Jurors have acquitted a man diagnosed with “sexsomnia” of rape after being told to determine their verdict based on existing sex crime laws rather than laws they wished were in force.
Timothy Malcolm Rowland, 40, was today found not guilty of having non-consensual sex with a woman at his Sydney apartment on August 26, 2022, after the pair spent a night out together.
The 40-year-old told the the seven-day jury trial that he was experiencing an episode of sexsomnia, a medical condition where people exhibit sexual behaviour during sleep.
The not guilty verdict came hours after jurors sent a series of questions to Judge John Pickering at Sydney’s Downing Centre District Court.
One inquiry of concern to the judge regarded the consequences of committing crimes while a person was unconscious.
“This is a really dangerous logic,” the judge said.
A jury should not be determining a case based on laws it wished were in place but instead on the current laws, he warned.
Doing this would be unfair on any accused, he said.
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 sexsomnia 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 rape, returning to his apartment 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.
About 6am, the woman allegedly woke to find Rowland having sex 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 sexsomnia.
But the issue before the jury was whether he was having an episode at the time of the alleged rape or whether he was awake.
It was also not in dispute that the woman was asleep when Rowland began having sex with her.
Earlier today, 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.
Support is available from the National Sexual Assault, Domestic and Family Violence Counselling Service at 1800RESPECT (1800 737 732).
