The Sleep Sex Defense

Thanks to the euphemism “sleeping together,” there exists an assumption that if two people sleep in the same bed, they have sex. While this obviously isn’t true, there have been many criminal allegations made involving sexual assault and sleep.


The phenomenon of sleepwalking is a well-documented scientific fact. People have been known to eat in their sleep; there’s even video evidence of a man who cooked eggs in his sleep. But can people have sex in their sleep?

This is an important question because the basis of criminal law is mens rea, or the guilty mind. The person who is unconscious while committing an illegal act cannot be held criminally liable. A sleeping man who sexually touches a woman cannot be said to have made a conscious decision to commit the act.

In some cases, criminal defendants have successfully utilized the testimony of sleep experts to explain to juries how a person in a sleep state can perform sex acts unconsciously.


In some sexual assault cases involving children, the alleged victim, when pressed for details, will admit to police or other persons that he or she doesn’t really know whether the assault occurred or if it was a dream. In one such case, the alleged victim was sleeping on a friend’s couch and claimed she was touched during sleep, but when asked specific details she admitted that the entire event may have been a “vivid dream.”

Criminal defense attorneys will often challenge these allegations by using psychologists familiar with sleep paralysis, sleep deprivation parasomnias, and dark adaptation to explain how the event can develop in the accused’s dream state regardless of whether it actually happened in real life.

In child sexual assault cases, pediatric sleep specialists have testified about how sleep affects memories based on a number of factors including:

  1. The medically-recognized number of hours of sleep per night a child needs to function;
  2. The impact that sleep deprivation and sleep restriction can have on children’s perceptions and memories; and
  3. When dreams or nightmares become parasomnias (a sleep disorder that involves abnormal movements, behaviors, emotions, perceptions, and dreams).

In these cases, a criminal defense attorney will challenge whether the alleged assault ever occurred. With no DNA evidence, no witnesses, and no video recordings, the prosecution will have a harder time convincing the jury of the defendant’s guilt.


Berry Law has been defending the Constitutional rights of clients and protecting their futures for decades. If you or a loved one has been charged with sexual assault, contact us today.

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