Judge rejects 'sexsomnia' defence
Published Friday, November 16, 2018 4:24PM EST Last Updated Monday, November 19, 2018 5:03PM EST
A judge rejected the defence of 'sexsomnia' in a Brockville courtooom on Monday. Justice Moore finds 38-year-old Ryan Hartman guilty of sexual assault.
The assault stems from an incident in 2011 in which a 30-year-old Ottawa-area woman was raped.
This is the third trial for Hartman following two appeals. In this new trial, Hartman admitted to the crime, but claimed he has a sleep disorder and has no memory of the incident.
Justice Moore in delivering her decision rejects testimony from key witness who coined “sexsomnia” saying Dr Shapiro was “biased” @ctvottawa— Joanne Schnurr (@JoanneCTV) November 19, 2018
An Ottawa area woman will face the man who sexually assaulted her in a Brockville courtroom Monday morning, for a third time.
Ryan Hartman has already been convicted of raping the woman seven years ago.
His new defense claims he was sleepwalking and didn't realize what he was doing. That defense is called sexsomnia. It's been used rarely in Canada but successfully a few times.
The victim says the attack changed her life and she can't move on until she has justice. Her name and identification are protected under a publication ban.
The tattoo on her wrist tells a story; a simple word, “survivor,” that carries a powerful message.
“This absolutely horrible thing happened to me,” she says, “but I've overcome it and I’m fighting and I am a survivor.”
The details are as clear as though the assault happened yesterday. But it was really in 2011 at a house party in Brockville as the victim, now 30, lay sleeping on an air mattress with her boyfriend beside her.
"We got pretty drunk," she admits, "Our friends encouragedus to spend the night, so they set up air mattressin kitchen."
She says she didn’t want to stay there, so she set her alarm for a couple hours ahead and fell asleep. Moments before the alarm was to go off, she woke up to a searing pain in her buttocks.
“I had fallen asleep with my arms wrapped around my boyfriend,” she quietly explains, “and woke up in pain and realized I was being assaulted.”
A stranger, who had been at the party, had crawled into bed beside the couple - and began assaulting her. She says she leaped up, turned on the light and saw a man named Ryan Hartman lying on the mattress.
At his first trial, 38-year-old Ryan Hartman denied touching the woman but was ultimately convicted. He appealed the conviction and lost. The case then went to the Ontario Court of Appeal with a new lawyer and a new defense called sexsomnia. A new trial was ordered and the decision will be rendered in court on Monday.
“I will never believe he was sleeping when it happened,” the woman says.
For her, this new defense makes her feel re-victimized. Seven years in, she is still seeking justice.
“It has been hard. Some days I feel like it ruined my life,” she says, close to tears. She’s become obsessed with time and recently understood why.
“I had set my alarm,” she recalls of the night she was assaulted, “and the assault happened minutes before my alarm was supposed to go off. If I had set my alarm a little earlier, maybe this might not have happened.”
Sexsomnia is rarely used as a defence in sex assault cases in Canada but there have been acquittals in the past.
Blair Crew is a professor of law at the University of Ottawa and teaches sexual assault law.
“Sexsomnia is sexual acts that are committed when a person is in a state that is similar to sleep-walking. So, typically a person will claim to have no control or volition over their actions and experience shock when they wake up as to what they are alleged to have done or they have no memory of what they did when they are fully awake.”
Crew says there was a high profile case in Ontario in 2003 involving a gardener in Toronto who relied on this defense.
“He was acquitted initially,” he says, “but the Ontario Court of Appeal sent it back saying the question should have been whether or not this should be classified as a mental illness. Ultimately the defense was accepted but they found he was not criminally responsible and treated sleep sex as a mental disorder.”
“People unfamiliar with sleepwalking can't believe this defense is actually viable,” he says, “and certainly from this survivor's point of view, there is no question she was raped.”
Crew, who is using this case as a teaching moment in his law class, says if the sexsomnia defense is rejected on Monday, Hartman will serve out the rest of his sentence in jail.
“If on other hand, the defense is accepted,” he explains, “then he's going to become subject to review by the Ontario Review Board on an annual basis until he can prove he's no longer a danger.”
Either way, this woman is back in court again to face her attacker, no longer a victim, she says, but a survivor.
“I think I’m walking into the courtroom this time a little stronger.”
Blair Crew says there's a concern that this defense will embolden other sexual offenders who believe they too can commit an offence, and then claim afterwards they were sleeping when it happened.