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Rape victim’s case dropped after sleep experts claim she experienced an episode of ‘sexsomnia’

Jade McCrossen-Nethercott, 30, is suing the Crown Prosecution Service (CPS) after it admitted wrongdoing in regards to a recent criminal investigation. The CPS dropped McCrossen-Nethercott’s rape case after sleep experts claimed she had experienced an episode of “sexsomnia.”

According to the National Library of Medicine (NLM), sexsomnia is a rare sleep condition that can be characterised as “sexual behaviour during sleep” wherein undesirable physical events or experiences may occur while an individual is in non-rapid eye movement (NREM) sleep. “It can vary from sleep masturbation to sexual moaning and vocalisations, to fondling and full sexual intercourse with a bed partner. In all reported cases, memory of the sexual event is completely or almost completely impaired.”

Little information exists regarding the sleep disorder, primarily due to the fact that most individuals are completely unaware that they have the condition in the first place—therefore, they rarely seek medical attention unless they experience negative consequences.

Sleepstation, an online company providing clinically validated sleep improvement programmes, has emphasised the dangerous implications of sexsomnia and the legal issues that surround the disorder. Establishing sexsomnia in a legal setting is incredibly difficult as the diagnosis measures needed to identify the condition are generally not taken into consideration.

In a number of historic legal cases that have involved sexsomnia, it is often the accused that employ this diagnosis as a defence—claiming that the defendant was not conscious and therefore cannot be charged with sexual assault. Of course, in this instance, the individual who allegedly suffered an episode of sexsomnia was the victim rather than the culprit.

In 2017, McCrossen-Nethercott awoke to find that she was half-naked and had a strong feeling that she had been raped by the man lying next to her. During the documentary Sexsomnia: Case closed? she told the BBC, “I confronted him saying, ‘What’s happened? What have you done?’ And he said something a bit odd I guess, but he did say ‘I thought you were awake’. And he just bolted out basically, and left the door open.”

The victim, shortly after, rang the police and endured forensic testing. The authorities were quickly able to identify the accused man’s semen as present in a number of vaginal swabs.

Three years later—days before the criminal trial was due to commence—lawyers told McCrossen-Nethercott that the case had been dropped following the so-called expert opinion of two sleep analysts who claimed that she may have suffered an episode of sexsomnia, thereby meaning she may have vocally consented to the sexual acts, as reported by The Guardian.

Understandably, the victim was outraged and requested all evidence that had thwarted the prosecution’s attempts. “I don’t see how this can be one isolated incident [of sexsomnia], that just so happens to be the time that somebody I would never have consented to have sex with had sex with me,” stated McCrossen-Nethercott.

Unwilling to give up, the young woman sought out to challenge the acquittal and submitted a victim’s right to review to the CPS and a chief crown prosecutor, independent of the CPS department which had made the initial decision to close the case and forgo a trial.

After a thorough re-evaluation, the independent prosecutor concluded that the case should have gone to trial, where the sleep experts’ evaluations could have been challenged and potentially dismissed.

The prosecutor then sincerely apologised to McCrossen-Nethercott, stating, “I cannot begin to imagine what you have been through and how you feel. I noted during my review the devastating effect of this case on you. I apologise unreservedly for this on behalf of the Crown Prosecution Service although I appreciate that it is likely to be of little consolation to you.”

As of October 2022, McCrossen-Nethercott is actively pursuing legal action against the CPS in hopes that a new trial will be set in motion.

The Cyprus rape allegation case is just another reminder of our flawed justice systems

Earlier this month, after a long and traumatising court case in Cyprus, a young British rape victim was finally allowed to return home. This event sparked international outrage and opened up the conversation concerning the many ways in which the justice system fails women and victims of rape. But the outrage is now beginning to slowly fizzle out, and it is important that we carry on the conversation around justice and women’s rights, to ensure that situations like these do not happen again.

In case you’re not aware of what happened, in the summer of 2019, while on a working holiday, a nineteen-year-old British woman reported being raped by twelve men in Ayia Napa, Cyprus. The woman said she met an Israeli man with whom she got romantically involved on this holiday, and one night, while in the room with him, his friends came and took turns assaulting her and filming it. But a little over a week later, she was the one to get arrested, charged for mischief and jailed for a month.

The victim later revealed that the police had forced her to change her account, leaving her with no choice but to retract her original statement. The woman admitted that she only signed the retraction after hours of unrecorded questioning, without a lawyer present. The next day, the men accused were released and flew back to Tel Aviv, where they were greeted with champagne, celebrating their release while chanting ‘the Brit is a whore’. While this is immensely appalling, what’s more terrifying is how the justice system dealt with the situation and failed the victim.

The court completely dismissed all the defence witnesses, including a statement from a forensic specialist proving she had thirty-five bruises over her body, exerted by force—disregarding them as jellyfish stings. The court also reportedly dismissed a statement from the teenager’s psychologist that proved she was suffering from post-traumatic stress disorder (PTSD). The district judge dismissed her testimony as “childish lies.” Of course, the case is complex but it is uncertain why the police made her retract her statement with no legal expert present, and it is also not the first time that the Cypriot police fails foreign women.

In April 2019, Cyprus dealt with the arrest of its first known and discovered serial killer, a man who only seemed to target immigrant working women, killing a total of seven. Many of these murders could have been easily avoided, as some of his victims were reported missing to the police in 2016, nearly three years prior to discovering their remains, and yet, nothing was done to look for them. This case yet again sparked international outrage, calling the country out for its treatment of immigrant women.

In the British woman’s case, after enduring a long trial full of victim-blaming and humiliation, the court decided to release her and let her return home, with the court’s judge ruling it as a “second chance.” And while for many this can be seen as a resolution and the end to the young girl’s trial, it is really only the beginning of a lifetime of trauma and PTSD caused by both the sexual assault and this trial.

Having grown up in Cyprus as a woman myself, the way the woman was treated did not come as a shock. My friends and I started getting catcalled on the streets at the age of eleven, we have been followed, flashed and masturbated to on public beaches in broad daylight as teenagers on separate occasions, and many of my acquaintances have endured similar sexual assault horror stories, such as this one.

Many of these assaults have gone unreported, and when they have, they had been dismissed as something that simply happens because “you are a girl,” and which you should therefore get over. But these issues are not exclusive to a single country, and sexism, sexual harassment and abuse of any sex or gender exist in every part of the world. And this is the problem, the fact that the Cypriot rape case is just another reminder of many other cases like it.

The justice system is flawed in every country, and trusting that it always makes the right decisions would be naive and inaccurate. But we need to keep calling these situations out: they happen everywhere, in small countries like Cyprus or major ones like the US—just remember the Christine Blasey Ford and Brett Kavanaugh case. This specific incident is now being forgotten, and perhaps it is a good thing to finally let the woman out of public sight. But this doesn’t mean we should let our justice systems get away with how badly these cases are often handled.