Judge rejects sexsomnia defence
Ontario trucker found guilty of sexual assault
A judge has ruled an Ontario truck driver was not suffering from a sleep disorder when he sexually assaulted a woman.
Judge Kimberly Moore rejected Ryan Hartman’s defence of sexsomnia, ruling that he was “awake and aware” when he pulled down the victim’s pants and sexually assaulted her.
“His actions were not involuntary,” Moore said in a ruling Monday. ”I conclude he was awake and aware of his actions.”
A sentencing date has not been set.
Court heard that Hartman consumed as many as 21 drinks during the party and had an estimated bloodalcohol level that was three to four times the legal limit.
Moore found that any gaps in Hartman’s memory were the result of his alcohol consumption.
She also rejected as unreliable a report by Dr. Colin Shapiro in which the sleep expert concluded that Hartman suffered from sexsomnia and was likely asleep at the time of the incident.
Sexsomnia is a disorder that causes people to engage in sexual behaviour — everything from touching to intercourse — while still asleep. It was added in 2013 to the DSM-5, the American Psychiatric Association’s authoritative classification of mental disorders.
Moore said Shapiro demonstrated bias in his testimony and refused to consider evidence that interfered with his conclusion.
The judge said she found Shapiro’s report difficult to read, incomplete and flawed in that it relied on information that was inconsistent with testimony heard at trial.
“I will not rely on Dr. Shapiro’s evidence in this case,” she said.
The ruling comes seven years after an Ottawa-area woman was sexually assaulted by a stranger during the night while sleeping on an air mattress after a party near Brockville, Ont.
Hartman, 38, has admitted that he sexually assaulted the woman while sleeping on the same air mattress after the party on the night of Feb. 11, 2011.
But Hartman’s defence lawyer, Margaret Bojanowska, argued he was asleep during the sex assault — he undid the woman’s belt, pulled down the victim’s pants and sexually assaulted her — and not criminally responsible for his “involuntary” actions.
The victim — her name is protected by court order — had testified she went to the Brockville party with her boyfriend, and that they fell asleep together on a double air mattress on the kitchen floor at about 2:30 a.m.
She woke up sometime later with pain in her anus, her belt undone and her pants down. She got out of bed, turned on the bathroom light, and became distraught when she saw it was a stranger who had committed the assault.
The victim has said the incident changed her life. She wanted to be a parole officer before she was sexually assaulted, the woman said, but could not bear the idea of working with offenders after being victimized.
“How didn’t it change my life? It changed the way my personal relationships are,” she said, “My sexual relationships, my career path. It has affected my life in every single way.”
The case has an unusual history. At his first trial, Hartman denied touching the sleeping woman in any way.
But based on the woman’s testimony and other corroborating evidence, Hartman was convicted of sexual assault in May 2012. After losing an appeal of that conviction, he was sentenced to 14 months in jail.
Hartman then went to the province’s highest court, the Court of Appeal for Ontario, with a dramatically different legal position. Contrary to his evidence at trial, he told the appeal court that he did sexually assault the woman but insisted he was asleep when it happened.
The appeal was based on new evidence provided by Dr. Julian Gojer, a forensic psychiatrist who concluded Hartman was probably asleep during the incident and his actions involuntary.
That opinion, Gojer said, was supported by a family history of sleepwalking and by evidence from Hartman’s girlfriend, who said she once awoke to find him, apparently asleep, masturbating beside her in bed.
The Crown submitted affidavits from U.S. sleep expert Dr. Mark Pressman, who said Hartman was likely awake but drunk during the assault.
In July 2015, the appeal court decided to send the case back to trial to determine the sole issue of whether Hartman was not criminally responsible for his actions because of a mental disorder, sexsomnia.