It is important to stress that Tom was found guilty in a court of law by a jury, and in the eyes of the law remains guilty until such time that he chooses to appeal his conviction. I am not a judge or lawyer, and, not being privy to all the testimonies, I am not in a position to say that his sexsomnia was responsible for the event in question. Based upon my clinical judgement, what Sarah describes and what the sleep study shows strongly points towards a diagnosis of non-REM parasomnia, with sexsomnia as one manifestation in Tom’s case. In fact, it is clear that Tom has other parasomnias too. Sarah’s description of their first night together, when he stood up and went to leave the house partially clothed, is typical, as is a very recent event that Sarah describes.
The last one [event] he had was when his daughter came to visit, so he was quite stressed about having to look after her. He got up in the night and thought he was on call and was going into the hospital because they needed him. He pulled himself up and got up onto the side of the bed and sort of sat up and told me he was going into the hospital. And I said: ‘No, you’re not. Go back to sleep.’ And he didn’t remember anything about that the next day. But it was the stress of having her there.
(Tom is not a doctor, nor does he work in a hospital, by the way.)
Determining that someone has a sexsomnia is in itself not enough, however. Proving that someone was in the midst of a sexsomnia event while undertaking an alleged crime is problematic, and remains a hugely controversial and challenging area of forensic sleep medicine. Tom is not the first person with sexsomnia to run into problems with the law. One of the earliest examples was a case from 1897, when a man was prosecuted for exposing himself while sleepwalking. Over the years, though, there have been several cases where sexsomnia has been used as a legal defence. Critics point to this being a convenient defence for sex offenders, and the major issue is determining the association between a sexsomnia and the event being prosecuted for. Without having EEG electrodes attached at the time of the alleged offence, it is impossible to be definitive. Nevertheless, there have been a number of cases where an acquittal has resulted from a diagnosis of sexsomnia. In fact, it is not just sexsomnia that has been used as a legal defence. Sleepwalking, too, has a long medicolegal history, and may have some bearing on criminal acts. Reports of violence in sleep date back hundreds of years. In medieval times, a woodcutter from Silesia – then in Germany, now in Poland – was reported to have woken in the middle of the night, picked up an axe and aimed it at an imaginary intruder. He awoke to find that he had killed his wife.
Charcot, one of the founding fathers of modern neurology, was asked to pass medical judgement on a servant who had injured his landlady and another member of the household by firing a gun shortly after going to sleep, in an apparent case of sleep-shooting in 1893.
Perhaps one of the most famous, or infamous, cases is that of Kenneth Parks. At the time of the incident, Parks was living in Pickering, Ontario, and was a happily married 23-year-old with a baby daughter. In the early hours of 24 May 1987, Parks apparently got out of bed, got dressed (without socks or underwear on), and drove 23 km west along the shore of Lake Ontario, to the house of his parents-in-law in nearby Scarborough. His first proper memory after going to bed that night was being in a police station, saying: ‘I just killed someone with my bare hands. I just killed two people.’ It materialised that Parks had gone into the house, had taken a tyre iron and some knives from the boot of his car, stabbed and beaten his mother-in-law to death and had strangled his father-in-law to unconsciousness, stabbing him too for good measure. The story took a further twist when it came to light that Parks, in the year preceding this event, had developed a gambling addiction and had raided the family coffers and embezzled money at work to cover his massive losses. He was due to go to court in proceedings taken out by his employer. Despite a reportedly very close relationship between him and his in-laws, his claim that this must have happened in his sleep was for obvious reasons sceptically received, by doctors and the judicial system alike.
But, despite numerous attempts to confuse him, his story was incredibly consistent, and a subsequent recording of his brain activity in sleep was said to be highly abnormal, and consistent with a non-REM parasomnia. His wife told the court that he was a very deep sleeper and was frequently incredibly difficult to wake. He had also been known to sleep-talk and, on one occasion, sleepwalk. It was evident that there was a strong family history of various non-REM parasomnias. He had been profoundly sleep-deprived and anxious as a result of the pending court case, and evaluation by several sleep physicians and psychiatrists failed to provide an alternative explanation. Rather amazingly, he was subsequently acquitted.
As a neurologist, I have certainly seen people exhibit very unusual behaviour, aggression or violence when there has been brain dysfunction. Patients lashing out when their blood sugars are very low, others frankly but briefly psychotic after a seizure. No one would argue that this sort of behaviour reflects an underlying moral weakness or a failing of one’s personality; rather, it is simply a disorder of brain function. Behavioural change is common after brain injury, like the famous case of Phineas Gage I described in the introduction.
One person who sticks in my memory is a man I saw with a serious brain injury as a result of assault. Having been a regular churchgoer, married and running a small business, after his assault he turned into a cannabis-smoking menace to society, racking up ninety-seven convictions over a matter of a few years. While it is easy to understand abnormal behaviour in those cases, where there is something clearly wrong with the brain – a lesion, damage or something altering normal brain function – instinctively it is much more difficult to comprehend this as a phenomenon simply arising from sleep. But this is a lesion of the brain, just like Gage’s tamping iron passing through his frontal lobes, or the damage inflicted by an aggressor. It is electrical, or functional, rather than structural, but it is a lesion nevertheless. The intrinsic brain structure, the neurones, the pathways and connections, are unchanged, but the way the brain functions as a whole is temporarily disturbed. While bits of the brain work normally, others do not, and in thankfully rare scenarios this permits these bizarre, violent and dangerous actions to occur – the ability to walk, talk, fight, stab, shoot a gun or have sex in the absence of conscious thought or rational thinking.
So, from a medical perspective, extrapolating from other neurological conditions, most doctors would comprehend the possibility that it is possible to act out violently in sleep. But how does the law view this? In most jurisdictions, criminal responsibility relies upon demonstrating two mandatory elements: that you have performed the criminal act, termed actus reus; but also that you have a guilty mind, mens rea, meaning that you had a conscious desire to perform the act. For most of these cases reaching a court of law, the physical act and who it was performed by are not in doubt. Assessing for mens rea is much more problematic, however, and it is ultimately down to the court, guided by medical experts, to determine. To have mens rea requires an intent to perform an act, plus an understanding of the nature of the act, and of the consequences of that act. The legal arguments therefore largely centre on whether someone was in a parasomnia episode at the time of the act, as this is inconsistent with full consciousness.
From a legal perspective, therefore, parasomnia, and thus also sexsomnia, is viewed as an ‘automatism’, and can be used as a defence. Automatism is a state defined by grossly impaired consciousness, where a person can perform acts devoid of conscious will, where someone is acting like an ‘automaton’. The act itself is involuntary, unconscious. But here it gets even more complicated and messy. If you know that drinking alcohol triggers your parasomnia, this may be viewed as being self-induced, and as such is not a valid legal excuse. Furthermore, in countries that practise common law, like the United Kingdom and Canada, automatisms can be classed as insane or non-insane. In this context, the term ‘insane’ does not imply a psychiatric disorder. The important issue is whether the automatism
has arisen from internal or external factors. If the automatism has arisen from an external factor, like a head injury, or a drug prescribed by a doctor, factors that are not foreseen and unlikely to happen again, this is viewed as non-insane. If it arises from internal problems like epilepsy or sleepwalking, the automatism is insane. Of course, sleepwalking can be triggered by external factors, like noise, abnormal stress or drugs, and this is where the legal arguments become grey. But the distinction is important. An insane automatism, implying a disease of the mind, can in theory lead to indefinite detention, as ultimately the underlying cause of the act remains in perpetuity, whereas a non-insane automatism related to an external factor can be prevented. In the UK, however, an insane automatism defence can lead to supervision orders, where you remain in outpatient medical care, or, rarely, even an absolute discharge, depending on the judge. But the law remains somewhat opaque on many of these issues, and this is reflected in the range of outcomes seen in the courts when these defences are used.
For the sleep expert, there is some relief that the decision as to whether an automatism is insane or non-insane is for the judge and jury to make. But, from a clinical viewpoint, there are some important questions to ask in order to determine if a parasomnia could explain a violent or sexual assault. There are no universally accepted guidelines, but some features clearly point one way or the other. Factors that strongly point away from a parasomnia would be evidence of planning, seeking out a victim or sexual partner, a clear memory of the event, and attempts to cover up an illegal act. Equally, navigating unfamiliar environments, having a clear motive, and the act being in keeping with the person’s character support the view that this was not a parasomnia. Being previously diagnosed with a sleep disorder, providing descriptions of the event in keeping with previous events, confused behaviour, difficulty navigating around obstacles like furniture, or shock and horror upon discovery of what has occurred would all be more indicative of a parasomnia explanation.
For Tom, there is no denying that his sleep study is very supportive of a parasomnia, and in fact he has spent a further two nights in the sleep laboratory, both of which show the same brainwave signature seen on the first night. Sarah describes behaviour entirely in keeping with a sexsomnia, and there is evidence from her description of other non-REM parasomnias. His ex-partner’s statements that his actions were very out of keeping with his character – ‘this is not like you!’ – are also supportive.
But there are some issues for Tom, most significantly the lack of a preceding history of sexsomnia or parasomnias. Tom says he has not had many relationships and perhaps the only person who can give a good history of his past sleeping patterns is his ex-partner. The more recent diagnosis of sexsomnia has at least given Tom and his ex a possible explanation for that fateful night. Tom hopes that she may help overturn his conviction, and in their most recent correspondence, she has apparently mentioned a previous event that at the time she put down to certain past traumatic experiences.
Another issue is that of his fleeing his ex-partner’s house when confronted. My own view is that his response was understandable when put into context. When I met Tom, I considered him to have post-traumatic stress disorder, triggered by an event in his past. He had served in the military in his youth, and was involved in a training incident that led to a friend’s death. Due to confidentiality issues, I cannot reveal more details of this event, but Tom has subsequently been seen in a specialist service, where this diagnosis has been confirmed. If Tom is to be believed, and he regained consciousness when he was being screamed at and pulled around by his hair, then the combination of PTSD and his possible Asperger’s could certainly explain the strong desire to flee in the face of confrontation.
The other problematic area is the consumption of alcohol by Tom and his ex-partner that night. I and most of my colleagues would view alcohol as being a strong trigger in some people with parasomnias, but this is not universally accepted. The role of alcohol in the area of forensic sleep medicine is hotly contested and has been the subject of very ill-tempered debate in the medical literature. Some experts would argue that it is impossible to differentiate between someone who has woken up drunk and committed an offence and someone in a parasomnia episode.
* * *
The diagnosis of Tom’s sexsomnia, and subsequently his PTSD, has at least opened the door to treatment possibilities. ‘I can never actually sleep in the same bed with Sarah again, because there’s no way I want to put her through this ever again,’ was Tom’s view prior to the diagnosis. After our initial meeting, he wanted to avoid medication, and so we discussed strategies to avoid further episodes. Things like the avoidance of alcohol, stress reduction and sleep deprivation. Sometimes simply not going to bed naked can help. Tom says:
Sleeping with your partner in the same bed if you are both naked can have a very profound effect on whether an event or an episode of sexsomnia actually happens. As well as alcohol, as well as being in a stressful environment, being in a stressful workplace, and actually down to being in a very unfamiliar sleeping environment. If we stayed in a hotel for a break or something like that then that could have an impact on whether an episode of sexsomnia actually happens.
He was commenced on an antidepressant drug for his PTSD for a brief period, a medication that is also used for the treatment of non-REM parasomnias. But these caused side effects, and he soon stopped the medication. He has also undergone cognitive behavioural therapy, and has been disciplined about regulating the lifestyle factors that he knows contribute to his condition.
Tom continues: ‘I feel very confident now. It’s only through your help and Sarah’s help that I’m in a position now to be able to be very confident about . . .’ He pauses. ‘I mean I can never say that an episode of sexsomnia is never going to happen again because . . .’
Sarah smiles, and confirms that there have been no further episodes of sexsomnia for a couple of years now.
* * *
Ultimately, as his doctor, I cannot make a judgement on Tom’s innocence or guilt. This is for the court to decide, in the knowledge of all the evidence, if and when Tom and Sarah decide to appeal his conviction. But his story is certainly plausible. And what is clear is the devastation that sexsomnia may have wreaked, for Tom’s ex-partner, Tom and everyone surrounding them. For Tom’s ex-partner, the diagnosis has perhaps led to the realisation that Tom is not the monster she thought he was, someone capable of trying to rape her in her sleep.
For Tom, the knowledge has shaken him to his very core. He now has to face the fact that, rather than this being a fiction concocted by his ex-partner, as he had always believed, there is something dark within him that he cannot control or completely cure, and that in all likelihood he did what his expartner accused him of.
And for Sarah? What about her? She was obviously well aware of what had happened in Tom’s past long before their relationship started, but behind her softly spoken façade, I can sense an inner steeliness, a single-minded focus on achieving resolution for everyone concerned. It has undoubtedly taken its toll on her and her relationship with Tom, though. In an email, she writes: ‘Efforts to avoid episodes can lead to a loss of intimacy and eventually ruin the relationship. The “precautions” we put in place and his fear of an episode stopped him from going anywhere near me at all for the last couple of years. When you lose that closeness, things eventually fall apart.’
The reality is that, in any one of us, given enough provocation, our brains are probably capable of generating a parasomnia event. The perfect storm – sleep deprivation, anxiety, a bit of alcohol, maybe a prescription drug – could result in something similar. Fortunately, these sorts of cases are incredibly rare, but these basic behaviours, such as fear, violence or sex, reside in all of us, to be potentially unmasked in sleep. As Socrates was quoted, in the ninth book of Plato’s Republic: ‘. . . in all of us, even in good men, there is a lawless wild-beast nature, which peers out in sleep’.
Postscript: In a recent e
mail, Sarah tells me that the diagnosis of sexsomnia has contributed to a degree of rapprochement between Tom and his ex-partner. Referring to his incident while serving in the military, triggering off his PTSD, Sarah writes: ‘She thinks herself more a victim of war than a victim of rape.’
11
THE WAKING EFFECTS OF COFFEE
I can understand why Freud and other psychoanalysts came to the conclusion that sleep uncovers our hidden desires or anxieties. From the contents of our dreams to our nocturnal behaviours, a common feature is one of primitive, basic themes – sex, anger, fear, violence – intense emotions and impulses. We have already seen these in Tom and his sexsomnia, in Alex and his night terrors, and in John and Evelyn with their terrifying or violent dreams. But there is a further elementary instinct: that of food. No patient I have ever seen typifies this quite so dramatically as Don. And as his case illustrates, in the world of sleep there are many blurred boundaries, including where the psychological and biological start and end.
* * *
When I first meet Don, he has already been diagnosed with sleep-eating. Tall, well-built, with glasses and thinning blond hair, he has a slightly patrician air about him. His American accent remains unaltered despite many years living in the UK. He is now in his sixties, and recalls his problems with food starting in his early twenties.
Don tells me that his childhood was difficult. He grew up in Vermont, and went to school in a boarding school where his father was a teacher. ‘It was in a small town, but it was a hilltop liberal artsy school.’ It sounds like a place of privilege – ‘Bobby Kennedy sent his daughters there, but he wouldn’t send his sons. It wasn’t rigorous enough. No Latin!’ Don laughs. He lived in faculty accommodation with his father rather than boarding with the other pupils, and as a result felt a little apart from his classmates.
The Nocturnal Brain Page 20