Courts in Sweden have come to different conclusions in recent years when alleged rapists have claimed to suffer from sexsomnia.
The condition came to national attention in 2014 when a suspected rapist in northern Sweden was cleared by an appeals court.
That decision was mainly motivated by the intervention of a doctor specializing in sleep disorders who said that the defendant could suffer from sexsomnia, a state in which a person can have sex asleep. The theory was confirmed by the man's previous partner.
With a number of similar cases cropping up in Sweden over the past decade, prosecutor Ginger Johannson has put together new guidelines together with a colleague at the prosectors office in Gothenburg.
“It’s a condition we know exists even if it can seem very strange. This means we have to take this explanation seriously,” she told the Dagens Juridik law magazine.
The report recommends that courts call on sleep experts whenever necessary.
Prosecutor are also advised to focus on how suspects appeared to victims at the time of the attack.
A court should pay special attention to testimony from a defendant stating that a suspect seemed groggy and confused or, conversely, appeared wide awake and fully conscious of what was happening throughout an alleged sexual assault.
“It’s important to establish as much as possible what was said and done at the time in question and to focus on that. That’s the main issue,” said Ginger Johansson.