Alcohol or “sexual sleepwalking”? As part of a criminal trial for sexual assault, a psychiatrist was called to the bar Thursday to dissect the defense of sexsomnia invoked by the accused, who says he has no memory of what he is accused of.
Yannick Giguère is accused of having sexually assaulted a woman, whose identity is protected by order of the Court. He presented, with expert evidence in support, a defense of sexsomnia, rarely invoked.
In criminal law, to obtain a conviction, the Crown must show that the accused committed the alleged act and that he intended to do so.
But what if the accused was unaware of what he was doing? This is where a sexsomnia defense can come into play.
Psychiatrist Pierre Gagné, who has nearly 50 years of experience, was called to testify. He described sexsomnia as “unconscious sexual activity during sleep” that leaves no memory. Memory does not register anything because there is “no state of consciousness”, he explained.
On Tuesday, the plaintiff testified that she went to sleep at the defendant’s house after a drunken evening with him and a friend of his in July 2018. The 45-year-old man installed tatami mats in the living room for the two women, but also offered the option of bed sharing. What she chose, judging the installation in the living room too cramped and feeling confident with the accused with whom she had already slept and who was “a good friend”.
Except that she woke up in the middle of the night, the accused above her, who was rubbing in her crotch, she told Judge André Perreault of the Court of Quebec, who is presiding over the trial. She says she froze. “I was afraid of his reaction, of what was going to happen. She says she closed her eyes. No words were spoken. No kisses or hugs. She heard the sound of an envelope being torn and thought of a condom. Then the man penetrated her, she said. She left the apartment and went directly to file a complaint at the police station.
What the plaintiff reported was “typical” of sexsomnia, the psychiatrist told the judge.
He concludes in an additional report: “This kind of behavior in medicine which is called sexsomnia is a form of automatism. During the episode, Monsieur Giguère was therefore, in my opinion, in a state where he was unaware of the gestures he was making, acting automatically like sleepwalkers do. »
The Crown prosecutor, Mr.and Bruno Ménard, attacked the report, first telling the psychiatrist that for his diagnosis, he had no other sources than the statements of the patient and his ex-girlfriend.
Then he attacked the defendant’s consumption of alcohol head-on. He told the psychiatrist he drank the equivalent of three pitchers of sangria alone that night.
Self-induced intoxication, including with alcohol, is not a valid defense to a charge of sexual assault.
Mand Ménard asked the expert how he could conclude that the lack of memory of the accused was due to sexsomnia and not to alcohol.
“For the question of memory, it is impossible to discern one from the other, he agreed. But he concluded to sexsomnia on the basis of the facts he obtained from the accused and his ex-girlfriend: the latter reported that there had been with her a dozen episodes of sexual acts. in full sleep, without consumption of alcohol.
Dr. Gagné excludes that the accused simulated his condition, because he had been living with this sleep disorder for years. He would have been suspicious if it had happened only once.
On the other hand, alcohol can trigger, or promote, a sleepwalking event, he said.
It remains to be seen what arguments the lawyers will present in their closing arguments, which will be presented at a later date.