- Quote
- I beg to move, That leave be given to bring in a Bill to amend the Sexual Offences Act 2003 to prohibit the use of a defence of sleepwalking in proceedings relating to the offence of rape; and for connected purposes. I think of this as my rape and sleepwalking Bill, because it deals with what has become a loophole in rape law. My Bill says that it shall not be a defence for a defendant accused of an offence of rape to claim that he was sleepwalking or suffering from non-insane automatism or other similar condition when the offence was alleged to have taken place. This matter came to my attention during a Select Committee on Work and Pensions visit to Australia to obtain evidence for our excellent carers report. During the stopover at Hong Kong airport, I was reading in an Australian newspaper of an ongoing court case where the defendant, Leonard Spencer, was claiming as a defence for rape that he had been sleepwalking. I thought, no chance! To my amazement, on the journey back I saw a report in The Australian on 16 May that he had been acquitted on those grounds and that it was the first time in an Australian court that “sex-sleep” had succeeded as part of a defence. The article said: “It is not hard to imagine that more cases will come to light, as defence lawyers ask clients facing sex charges: ‘Do you have any strange episodes in your sleep?’ It should be pointed out that Spencer’s lawyer, Jon Tippett QC, did not ask his client any such leading questions. It was the police, curiously, in what seemed a throwaway question, who asked Spencer whether he had sleep issues. Spencer, who was on medication for depression, replied that he did.” From then on, the sexsomnia angle was played strongly through the trial. The article continued: “Spencer did not deny being in the woman’s bed. The defence argued that he did not remember being there. A person cannot be found guilty if there is no intent involved. That’s why the sleeper defence is a ripper.” I was then astonished to see not only that the defence had been used internationally—the 2005 judgment of a Canadian man, Jan Luedecke, is one sexsomniac acquittal—but that the cases of two British men were also referred to. The first was that of London man James Bilton in 2005, and the second was from 2007, when RAF mechanic Kenneth Ecott was acquitted of raping a 15-year-old girl despite admitting to having committed the act. Some experts now think that those cases have set a precedent in the law. I sought a House of Commons Library briefing on the subject, and it brought my attention to several other cases. In 1994, Robert Burnett, a prison officer from Newcastle upon Tyne, was found not guilty of attempted rape after the court accepted that he was sleepwalking at the time. In 2006, Terry Hind, a gay race trainer—I am not sure what that is—committed a sexual assault on another man in Scotland when sleepwalking and the jury gave the verdict of “not proven”, which is part of the Scottish law. In 2006, Christopher Davies initially denied and then admitted sexually assaulting a woman, but was found not guilty because he was sleepwalking at the time. In 2007, David Pooley, a former RAF corporal, was found not guilty of rape after he successfully proved that he was suffering an episode of parasomnia, which can include sleepwalking. The law provides defences of insanity and non-insane automatism. The distinction between the two is crucial. According to English criminal law, the former requires a disease of the mind and is decided on the balance of probabilities. When it results in a not guilty criminal verdict, other powers can be invoked, such as the provisions under the Mental Health Act 2007. In the cases of non-insane automatism, the onus is on the prosecution to exclude it beyond reasonable doubt, or the result is an outright acquittal. My Library briefing says: “English law lacks a satisfactory method of dealing with defendants who, although lacking fault, pose a potential threat to the public…The law in this area was described in 1973 as a ‘quagmire’ and recent cases have only made matters worse.” As I have said, automania is increasingly being used as a defence in rape cases in the UK, Canada and Australia, and defendants are being acquitted. There must now be serious doubt that the Crown Prosecution Service would bring such a case to court if it thought that that defence would be used, as it has become extremely difficult to get a conviction. Just 6 per cent. of rape cases result in a conviction and such loopholes make a conviction even harder to obtain. That is a harsh injustice to the victims of rape and treats that serious crime as though it is of little consequence in the legal system. I think that the loophole has widened following recent cases. My briefing said: “Automatism…is a complete defence (unless it is self-induced, for instance by voluntary taking of drugs and alcohol). In a couple of the recent cases, prior consumption of alcohol was admitted but the juries still deemed it not a factor in accepting the automatism defence.” There was one case of extreme violence back in 1991—the case of Burgess. The expert medical opinion presented evidence that sleepwalking was a mental abnormality and could deem the defendant legally insane. The judge accepted that, but the series of more recent cases to which I have referred have overridden that decision as far as rape is concerned. Rape is obviously not deemed to be serious enough. My Library briefing says that English law lacks a satisfactory method of dealing with defendants who, although lacking fault, pose a potential threat to the public, and the court will have a sentencing discretion including absolute discharge, guardianship and supervision only if a disease of the mind is established. The law in this area is a case of political correctness gone mad. I think that it defies common sense. Sleepwalking is not a reasonable excuse for rape that should lead to acquittal. Dr. Cosmo Hallstrom, a fellow of the Royal College of Psychiatrists, has said: “People do sleepwalk and they do strange things in their sleep, but it usually is no more complex than grinding the teeth or smacking the lips—at most they may get up and make a cup of tea. I would think it was extremely difficult to perform such a complex manoeuvre as having sexual intercourse while asleep—especially if the other person is unwilling”. Let us tackle the issue of intention. Lord Denning explained that no act is punishable if it is done involuntarily. In this context, an involuntary act—some people prefer to speak of it as automatism—means an act that is done by the muscles without any control by the mind, such as a spasm, a reflex or a compulsion. However, that does not apply to the hundreds of thousands of people up and down the country, including some of my constituents, who do not pay some of their bills unintentionally. They may not have the money or they might have lost the documents, but they do not have non-intentionality as a defence. Its main application seems to be to rape laws. Victims in all the cases that I have referred to and which have led to the sleepwalking acquittal have told of the perpetrator being rough and violent. A rapist, whether sleepwalking or not, is a danger to the public, most often to women, and acquittal is not acceptable. It is not right that the rapist walks free. If a rape has been committed, a guilty verdict should be delivered. The judge should then decide the sentence based on consideration of the factors, but a rapist sleepwalker should be deemed a danger to women and not allowed to walk away scot-free. I am concerned about the current legal precedent. Anybody up in court on a rape charge could get a few friends and family to claim that he sleepwalks, and he will almost certainly get off. Rape is traumatic and damaging to the victims. As well as suffering the physical assault, they also suffer emotionally, often taking on the guilt of feeling that they cannot get justice. Women often say that only after a conviction can they properly absorb the fact that the rape was not their fault. That is why the 6 per cent. rate of successful prosecutions is so appalling. There is a general feeling among women that reporting rape is a waste of time, and that the process is horrendous. There is certainly a substantial level of non-reporting. In these days of DNA testing, a successful prosecution rate of less than 6 per cent. shows a criminal justice system that is not trying. The organisation Women Against Rape has issued a press release in support of the Bill, but it also draws attention to an even bigger loophole: the defence of belief in consent, which invariably is based on an assault on a woman victim’s sexual history. I wish that I had more time to go into it, but that is a crucial loophole that causes women to come under attack again, and it needs to be closed. The system is also very poor in dealing with the complaints process, which is very badly administered. All of that needs to be addressed properly if rape cases are to be taken seriously in this country. Question put and agreed to. Bill ordered to be brought in by Harry Cohen, Mrs. Linda Riordan, Ms Dari Taylor, Siobhain McDonagh, Joan Ryan and Chris McCafferty. Rape (Defences) Harry Cohen accordingly presented a Bill to amend the Sexual Offences Act 2003 to prohibit the use of a defence of sleepwalking in proceedings relating to the offence of rape; and for connected purposes: And the same was read the First time; and ordered to be read a Second time on Friday 17 October, and to be printed [Bill 153].
- Time
- 12:32
Harry Cohen (Leyton and Wanstead) (Lab)Labour