    I think that as aa a yet to collect a pension oldie I am fast becoming too old for this world and how society’s changing values are expressed in the media and in legal judgement.

    To me this is horrifying apologism for drunkenness and perversion. Anyone else?

    Reply
    • Gezza

       /  July 9, 2018

      I tend to agree & I also wonder if a few kicks in the knackers before the cops get there might also be productive therapy for this gentleman.

      Reply
      • Kitty Catkin

         /  July 9, 2018

        It is a genuine condition. Sleepwalkers do odd things. Some people can’t fly because they have ‘sexsomnia’ and humiliate themselves with their actions when they are asleep, like climbing onto the person next to them and…well, you can imagine.

        Reply
  3. NOEL

     /  July 9, 2018

    “It is the fifth known case where sleepwalking or parasomnia has been used as a defence in a New Zealand court and it is cropping up more around the world.”

    Were all cases associated with drunkenness?

    Reply
    • Kitty Catkin

       /  July 9, 2018

      It’s a genuine condition, and is not connected with drunkenness, as people also do these things when they are sober. Some people cook and eat meals in their sleep.

      I first read about people who do sex-related things in their sleep years ago. I’d have to say that leg stroking is at the lower end of sex crimes, as there seems no suggestion that the hands wandered further up.

      Reply
  4. Zedd

     /  July 9, 2018

    I had a mate who reportedly sleep walked when he was drunk.. but the worst thing I hear he did was ‘use a laundry basket (full of washed clothes) as a toilet’..
    BUT I have also heard of people driving in this condition, so anything is possible ?

    Reply
    • Gezza

       /  July 9, 2018

      My tuakana used to regularly sleepwalk for a pee when he was a teenager, but fortunately to the loo. He’d then return to bed. You could talk to him if you encountered him doing it without him waking, but he wouldn’t necessarily make sense in his reply if any, & he would have no recollection of the event when he woke up in the morning.

      Reply
      • Zedd

         /  July 9, 2018

        apparently my mate.. only did it when he had been drinking.. :/

        Reply
        • Kitty Catkin

           /  July 9, 2018

          Someone in the UK killed his wife when he was sleepwalking, I seem to remember.

          Reply
          • Gezza

             /  July 9, 2018

            Seems there’s been quite a lot of it about over the years:

            Reply
            • Kitty Catkin

               /  July 9, 2018

              I first read about the sexsomnia thing quite a few years ago, and how unfunny it is for the people who have it.

              In the case of this man, if alcohol is the trigger, it would be fair enough to make him commit himself to some sort of rehab, for his own sake and that of other people who are on the receiving end. If he does it again while he’s drunk, he would be considered to be responsible.

  5. Blazer

     /  July 9, 2018

    National thought they would sleepwalk to the Treasury benches last year…they are now wide…awake!

    Reply
  6. NOEL

     /  July 9, 2018

    Appears it not clear cut here. Can see why the prosecutors wanted to challenge. Shame they were denied might have served Justice better.
    https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4957201/

    Reply
    • Kitty Catkin

       /  July 9, 2018

      Nothing much happened, why waste more time and taxpayers’ money ?

      Reply

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