Sexsomnia case: Dad who molested young teen daughter found not criminally responsible
An Eastern Ontario father who molested his 14-year-old daughter in 2016 has been found not criminally responsible because he was “suffering” from sexsomnia at the time.
His daughter had just moved back in with her father only for him to molest her in her bedroom at night.
The father, 39, was found not criminally responsible for sexual assault, touching for a sexual purpose, and touching a child for a sexual purpose after two psychiatrists concluded he had sexsomnia.
Ontario Superior Court Justice Michel Z. Charbonneau recently delivered his ruling after also hearing evidence of a sleep study that showed the father became sexually aroused while sleeping. (The electroencephalogram, or EEG, indicated he was asleep during the sexual activity, thereby eliminating any possibility that he was faking it, L’Orignal court heard.)
It’s not the first time he’s been in criminal court. He pleaded guilty for trying to have sex with a sleeping woman back in 2003.
In a bid to win his sexsomnia defence, he took the stand during his trial earlier this year in May, and offered past examples to support his claim that he was suffering from the sleep-sex disorder when he molested his daughter. He didn’t dispute the sexual assaults but maintained that he had no memory of them after falling asleep next to his daughter one night back in 2016.
He testified that his wife has told him that he used to touch her sexually in his sleep only for him to have no memory of it.
He also said he has sleep apnea and had trouble getting a good sleep at the appropriate time. He told court his sleep has greatly improved since using a CPAP machine.
His wife also took the stand in his defence and testified that her husband — for years — used to perform sexual acts on her while he was asleep. She said it hasn’t happened since he started using a CPAP machine in 2017.
Her testimony was supported by a second sleep study conducted after he started using a CPAP machine. (The breathing problem had been corrected and no parasomniac behaviour was noted, court heard.)
In the July 18 decision, Charbonneau noted that the accused had a hard childhood. He was sexually abused by adults. He went on to sexually abuse some of his siblings and worked as a teen prostitute. He has been diagnosed with ADHD, anti-social personality disorder and depression.
Dr. Paul Federoff, an expert psychiatrist, has been treating the man for years and says his risk to re-offend is nil, court heard. The man now sleeps only with his wife, has installed hand alarms on his bedroom door and sleeps with his CPAP machine which has cured his sleep apnea, court heard.
The Crown urged the judge to reject the accused’s evidence, saying it lacked credibility — notably contradictions and discrepancies between his trial testimony and what he told investigating Ottawa police back in 2016.
His defence lawyer, Michael Crystal, said at trial that his client — described in court as unsophisticated — had not yet had a chance to review the statement he gave to police some three years earlier before he took the stand.
The judge ruled that most of the accused’s contradictions raised by the Crown were not significant before ultimately finding him not criminally responsible.
The judge made the NCR finding on consent from both the Crown and defence.
Because he was found not criminally responsible, the Ontario Review Board (ORB) will now decide his future and the conditions that come with it. The man is not in custody and is awaiting an unscheduled ORB hearing.
Sexsomnia is a disorder that causes people to engage in sexual behaviour — everything from touching to intercourse — while still asleep. It was added in 2013 to the DSM-5, the American Psychiatric Association’s authoritative classification of mental disorders. Defence lawyers have mounted sexsomnia defences only a handful times, with varying degrees of success, over the past 15 years, according to a review of the Canadian legal database, CanLII.
The man’s identity is shielded by a publication ban to protect the identify of his victim.
His lawyer told this newspaper on Friday that he was pleased the girl was spared the hardship of a trial in light of the successful NCR defence.