A man with
"sexsomnia" was cleared of rape after he claimed in court that he was
sleeping throughout his sex with a woman.
Following a
night out together, Timothy Malcolm Rowland, 40, was found not guilty on
Thursday of having non-consensual sex with a lady at his Sydney flat on August
26, 2022.
During the
seven-day jury trial, the 40-year-old man claimed to be having an episode of
sexsomnia, a disorder in which sexual behavior occurs while a person is asleep.
Hours after
jurors sent Judge John Pickering at Sydney's Downing Centre District Court a
number of questions, the finding of not-guilty was rendered.
The judge
was concerned about the repercussions of committing crimes while someone was
unconscious.
The judge
declared, "This is a really dangerous logic."
He cautioned
that a jury should decide a matter based on the laws that are in effect now
rather than on laws that it wishes were in place.
He claimed
that it would be unjust to any accused person to do this.
Someone
could not be found guilty of a crime they did unconsciously, Judge Pickering
said.
'We're not
about to punish people for acts that they have no lawful control over.'
There were
no current laws, rules or regulations about having s£xsomnia or doing something
while having the medical condition, the judge said.
''No laws
about that exist. There are no criminal offences about that that exist. And
it's not for you to create the law.'
Rowland and
the woman went drinking at a cocktail bar in inner-city Darlinghurst on the
night of the alleged r@pe, returning to his apartment at about 1am, the jury
heard during the trial.
Once there,
they drank some more and took a naked bath together before the woman fell
asleep in Rowland's bed, the parties agreed.
At about
6am, the woman allegedly woke to find Rowland having s£x with her before she
pushed him off, jumped out of the bed and left the apartment.
There was no
dispute during the trial that Rowland had s£xsomnia. But the issue before the
jury was whether he was having an episode at the time of the alleged r@pe or
whether he was awake.
It was also
not in dispute that the woman was asleep when Rowland began having sex with
her.
Earlier on
Thursday, the jury asked what sort of evidence there could be to prove someone
was awake.
And if there
was insufficient evidence, why was the case prosecuted and why did it come
before a jury, it asked.
Judge Pickering
said it was none of his business why the Director of Public Prosecutions had
decided to pursue the case in court.
It was also
not the jury's responsibility to wonder about these things.
Instead, he
urged them to look at the evidence before them and determine whether the rape
had been proved beyond reasonable doubt.
Determining
a verdict was a 'cold-analytical process' which should not be concerned with
how the alleged victim or the community may feel, he said.
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