28-year old Justin Cox is on trial in Orlando, Florida, for the crime of child molestation (lewd & lascivious act) of a 12-year-old girl. His defense? He was sleepwalking at the time, and as he was not conscious, had no intent to commit the crime.
A defense to any crime requiring specific intent (which is essentially the state of mind to intend that the specific act itself be committed; the opposite is a “general intent” crime, which is intending to do an act and the act itself is illegal – I could write an entire bLAWgger dissertation on that issue) is the lack of intent to commit the specific crime. Insanity is a common defense in that situation: the person lacked the capcity to form the intent due to a menal illness, and either did not know what he or she was doing, or if he or she did, did not know that it was a crime. Jurys rarely buy such a defense unless there is a substantial history of mental illness and the defense expert witnesses are compelling and convincing.
Sleepwalking (known by the white-coat crowd as “somnambulism”) is an interesting defense. From a defense perspective, it could likely be effective if a defendant had a history of sleep problems, especially if there was expert testimony that he or she had been through a sleep study and found to have had documented bouts of sleepwalking. The study of sleep disorders is a highly-evolved field of science, and under the rules governing the admission of expert testimony, would in all liklihood be permitted as a defense and the expert allowed to opine as to the ultimate issue: did the defendant have the intent to commit the crime.
From a prosecution standpoint, if there is no history of sleepwalking and no expert to verify the claim, it would be easy to shoot holes in the defendant’s story. If a defendant simlply comes in to court and makes the claim for the first time, it appears contrived and a jury will likely reject it. On the other hand, if there is an expert to back the defendant up, the prosecutor would have his own expert review the case, the medical history, and the defendant’s story to contradict the defense.
However, the “sleepwalking defense” is not unique. In 1992, the Canadian Supreme Court upheld the acquittal of Kenneth Parks, who said he was sleepwalking when he drove 14 miles, stabbed his mother-in-law to death and seriously injured his father-in-law. In the early 1980s in Arizona, attorneys for Steven Steinberg called psychiatrists who testified he may have been sleepwalking or in a “dissociative mental state” when he stabbed his wife 26 times. Steinberg was found innocent on the ground he was temporarily insane when he killed his wife.
However, there are plenty of cases out there where is has NOT been successful and the defendant has been convicted. In 1999 a Phoenix man, Scott Falater, was convicted of murder for stabbing his wife 44 times, dragging her to the swimming pool and holding her head underwater, then changing his clothes. Falater claimed he was fast asleep and remembered nothing. A Colorado jury rejected the sleepwalking defense of Stephen Reitz and convicted him of first-degree murder, after his claim that he was sleepwalking when he stabbed and beat his married girlfriend to death in a hotel room. Reitz told authorities he woke up to find the woman dead at the foot of his bed in hotel room, and that he didn’t remember what happened, but said he had “flashbacks” in which he recalled that he dreamed of struggling with a male intruder. He also said he figured he killed the girlfriend, because stab wounds on the back of her neck resembled wounds he would inflict to kill sharks he caught. (**bLAWgger NOTE: this is an example of not having good experts, and simply asking a jury to buy a phony defense).
The only case I can find in Florida on sleepwalking is from 1903, and not a criminal case. Probably because the courts are not asked to pass on whether it is a viable defense or not. You see, under Florida law, a judge is pretty much required to allow a defendant to present virtually any defense supported by some evidence. So, unless a judge somewhere had prevented a defendant from presenting such a defense, and the defendant appealed that decision after a conviction, there wouldn’t be any reported case addressing whether it’s viable or not.
From my perspective as a criminal trial lawyer, I could see the “sleepwalking defense” work where there is an act of violence, like a fight or a stabbing. The argument is that the defendant somehow dreamed or imagined that he or she was being attacked and fought back in self-defense. But in a case where a sexual act is performed on a child . . . I am not sure a jury will go for that. Especially when Cox got on the stand yesterday and let the defense fly for the first time, with the only apparent support for the claim coming from his mother, who testified that the disorder runs in the family. Apparently there are no experts to back him up, and he was drinking heavily on the night of the incident. (**bLAWgger note: another example of not having good experts, and simply asking a jury to buy a phony defense. Good luck with that, Justin).
JB
