Meg vanSteenburgh

21st Century Legal Issues

Mind Drugs Research- Sexsomnia



                  The most interesting facet of mind drugs affecting the future of our legal system to me is in the criminal context, especially in the arena of defenses. Even now there are instances where mind drugs are providing valid defenses for some crimes, although it doesn’t always work.

                  Ambien, a prescription sleeping pill, has been linked to a growing number of traffic accidents in recent years. Some people claim that Ambien actually caused them to sleep-drive. Notably, Patrick Kennedy, who was involved in a late-night car crash last year, said that it was his use of Ambien that caused him to get into the car crash and not remember any of it, including the citations that resulted from the accident. Susan Cruzan, a spokeswoman for the F.D.A., maintains that the current warning labels on Ambien which say that it should not be used with alcohol and in some cases could cause sleepwalking or hallucination were adequate.

Approximately 26.5 million people were prescribed Ambien in this country last year alone. In the case of Ambien being used in conjunction with alcohol, it does not seem that the requisite intent is lacking for a driving offense; indeed, we do not allow even those individuals who become blackout drunk to escape culpability. In addition to that, consuming alcohol and Ambien together goes against the F.D.A. warning label, so you are assuming the risk that something may go wrong. However, what about the innocent person who takes only the Ambien, prepared for a full night of sleep, and gets out of bed to sleep-drive into an accident? I suppose it should be on par with holding the mentally imbalanced culpable for their torts; out of two “innocent” parties, it is the one who caused the damage who should be at fault.

However, in the criminal context, could you really convict someone for vehicular manslaughter when they did not even have the intent to get into a car? Then again, when someone with epilepsy drives without taking their seizure medication they are responsible, so should we only prosecute people who have a history of sleepwalking and are aware there is a risk?

                  For a more interesting issue of intent and cause you have the phenomenon of sexsomia. As early as 1996, sexsomnia or SBS was identified as a medical condition that may place one at risk of being accused of sexual assault. Thus, if a person is aware of their SBS and takes it seriously, this knowledge may carry with it some accountability for not taking actions to prevent sexual misconduct.

                  Sleep sex or sexsomnia is a form of non-rapid eye movement (NREM) parasomnia (similar to sleepwalking) that causes people to commit sexual acts while they are asleep. Instances of sexsomnia are purportedly more common if the individual is under the influence of alcohol or sleeping medication. Mostly because the sleeping medication makes it more difficult for the sexsomniac to wake up from the parasomnia and also affects memory after the event.

The first doctor to coin the term, "Sleep sex" is Dr. David Saul Rosenfeld, a neurologist and sleep doctor from Los Angeles, CA. The proposed medical diagnosis is NREM Arousal Parasomnia - Sexual Behavior in Sleep, and is considered to be a distinct variant of sleepwalking/confusional arousals (ICSD 2). The condition was defined by three researchers from the University of Toronto and the University of Ottawa in a paper called "Sexsomnia — A New Parasomnia?" published in the Canadian Journal of Psychiatry in June 2003.

Sufferers are often aware of their behavior for a long time before they seek help, often because they are not aware that it is a medical disorder or for fear that others will judge it as willful behavior rather than a medical disorder. However, the reality of the condition has been confirmed by sleep disorder researchers who have made sound and video recordings of patients with the condition and observed unusual brain wave activity during the episodes similar to that experienced by other parasomniacs. It is a mind/body disconnect that occurs during sleep, sometimes enhanced by medication such as sleeping pills. In many cases it is a pre-cursor to neuromuscular disease and is treated with muscle relaxants and other medications.

The first research paper that suggested that sexual behavior during sleep may be a new type of parasomnia was published in 1996. Later, several papers were published describing the problem and suggested that problematic forms of sleep sex are medically treatable "conditions". Sexsomnia is not always problematic or extreme for those who experience it or for their partners. There is a great variety in both the frequency and levels to which people are affected by this disorder.

SBS is mentioned in the most current (revised) edition of the International Classification of Sleep Disorders (ICSD-2), which is the diagnostic manual used by sleep medicine practitioners to make diagnoses. While SBS is mentioned in the ICSD-2 and recent medical research suggests sexual behavior in sleep is a unique form of sleep-related behavior in the class "parasomnia" (Shapiro et al, 1996; 2003; Schenck & Mahowald, 2005) and over the past five years information in the popular realm has become available (e.g., articles have appeared in Cosmopolitan , Redbook, Details and a Web search will yield a number of information sources), the community of legal and health professionals and the lay public remains incredulous when it comes to SBS and its causes.

In fact, when one discovers their own SBS, usually after being informed about their behavior by a bed partner, they are unlikely to believe that they are, themselves, behaving in such a fashion. Often this is a source of conflict in couples as it is embarrassing to accept it as fact. Even when one reports another's (that is, a person complains he/she has been fondled, etc., by a person who clearly appeared to be asleep), to a friend or health care provider in an attempt to try to get some support and to encourage their partner to treat his/her SBS, these persons cannot expect others to believe their story-that they have been "victimized" by a sleeping individual.

                 Of course the evidentiary proof required, such as a history of sleep trouble is important, but proving that the person was asleep when they committed the crime is the tricky part. For instance, a college student was charged with sexually assaulting 10 women in a dorm, but claimed that he didn’t remember a thing and it must have happened while he was asleep. Amazingly he was cleared. Another man, in Canada, was cleared of sexual assault based on evidence that he had previously had “sleep sex” with girlfriends.

A Canadian television documentary team in Toronto is looking for people affected by sleep sex in any way, who are willing to be interviewed about their experience.  The director of the project is trying to make a personal documentary about confronting his own issues with sexsomnia.  As part of the film, he is going to go through diagnostic testing at a sleep lab, conversations with his family, friends, former girlfriends, doctors.   He needs other people to talk about their own experiences of sleep sex and to talk about how sleep sex, their own or that of others, has impacted their lives as well as causes and possible solutions.

If Ambien could cause both the behavior and the lack of memory (as in the Kennedy case) this type of defense for sexual assault could become quite prevalent in our legal system. Not only in the criminal context, but in civil cases as well. Could someone who had been convicted of sexual assault because of sexsomnia then be able to sue the manufacturer of the sleeping pill that he alleges caused the behavior because of an insufficient warning label?