ANALYSIS AND COMMENTARY Sexsomnia as a Defense in Repeated Sex Crimes

Amir Mohebbi, MD, Brian J. Holoyda, MD, MPH, MBA, and William J. Newman, MD

Sexsomnia and related sexual behaviors during sleep may be diagnosed in individuals accused of sex crimes. Although sexsomnia is now formally recognized in the DSM-5, the variable presentation of such behaviors and the possibility of malingering in medicolegal situations can cause challenges for forensic evaluators and legal profes- sionals alike. Review of the literature reveals a paucity of cases involving allegations of repeated incidents due to abnormal sexual behaviors or experiences in sleep. It is important for experts involved in such cases to understand how the courts have responded to sexsomnia defenses involving diverse alleged incidents. The authors review the case law and discuss methods of examining evaluees with suspected sexsomnia in cases of alleged .

J Am Acad Law 46:78–85, 2018

Sexsomnia has garnered attention internationally af- which multiple sex crime charges were alleged and ter defendants in sexual assault cases have suggested forensic evaluations were conducted. that sleep disorders led to their alleged crimes. Foren- Hurwitz et al.1 first reported abnormal sexual be- sic examiners have the difficult task of evaluating the havior during sleep with diverse alleged incidents in defendant’s level of and volitional 1989. Their series highlighted three cases, one of criminal intent during these incidents. This involves which involved multiple incidents. The case involved examining evidence as to whether an underlying a severely obese male with obstructive is the basis for the criminal behavior. (OSA) who was accused of two episodes of sexual A review of the literature demonstrates that sex- abuse against his 10-year-old stepdaughter. The legal somnia has been described in a variety of medicolegal outcome of this case was not reported. contexts over the past three decades, but there is lim- Fenwick2 reviewed sexual offending during sleep- ited information in the literature about cases involv- walking in 1996. He described the history of sexual ing sexsomnia, with diverse alleged incidents. There behavior during in case reports. Fedor- have been no studies examining whether repeated off et al.3 later described “sleep sex” in reference to a sleep-related sexual incidents are less likely than sin- case involving sexual behaviors during sleep. The gle incidents. The lack of knowledge on this issue term “sexsomnia” was not coined until Shapiro et al.4 creates a challenge for forensic evaluators who may be tasked with evaluating claims that an individual re- published a case series in 2003 featuring 11 patients peatedly engaged in sexual assault because of a sleep with sexual behaviors during sleep. They described disorder. In this article, we review the United States the hallmark feature of sexsomnia as “frequently case law involving sexsomnia and related defenses in present sexual with autonomic activation” during sleep (Ref. 4, p 315). Dr. Mohebbi is a General Psychiatry Resident, Dr. Holoyda is Assis- The American Psychiatric Association has now in- tant Professor of Psychiatry, and Dr. Newman is Associate Professor of cluded the diagnosis of sexsomnia in the Diagnostic Psychiatry and Training Director of the Forensic Psychiatry Fellow- ship Program, Department of Psychiatry, Saint Louis University and Statistical Manual of Mental Disorders, Fifth School of Medicine, St. Louis, MO. Address correspondence to: Amir Edition (DSM-5).5 The DSM-5 identifies sexsom- Mohebbi, MD, Department of Psychiatry, St. Louis University School of Medicine, 1438 South Grand Boulevard, St. Louis, MO 63104. nia as a “specialized” form of sleepwalking under the E-mail: [email protected]. classification of non–rapid-eye-movement (NREM) Disclosures of financial or other potential conflicts of interest: None. sleep-arousal disorders and defines it as: “varying de-

78 The Journal of the American Academy of Psychiatry and the Law Mohebbi, Holoyda, and Newman grees of sexual activity (e.g., , fondling, viewed Canadian case law involving sexsomnia and groping, ) occurring as complex did not report cases with repeat offenses. behaviors arising from sleep without conscious Schenck19 published an update on sexsomnia and awareness” (Ref. 5, p 401). Minimal dream imagery sleep-related seizures and their forensic implications. is recalled, and for the episode is present. Schenck identified 94 cases of sexsomnia in the liter- However, establishing the diagnosis of sexsomnia ature from nine different countries (United States, can be difficult, as various sexual activities during Spain, Holland, Italy, France, Turkey, Australia, sleep have been described in different contexts.6–16 Brazil, and United Kingdom). Of these cases, four 6 Schenck et al. first classified sleep-related disor- were related to Parkinson’s and omitted from analy- ders associated with abnormal sexual behaviors in sis. Of the remaining 90 cases, the offender was male 2007. They concluded that sexual behaviors occur- in 82 percent; the mean age of onset was between 32 ring in sleep are related to a broad range of underly- and 35 years; amnesia was reported 97–98 percent of ing neurologic, medical, psychiatric, and primary 7 the time; aggression and violence occurred in 32 per- sleep disorders. Marca et al. published a case study of cent; and legal consequences were involved in 14 three individuals that further demonstrated the vari- percent (Ref. 19, p 529). Of the 14 percent of cases able presentation of abnormal sexual behaviors in involving legal consequences, only the case originally sleep disorders. They concluded, “the observation of reported by Cicolin et al.8 makes mention of re- automatic, unconscious sexual behaviors during peated offenses. sleep in patients with different sleep disorders To date, the only known study of United States (OSAS, arousal disorders, RBD) confirms that sleep criminal cases involving a potential sleep disorder sex may not be unequivocally linked to a peculiar was an abstract presented by Bornemann et al.,20 in sleep stage” (Ref. 7, p 3494). Accordingly, these pa- 2014. The authors identified 262 cases, of which 50 tients may present with heterogeneous polysomno- percent involved . Sexsomnia was the graph findings. most common type of , present in 39.3 Multiple comorbid sleep disorders may be present percent of all the cases. About 39 percent of the cases in patients with abnormal sexual behavior in their involved male defendants aged 18 to 55 years; 37.8 sleep. Cicolin and colleagues8 reported two cases of parasomnia overlap disorder (POD), or situations in percent of the cases involved female victims, aged which patients present with REM sleep behavior dis- 3 to 17 years. The victim knew the defendant in 86 order, NREM sleep parasomnia, and sexual behavior percent of the cases. The authors did not mention documented by video . One of whether these cases involved repeated alleged incidents. these cases was notable for involving a male with a 21 history of sleepwalking and REM behavioral disorder Bornemann, later described a case with multiple who was charged with fondling a young girl on sep- alleged incidents. G.D., a 34-year-old man, was ac- arate occasions. POD was documented by polysom- cused of repeatedly molesting his 12-year-old step- nography and the patient successfully put forth a daughter (L.K.). He reported a history of sleeptalk- sexsomnia defense that resulted in acquittal. This ing and two episodes of sleepwalking as a child. He case is one of few documented sexsomnia cases in the was drinking vodka on the evening in question. literature involving repeat offenses in which a legal G.D.’s attorneys consulted a expert to outcome was reported. develop a sleepwalking defense. The outcome of this Ingravallo et al.17 performed the first review of case was not reported. legal cases involving violence and sexual behavior in Despite the sleep expert community’s interna- sleep, examining cases reported in the literature from tional acceptance of sexsomnia as a legitimate diag- 1980 to 2012. The authors identified nine cases of nosis, the legal community remains skeptical of crim- sexual behavior in sleep with charges ranging from inal defendants who put forth the diagnosis in court. sexual touching to . All cases involved male de- Badawy22 states, “Testimony about unproven condi- fendants. The victims in these cases were unrelated tions like sexsomnia can be challenged on its validity young females. Of the nine persons, only one was and lack of acceptance in the general medical com- identified with repeat offenses, which was first re- munity under Frye or Daubert”23,24 (Ref. 22, p 6). ported by Cicolin et al.8 Organ and Fedoroff18 re- This stance may pose challenges to the individual

Volume 46, Number 1, 2018 79 Sexomnia as a Defense in Sex Crimes alleging a sexsomnia defense, as well the forensic ex- episodes and that he occasionally would sit up and aminer tasked with evaluating such cases. bark out an order that she could not understand. Defense expert, Clete Kushida, MD, was retained the day before he testified and did not conduct any Existing Case Law Descriptions interviews or clinical examinations. He presented The objective of this review is to identify existing literature and general information regarding sleep cases of sexsomnia, or related sleepwalking disorders, disorders. The jury found Mr. Ellington guilty of involving instances of multiple alleged sex crimes. one count of oral copulation for the alleged of- We searched the LexisNexis database25 for all re- fenses against both victims, but was unable to ported U.S. federal, state and territories cases. The reach a verdict on the other counts and enhance- term “sexsomnia” yielded 10 cases, “sleep sex” ment charges. Subsequently, the court declared a yielded 8, “sleepwalking and rape” yielded 86, and mistrial as to those counts and the enhancement “sleepwalking and sex” yielded 109. There was over- allegations were stricken. lap in the results of the various searches. We included Before sentencing, Dr. Kushida performed a sleep cases involving multiple alleged sexual incidents in study on Mr. Ellington, who motioned for a new which the defendant received a diagnosis of a sleep trial. The defense presented Dr. Kushida’s report disorder and a forensic evaluation was conducted. from polysomnography, which demonstrated “non- We excluded many of the cases identified during specific subtle indications” that required further in- the search for several reasons. First, most of the cases terview and evaluation (Ref. 26, p 11). The court included the terms sexsomnia, sleep sex, sleepwalk- denied Mr. Ellington’s motion for new trial as they ing and rape, and sleepwalking and sex in the case determined that the meager evidence of “nonspecific footnotes in descriptions of existing case law. Sec- subtle indications” would not have any impact on the ond, we excluded cases that involved only a single result of the trial. The appellate court affirmed the alleged incident. We also excluded cases that did not judgment. Mr. Ellington was sentenced to six years. involve a forensic evaluation. We ultimately identi- fied eight cases that met our criteria for review. United States v. Brady People v. Ellington U.S. Air Force Chief Master Sergeant (SMsgt) Steve Brady27 was charged with two specifications of In People v. Ellington,26 Joseph Ellington was committing an indecent act upon a female under 16 charged with six counts of lewd acts on a child under years of age on multiple occasions. The daughter age 14. Mr. Ellington’s family history was notable for sleepwalking in his daughter. He had no prior crim- (A.S.) of SMsgt Brady’s girlfriend testified that he inal history and used marijuana chronically. came into her bedroom wearing nothing on five occa- The first victim (A.), a nine-year-old friend of Mr. sions. On one occasion SMsgt Brady pulled her hand Ellington’s daughter, testified that he put his hand into his “private area” (Ref. 27, p 3). On another occa- inside her (A.’s) clothing on several occasions. A sec- sion, he inserted his finger into her anus. A.S. was nine- ond victim (K.), another nine-year-old friend of Mr. years-old at the time of the alleged incidents. Ellington’s daughter, testified that he pulled down SMsgt Brady called his mother and two ex- her (K.’s) tights and panties and put his finger on her girlfriends as witnesses. Through witness testimony “privacy” (Ref. 26, p 1). K. testified that Mr. Elling- he established that he had an extensive history of ton had touched her in the same two places on an- sleepwalking dating back to childhood. His female other occasion when she stayed overnight with his partners also testified that he would initiate sex while daughter. asleep. SMsgt Brady testified that he never knowingly Mr. Ellington testified that he sat next to K. and sexually abused A.S. An unnamed expert on sleep dis- subsequently fell asleep. He stated that he did not orders conducted his forensic evaluation. The expert recollect what happened. Mr. Ellington’s wife de- opined that “[SMsgt Brady] is, in fact a sleepwalker, scribed him as a restless sleeper who would wake up that it is possible to engage in a variety of behaviors violently if startled. She testified he would sometimes while sleepwalking, and that it would be very difficult to make sexual advances in his sleep. She reported that tell whether [SMsgt Brady] was sleepwalking on the he did not respond when spoken to during these night he was found in AS’s bed” (Ref. 27, p 3).

80 The Journal of the American Academy of Psychiatry and the Law Mohebbi, Holoyda, and Newman

SMsgt Brady was found guilty of two charges of An officer panel sitting as a general court martial committing an indecent act upon a female under 16 found SSG Livengood guilty. He appealed and as- years of age. On appeal, the court affirmed the find- serted that the military judge abused his discretion by ings as to one charge but set aside the other charge. excluding expert witness testimony concerning his The court returned the record of trial for remand to alleged confusional arousal disorder. The appellate the convening authority. SMsgt Brady was given a court determined that the judge correctly analyzed dishonorable discharge and sentenced to confine- the requested expert testimony using the standards in ment for two years and a reduction in military status. Daubert v. Merrell Dow Pharmaceuticals, Inc.,24 and United States v. Houser34 and found that he did not United States v. Livengood abuse his discretion. The court affirmed the guilty U. S. Army Staff Sergeant (SSG) Dewayne Liven- verdict and sentence. SSG Livengood was given a good28 was charged with false official statement, car- dishonorable discharge, and sentences to confine- nal knowledge on multiple occasions, and commit- ment for five years, forfeiture of all pay and allow- ting indecent acts upon a female under the age of 16 ances, and reduction in military status. on multiple occasions. SSG Livengood was accused State v. Scott of several incidents of molesting his intellectually dis- 29 abled daughter (C.L.). He engaged C.L. in sexual Adrian Scott was charged with three counts of intercourse, fondled her breasts and private areas, sexual battery by an authority figure and two counts and kissed her in a sexual manner, usually while in his of rape of his stepdaughter. Mr. Scott’s stepdaughter own bed. C.L. was 14 years old during the time of the reported that he fondled her groin while the family alleged incidents. was sleeping in close quarters. On other occasions, SSG Livengood did not testify at trial. He initially she reported similar behavior when he had fallen denied ever inappropriately touching, having sexual asleep in her room. Mr. Scott reported no recollec- intercourse with, or kissing C.L. on the lips. He later tion of this behavior. The victim was between 13 and submitted the following written statement, “Con- 18 years of age during the alleged incidents. cerning the touching of my daughter’s private parts Sleep medicine expert, J. Brevard Haynes, MD, described in the first statement, the only time I felt conducted a forensic evaluation of Mr. Scott. Dr. my daughter’s vagina was I reached over thinking to Haynes interviewed Mr. Scott’s spouse, who re- have sex with my wife and I felt clothing. This oc- ported that he had fondled her vagina while asleep on curred approximately 4 or 5 times” (Ref. 28, p 5). several occasions without recollection. Dr. Haynes In SSG Livengood’s forensic evaluation, Boris performed polysomnography and a mean sleep la- Kaim, MD, a sleep expert, conducted two polysom- tency test, which failed to show aberrant sexual be- nographs. He opined that SSG Livengood carried the haviors during sleep. Dr. Haynes opined, “[S]exual diagnoses of insomnia, confusional arousal, peripheral behavior in sleep parasomnia is the explanation for neuropathy, sleep talking, dyskinesia, and crossed dom- [Mr. Scott’s] touching of his stepdaughter” (Ref. 29, inance and had a history of dyslexia. He ruled out som- p 6). He testified that the basis of his opinion was due nambulism, REM behavior disorder, and sleep apnea. to the following The judge conducted a Military Rules of Evidence (1) [Mr. Scott’s] history of night terrors and sleep walking, (2) he has exhibited similar behavior with his wife, (3) his balancing test and determined that “the probative behavior is in keeping with that reported in other individ- value of Dr. Kaim’s proffered expert testimony was uals with this parasomnia, (4) there is no history of vaginal substantially outweighed by the unfair prejudice as- foundling [sic] during wakefulness, (5) this behavior is not sociated with its unreliability” (Ref. 28, p 7). The in keeping with his character” [Ref. 29, p 6]. judge held that the defense presented insufficient ev- The state filed a pretrial motion in the criminal idence as to whether the theories and techniques used court for Davidson County, Tennessee, to exclude by Dr. Kaim could be and had been tested. The expert testimony. The trial court determined that the defense presented no evidence about the techniques expert testimony was not sufficiently trustworthy that Dr. Kaim used in his evaluation, whether such and reliable to be presented to the jury. A Davidson techniques were ever subjected to peer review, or that County grand jury found Mr. Scott guilty on all five the diagnosis of confusional arousal was widely ac- counts. This case reached the Supreme Court of Ten- cepted in the scientific community. nessee. The court determined that the trial court

Volume 46, Number 1, 2018 81 Sexomnia as a Defense in Sex Crimes erred by excluding Dr. Haynes’ testimony regarding People v. Hurtado sexsomnia, and the judgment was reversed and Anthony Hurtado31 was charged with four counts remanded. of committing a lewd or lascivious act on a child under age 14. His defense stated that he was asleep State v. Hutchinson and intoxicated and had sexsomnia during the al- Jonathan Hutchinson30 was charged with 14 leged incidents. Mr. Hurtado had no prior diagnosis counts from multiple alleged incidents and four of sleepwalking or family history of sleepwalking. counts of second-degree endangering the welfare of a Mr. Hurtado’s son (A.H.) testified that his father child. His girlfriend’s 15-year-old daughter (C.D.) touched his penis approximately five times while the awoke to find the defendant in her bed with his fin- two were on the couch at night. A.H. stated that he ger inside her vagina. Months later C.D. awoke to knew Mr. Hurtado was awake because he noticed his find Mr. Hutchinson in her bed and touching her eyes were open. A.H. was seven to nine years of age vagina with his penis. Per C.D., Mr. Hutchinson during the alleged incidents. Mr. Hurtado’s nephew proposed vaginal intercourse with C.D., which she (N.E.) testified that his uncle touched his “private refused. Mr. Hutchinson testified that he woke up, part” while riding home from a family party in a van not knowing where he was, and subsequently real- (Ref. 31, p 1). N.E. was five years old at the time of ized he was in C.D.’s bed. She told him to get out, the alleged incident. At trial, Mr. Hurtado denied and he apologized and left. ever molesting N.E. or touching A.H. in a sexually Both the defense and prosecution obtained expert inappropriate way. Mr. Hurtado testified that he had witnesses for evaluation at trial. The defense expert, been drinking heavily at a family party before the Gerald Cooke, PhD, a forensic psychologist, opined alleged incident, was asleep in the back of the van that Mr. Hutchinson carried the diagnoses of dysthy- between A.H. and N.E., and woke up because his mic disorder and sleepwalking disorder. He testified sister was yelling. Mr. Hurtado claimed that, in the that Mr. Hutchinson’s family history, significant past, he had made sexual advances toward people personal history of sleepwalking, and corroborating with whom he shared a bed. At trial, he presented information from his ex-wife and ex-girlfriend sup- two witnesses, both of whom were his friends, to ported his diagnoses. He added that reports of prior support this claim. history of sexual activity while sleepwalking and con- Abraham Argun, PhD, a forensic psychologist, in- fusion when awakened by C.D. provided additional terviewed Mr. Hurtado and reviewed the testimony. support for his conclusions. Dr. Cooke concluded He opined that Mr. Hurtado carried the diagnoses of that Mr. Hutchinson demonstrated behavior consis- sexsomnia, as well as bipolar disorder, and ruled out tent with sleepwalking during those incidents. malingering. Mr. Hurtado was found guilty of three The prosecution’s expert witness, Mark Pressman, counts of committing a lewd or lascivious act on a PhD, a sleep specialist, opined that “all the evidence child under age 14 because of the incidents involving points to defendant being awake . . . and aware” A.H. and one count related to the incident involving when he was in bed with C.D. (Ref. 30, p 4). He N.E. Judgment was affirmed on appeal, and Mr. opined that Mr. Hutchinson’s actions were inconsis- Hurtado was sentenced to 15 years to life. tent with sleepwalking, since C.D. had said that he responded to her when she spoke to him, and he State v. Stewart appeared aware of the situation as he apologized and Lymonta Stewart32 was charged with two counts endorsed fear of going to jail. each of second-degree rape, incest, and sexual activity Following a mistrial, Mr. Hutchinson was con- by a substitute parent for acts committed against his victed of three counts of endangering the welfare of a stepdaughter (L.). Mr. Stewart presented a sexsom- child. The trial court denied his motion for judg- nia defense at trial. L. testified that Stewart began ment of acquittal non obstante veredicto and a motion sexually abusing her in 2004 when she was 16 years for a new trial. The Supreme Court of New Jersey old. Mr. Stewart abused L. sexually on nearly a daily affirmed this decision. Mr. Hutchinson was sen- basis, including oral sex and vaginal penetration. L. tenced to three concurrent five-year terms, parole became pregnant and gave birth at the age of 17. In supervision for life, and Megan’s Law conditions, another matter, Mr. Stewart was convicted of assault and mandated to pay fines. with a deadly weapon after inflicting serious injury

82 The Journal of the American Academy of Psychiatry and the Law Mohebbi, Holoyda, and Newman by shooting someone in a road-rage incident. While finger in C.P.’s vagina, and that his confession was he was incarcerated, he wrote to L. and demanded coerced. that she send him nude photographs of herself, a Neeraj Kaplish MD, a sleep expert, conducted Mr. command with which she complied. Malloch’s forensic evaluation. Dr. Kaplish could not Mr. Stewart testified that one night, he awoke attend the trial, and Mr. Malloch’s request for con- from a deep sleep to find L. on top of him and having tinuance to secure expert testimony was denied. On sex with him. He claimed he ejaculated as he awoke appeal, Mr. Malloch contended that the trial court and before he could push L. off and this incident was abused its discretion by denying his motion for con- the only time he engaged in sexual activity with his tinuance. The jury was deadlocked in this case. The stepdaughter. court declared a mistrial and scheduled a second jury John F. Warren, PhD, conducted Mr. Stewart’s trial. He was found guilty in the second jury trial. forensic evaluation. Dr. Warren did not form an Judgment was affirmed on appeal. Mr. Malloch was opinion as to whether Mr. Stewart experienced sex- sentenced to 28 years in prison, followed by two years somnia, but rather presented general information re- of probation. garding sexsomnia. The trial court ruled to exclude Dr. Warren’s testimony, noting that “Dr. Warren doesn’t have an opinion as to a central matter in the Discussion issue, an issue in this case whether or not Mr. Stewart Our review has focused on legal cases of sexsom- was subject to sexsomnia or sleeping sex when he had nia involving allegations of repeated sexual of- his encounter with L. or encounters with L.” (Ref. fenses and with subsequent forensic evaluation. 32, p 3). Mr. Stewart was found guilty. He appealed Criminal charges varied from case to case. The de- that the trial court erred by excluding the testimony fendants were men in all cases. Most cases involved a of Dr. Warren as to the existence of sexsomnia. The single victim with multiple offenses with the excep- appellate court disagreed and the sentences were af- tion of two cases26,31 that involved multiple victims. firmed. The trial court suspended judgment on the All victims were minors and female, with the excep- convictions for incest and sentenced him to 300 to tion of People v. Hurtado,31 which involved two mi- 309 months of imprisonment. nor males. In all cases, the victim or victims knew the defendant. Most of the forensic cases involving sex- Malloch v. State somnia that have been previously reported in the Steven Malloch33 was charged with two counts of literature involve defendants who are generally males felony child molesting. Mr. Malloch’s stepdaughter and single victims that were usually female, minors (C.P.) testified that on one occasion she awoke with and known to the defendant.36–42 This tendency is him lying next to her with his hand underneath her consistent with what we observed in our review. shirt and on her breast. He appeared to be asleep. On The expertise of the forensic evaluator is necessary another occasion, C.P. fell asleep in her bed with Mr. to educate judges and juries about sexual behaviors in Malloch beside her. When she woke up, his hand was sleep, particularly as they pertain to sleep diagnoses in her underwear and his finger was in her vagina. such as sexsomnia. As observed in this case review, Again, Mr. Malloch appeared to be asleep. C.P. was forensic evaluators do not always conduct sleep stud- 11 years old at the time of the alleged incidents. ies to evaluate sexsomnia claims. In the cases de- During the police interview, Mr. Malloch stated scribed in which sleep studies were performed, there he was in bed with C.P. because she was scared. He was no clear indication that the defendant was expe- woke to find his hand in her pants and his finger in riencing sexsomnia during the incidents in question. her vagina, he pulled his hand out, and C.P. kicked The polysomnography in State v. Scott29 did not him off the bed. He also admitted to the earlier inci- demonstrate aberrant sexual behaviors in sleep, but dent, when his hand was underneath C.P.’s shirt on the forensic expert offered a diagnosis of “sexual be- her breast, but claimed he had woken up that way haviors in sleep parasomnia” based on data obtained and thought she was asleep when he got up and went on the defendant’s sleep history, collateral informa- to his room. Mr. Malloch testified that he had sex- tion from family and sleep partners, and a character somnia, which caused him to engage in sexual behav- evaluation of the accused. This testimony ultimately ior while asleep, that he was asleep when he put his led to a favorable outcome for the defendant.

Volume 46, Number 1, 2018 83 Sexomnia as a Defense in Sex Crimes

Polysomnography in People v. Ellington26 also did Table 1 Recommended Elements of Forensic Sleep Evaluations not demonstrate sexual behaviors in sleep. The de- (Ref. 17, p 933) fendant’s motion for a new trial was denied by the Review of family history for sleep disorders A complete history of the defendant’s lifetime motor behavior court on the basis that the polysomnography results activity during sleep. This includes obtaining collateral of “nonspecific subtle indications” did not have any information from possible witnesses such as bed partners/relatives/ impact on the outcome of the trial. friends. These details should include age at onset, the usual timing of the event during the sleep, the degree of amnesia, and Sleep medicine experts consistently note the lack both the duration and frequency of the episodes of utility of sleep evaluations in evaluations of sex- Information about sleep/wake habits, prescribed and illicit use, 21 somnia and related sleep disorders. As Bornemann herbal products, habitual caffeine and consumption described, “Polysomnography is not routinely per- should be obtained Information about circumstantial factors of both the person’s life and formed as part of a medicolegal evaluation in part as hours prior to the incident are essential this diagnostic tool is not associated with the crux of Complete physical, neurologic and psychiatric evaluations, and the legal focus upon mens rea with the criminal alle- administration of standardized questionnaires for sleep disorders gation” (Ref. 21, p 454). This finding is largely be- should be carried out A video-polysomnography study to identify or rule out other cause “there is absolutely no after-the-fact polysom- sleep disorders associated with abnormal motor behaviors nograph finding that could possibly have any (to include standard polysomnographic monitoring, scalp EEG, relevance as to whether the accused was sleepwalking electromyographic monitoring of limbs, and time-synchronized at the time of the event in question” (Ref., 35, p 1). audiovisual recording) Simply stated, polysomnography may capture sex- somnia but such evidence does not determine whether sexsomnia occurred during the alleged inci- taking measures to prevent further incidents. As such, it dents. Similarly, the absence of sexsomnia on poly- is reasonable to expect such individuals to be aware of somnography does not rule out that sexsomnia did the danger of sexual acts while sleeping and use discre- occur during the purported episodes. Thus, the util- tion when considering sleeping in proximity with other ity of sleep studies in forensic evaluations is limited to individuals. Failure to do so must also be considered, as observing sleep behaviors in a controlled setting and it demonstrates a lack of consideration for the impact on establishing the presence or absence of sexsomnia the victim of the sexual behavior. and comorbid sleep disorders. Although there are no published, standardized as- Though sleep studies may have limited utility in sessments to evaluate for feigned sleep disorders, gen- the forensic evaluation of sexsomnia, sleep experts eral principles of the detection of malingering apply. have developed guidelines describing important The report of rare or improbable symptoms or un- components of any forensic sleep assessment. In- likely symptom combinations increases the likeli- gravallo et al. recommended that the forensic sleep hood that an individual is feigning. For that reason, evaluation should include the elements in Table 1 evaluators must be aware of typical presentations and (Ref. 17, p 933). actions of individuals diagnosed with sleep disorders. The recommendations noted in Table 1 have In addition, though polysomnography is not neces- merit. However, the evaluation should also assess for sary in diagnosing sexsomnia, individuals endorsing malingering, particularly in cases involving multiple frequent or severe aberrant sleep activity can be ob- alleged incidents. Because the diagnoses of sexsomnia served in a clinical setting or while incarcerated to and somnambulism are established largely on clinical determine whether there is evidence supporting their history, there may be a strong incentive for individ- reports. Collateral information from correctional of- uals to try to feign sleep-disordered sexual behavior ficers may also aid in the forensic evaluation. when accused of sexual offenses. Therefore, collateral reports from credible individuals who have observed Conclusion the individual’s sleep-related behavior throughout The use of sexsomnia as a defense for criminal his life or a documented history in his medical re- prosecution of sex crimes has been controversial in cord, may suggest that the individual has a genuine the legal community.22 As public and scientific sleep disorder. Furthermore, individuals who have awareness of sleep-disordered sexual behavior in- engaged in parasomnic sexual behavior may reason- creases, so does the likelihood that it will arise in ably be concerned about such behavior and consider litigation in genuine cases and fabricated ones. This

84 The Journal of the American Academy of Psychiatry and the Law Mohebbi, Holoyda, and Newman review of the sexsomnia defense in cases involving 14. Devesa AG, Alba´s JO, Ghinea AD, et al. Sexsomnia and sleep eating secondary to sodium oxybate consumption. Neurología multiple alleged incidents indicates that the diagno- (English edition) 31:355–6, 2016 sis is rarely exculpatory. Of the eight cases, only one 15. Khawaja IS, Hurwitz TD, Schenck CH. Sleep-related abnormal defendant was acquitted of his charges based on ex- sexual behaviors (sexsomnia) successfully treated with a mandib- pert testimony involving sleep-disordered sexual be- ular advancement device: a case report. J Clin Sleep Med 13: 29 627–8, 2017 havior. There was one case in which claims of in- 16. Yeh S, Schenck CH. Sexsomnia: A case of sleep masturbation toxication were raised by the defense but the court documented by video-polysomnography in a young adult male found the evidence insufficient to warrant an instruc- with sleepwalking. Sleep Sci 9, 65–8, 2016 31 17. Ingravallo F, Poli F, Gilmore EV, et al: Sleep-related violence and tion for a lesser battery charge. In addition, forensic sexual behavior in sleep: a systematic review of medical-legal case evaluators of potential sleep-disordered sexual behav- reports. J Clin Sleep Med 10:927–35, 2014 18. Organ A, Fedoroff JP: Sexsomnia: sleep sex research and its legal ior provide information and assessment that are of implications. Curr Psychiatry Rep 17:1–8, 2015 widely varying depth and utility. Sexsomnia may be a 19. Schenck CH: Update on sexsomnia, sleep related sexual seizures, relatively new frontier of forensic evaluation, but the and forensic implications. Neuroquantology 13:518–41, 2015 20. Cramer Bornemann MA, Mahowald MW, Schenck CH: Sexsom- importance of rigorous history-taking, gathering of nia and sleep forensics: the interface between sleep-related abnor- collateral information, thorough record review, and mal sexual behaviors and the law (abstract). Sleep 37:A210, 2014 assessment of malingering remain key elements. As 21. Bornemann MAC. Sexsomnia: A medicolegal case-based ap- our understanding of sleep-disordered behaviors im- proach in analyzing potential sleep-related abnormal sexual be- haviors. Parasomnias 2013:431–61 proves, so will our ability to make diagnosis and 22. Badawy RS: Sexsomnia: overcoming the sleep disorder defense. opine on sexsomnia in the forensic context. Update: National Center for Prosecution of Child Abuse. 22:1–8, 2010 23. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) References 24. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 1. Hurwitz TD, Mahowald MW, Schluter JL: Sleep-related sexual (1993) abuse of children. Sleep Res 18:246, 1989 25. LexisNexis. www.lexisnexis.com. Accessed December 1, 2015 2. Fenwick P: Sleep and sexual offending. Med Sci & L 36:122–34, 26. People v. Ellington, No. A101380, 2004 Cal. App. LEXIS 2831 1996 (Cal. App. Ct. 2004) 3. Fedoroff JP, Brunet A, Woods V, et al: A case-controlled study of 27. United States v. Brady, No. ACM 35937 2006 CCA LEXIS 177 men who sexually assault sleeping victims, in Forensic Aspects of (A.F. Ct. Crim. App. 2006) Sleep. Edited by Shapiro C, McCall Smith A. John Wiley, 1997 28. United States v. Livengood, No. ARMY 20030558 2007 CCA pp 85–98 LEXIS 580 (A Ct. Crim. App. 2007) 4. Shapiro CM, Trajanovic NN, Fedoroff JP: Sexsomnia: a new 29. State v. Scott, 275 S.W.3d 395 (Tenn. 2009) 30. State v. Hutchinson, No. A-1377-05T4, 2011 N.J. App. LEXIS parasomnia? Can J Psychiatry. 48:311–17, 2003 2693 (N.J. Super. Ct. App. Div. 2011) 5. Sleep–wake disorders, in American Psychiatric Association: Diagnos- 31. People v. Hurtado, No. B228634, 2012 Cal. App. LEXIS 1915 tic And Statistical Manual of Mental Disorders. Fifth Edition. Ar- (Cal. Ct. App. 2012) lington, VA: American Psychiatric Association;2013 pp 399–404 32. State v. Stewart, No. COA11-1512, 2012 N.C. App. LEXIS 901 6. Schenck CH, Arnulf I, Mahowald MW: Sleep and sex: what can go (N. C. Ct. App. 2012) wrong? A review of the literature on sleep related disorders and ab- 33. Malloch v. State, 980 N.E.2d 887 (Ind. Ct. App. 2012) normal sexual behaviors and experiences. Sleep 30:683–702, 2007 34. United States v. Houser, 36 M.J. 392 (C.M.A. 1993) 7. Marca GD, Dittoni S, Frusciante R, et al: Abnormal sexual be- 35. Mahowald MW, Schenck CH, Cramer-Bornemann M: Finally: havior during sleep. J Sex Med 6:3490–5, 2009 sleep science for the courtroom. Sleep Med Rev 11:1–3, 2007 8. Cicolin A, Tribolo A, Giordano A, et al: Sexual behaviors during 36. Muza RT, Lawrence M, Williams A: The reality of sexsomnia: sleep associated with polysomnographically confirmed parasom- characteristics and manifestations of sexsomnia (abstract). Sleep nia overlap disorder. Sleep Med 12:523–8, 2011 38:A250, 2015 9. Be´jot Y, Juenet N, Garrouty R, et al: Sexsomnia: an uncommon 37. Trajanovic NN, Mangan M, Shapiro CM: Sexual behaviour in variety of parasomnia. Clin Neurol Neurosurg 112:72–5, 2010 sleep. Soc Psychiat Epidemiol 42:1024–31, 2007 10. Andersen ML, Poyares D, et al: Sexsomnia: abnormal sexual be- 38. Mangan MA, Reips U-D. Sleep, sex, and the web: surveying the havior during sleep. Brain Res Rev 56:271–82, 2007 difficult-to-reach clinical population suffering from sexsomnia. 11. Penas-Martinez ML, Guerrero-Peral AL, Toledano-Barrero AM, Behav Res Methods 39:233–6, 2007 et al: Sexsomnia: descripcìon de un nuevo caso [Sexsomnia: a new 39. Ebrahim IO: Somnambulistic sexual behaviour (sexsomnia). case description]. Rev Neurol [J Neurol] 47:331–2, 2008 J Clin Forensic Med 13:219–24, 2006 12. Krol DG: Sexsomnia tijdens behandeling met een selectieve sero- 40. Pressman MR, Schenck CH, Mahowald MW, et al: Sleep science tonineheropnameremmer [Sexsomnia during treatment with a se- in the courtroom. J Forensic Legal Med 14:108–18, 2007 lective serotonin reuptake inhibitor]. Tijdschr Psychiatr [J Psychi- 41. Arin˜o H, Iranzo A, Gaig C, et al: Sexsomnia: parasomnia associ- atry] 50:735–9, 2008 ated with sexual behaviour during sleep. Neurología (English edi- 13. Cruz MM, Soca R: Sexsomnia and REM: predominant obstruc- tion). 29:146–52, 2014 tive sleep apnea effectively treated with a mandibular advance- 42. Zaharna M, Budur K, Noffsinger S: Sexual behavior during sleep: ment device. Sleep Sci 9:140–1, 2016 convenient alibi or parasomnia. Curr Psychiatry 7:21–30, 2008

Volume 46, Number 1, 2018 85