Yes, this condition actually exists.

This week, a Sydney man was found not guilty of rape after telling a court he was experiencing an episode of "sexsomnia".

Timothy Malcolm Rowland, 40, was accused of having non-consensual sex with a woman at his Sydney apartment on August 26, 2022, after the pair spent a night out together.

They'd been at a bar together, had drinks, taken a bath — then she went to sleep. Hours later, she says she woke up to find him having sex with her.

Rowland argued he was asleep, too.

Yes, you read that right. And I'm sure you have questions.

Watch: Timothy Rowland cleared of rape charges due to a 'sexsomnia' episode.

What is sexsomnia?

Sexsomnia, sometimes called sleep sex, is a real sleep disorder. It's recognised as a type of parasomnia, a condition that causes people to engage in unusual behaviours while asleep, according to the Sleep Foundation.

"In the case of sexsomnia, people engage in sexual behaviours such as masturbation, sexual movements, sexual aggression, or initiating sex with another person.

"Though their eyes may be open and they may make sexual noises, they are asleep during these activities and unaware of their behaviour once they are awake," it states.

Sexsomnia has been officially recognised since 2013, when it was included in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).

The Sydney sexsomnia rape trial.

The court was told that Rowland and the woman had been drinking at a bar in Darlinghurst before heading back to his apartment at about 1am.

They kept drinking, took a naked bath together, and then the woman went to sleep in Rowland's bed.

At about 6am, she allegedly woke up to find him having sex with her. She pushed him off, jumped out of bed, and left the apartment.

The defence and prosecution both agreed that Rowland had sexsomnia, and that the woman was asleep when the sexual act began. The question was: Was Rowland asleep too? Or was he fully aware of his actions?

The jury's tough verdict.

On Thursday, the jury returned a not guilty verdict, but not before asking the judge several questions — including about what happens when a crime is committed while someone is unconscious.

Judge John Pickering told them they had to focus on existing laws, not the laws they wished were in place.

"This is a really dangerous logic," he said.

Someone could not be found guilty of a crime they did unconsciously, 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."

Jurors also asked what sort of evidence could prove someone was awake during such an act. And, if there was insufficient evidence, why had the case gone to trial in the first place?

The judge reminded them it was none of his business why the Director of Public Prosecutions had decided to pursue the case in court, and 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.

A genuine condition or a dangerous loophole?

While sexsomnia is a real condition, its use as a defence raises questions about whether suspected rapists could evade justice by claiming to have the disorder.

The diagnosis is relatively new in the field of psychology. But Australian courts have accepted the credibility of studies supporting the view that sexsomnia is a state where the individual has no volition, and any action performed is beyond the individual's control, defence lawyers Dogue and George say.

Sexsomnia has been used as a defence before, both in Australia and overseas. In some cases, medical evidence supports the claim. Sleep studies, medical histories, and expert opinions can be used in court, but experts warn it's incredibly difficult to disprove.

And when the justice system demands proof "beyond reasonable doubt," that uncertainty can work in the accused's favour.

In the UK, a rape case was dropped after the accused claimed it was actually the woman who had sexsomnia.

Jade Blue McCrossen-Nethercott insisted she had no history of the condition. But sleep experts couldn't rule out the possibility of an isolated episode, so prosecutors abandoned the case. The UK's Crown Prosecution Service later apologised to her and paid damages for failing to challenge the defence.

Independent sleep expert Dr Neil Stanley, who has provided expert evidence in UK trials where sexsomnia was raised as an issue, said some claims of sexsomnia are legitimate — but others are not.

"It is being used cynically," he told The Guardian. "There are cases that are in the public domain where it is clear that they're just chancing their arm. Because, of course, if it is sexsomnia, you're found not guilty. Judges haven't a clue. Juries haven't a clue. So it's worth a try."

With no legal framework to address sexsomnia defences, cases like this one will continue to test the justice system. And survivors will continue to ask: How can the law recognise their trauma, yet still let perpetrators walk free?

-with AAP

Feature image: AAP.