The 'sexsomnia' defense is catching on for Canadians accused of sex assault

A man found guilty of molesting his sister has been granted a new trial because he might suffer from sexsomnia, a judge in Newfoundland ruled on Tuesday.

Sexsomnia is a medical condition that causes people to involuntarily exhibit sexualized behavior while sleeping. This can range from touching to intercourse.

Judge Kendra Goulding overturned the conviction of the man — whose identity is being protected under a publication ban — arguing in a 16-page ruling that new evidence about his disorder could show that he was asleep during the alleged the offence, and therefore wasn't aware of what he was doing.

This new evidence includes a report by a forensic psychiatrist who interviewed the man after he was convicted of "sexual interference" in 2013, for which he served five months in prison.

The psychiatrist told the court that the man had many of the signs of a sexsomniac, and was suffering from sexsomnia at the time of that alleged sexual offence.

This isn't the first time sexsomnia has been successfully put forward as a defense in sexual assault cases in Canada — although it's rare. Last July an Ontario man also had his sexual assault conviction overturned and a new trial granted after the province's top court ruled that he may have suffered from sexsomnia during the act.

That man, Ryan Hartman, was found guilty in 2012 of sexually assaulting a woman during a drunken night at a party and was sentenced to 14 months in prison. Throughout the lower court proceedings, he claimed he never assaulted her, but changed his tune during the appeal, when he claimed to have suffered from a sleeping disorder.

And in 2003, a well-known Toronto landscaper used the sexsomnia defense in his case, and was found not criminally responsible for sexually assaulting a woman at a house party because of the disorder. In 2009, the Ontario Review Board ruled that he was not a threat to society, and granted him an absolute discharge in the matter.

In that case, the court heard that he had "sleep sex" with four former partners before that assault took place.

Advocates against sexual violence have criticized the use of sexsomnia as a defense in sex crimes, and have questioned whether it is a legitimate disorder. In 2011, a sleep forensics expert told Salon he was worried about the disorder being misrepresented in certain court cases.

In 2010, Canadian researchers presented a study that found one in 12 people admitted to engaging in sexual activities while they were asleep.

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