Legislative Council Fifty-Fifth Parliament, First Session (55-1) 55 1 Parliament of South Australia Legislative Council published Question Time Sexsomnia Sexsomnia The Hon. C. BONAROS Legislative Council Sexsomnia The Hon. C. BONAROS (14:30): I seek leave to make a brief explanation before asking a question of the Attorney about a legal defence term, namely sexsomnia. Leave granted. The Hon. C. BONAROS Legislative Council The Hon. C. BONAROS: As reported in The Australian last Thursday a jury has recently found a 40-year-old Sydney burlesque business owner not guilty of having non-consensual sex with a woman at his apartment owing to the claim that he was asleep when the assault took place. The case follows another case previously reported by the ABC in 2022 wherein a judgement to acquit a man who sexually abused his young daughter was upheld owing to the same defence. Perhaps for all of us, sexsomnia is said to refer to a medical condition where a person is said to exhibit sexual behaviour during sleep. According to the media reports one inquiry of concern to the judge hearing the matter regarded the consequences of committing crimes while a person is unconscious. They also noted there were no laws in that particular jurisdiction about sexsomnia or something happening while somebody has that condition. The issue before the jury at trial was whether the individual in question was having an episode of sexsomnia at the time of the alleged rape or whether he was awake. It was not in dispute that the other individual involved in the incident was indeed asleep when the alleged sexual offending or rape initially started. With that in mind, my question to the Attorney is: given that the claim of sexsomnia has now resulted in a number of acquittals across Australian jurisdictions, has the Attorney-General turned his mind to the issue in the South Australian context, especially given comments that have been made by judiciaries in other jurisdictions that there are simply no laws to deal with this issue in terms of sexsomnia? The Hon. K.J. MAHER Legislative Council Minister for Aboriginal Affairs Attorney-General Minister for Industrial Relations and Public Sector Special Minister of State The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector, Special Minister of State) (14:33): I thank the honourable member for her question. I am not particularly familiar with—and I think there have been a couple of cases maybe in Victoria and the Northern Territory where this has been raised as a defence. The law as it has developed over centuries is quite clear in terms of these sorts of major indictable offences: you need to have the mental element proved to prove guilt in relation to the offences. That is, you have to be voluntarily committing the action that is caused. Automatism, or being able to function without having essentially any control over what you are doing, is something that I know has been raised in a number of different areas and would generally require a very, very significant amount of medical evidence to show that that was there at the time. The law has been developed over a very long time, where you need to know and intend what you are doing. We have in the criminal law provisions for mental impairments—section 8A in the Criminal Law Consolidation Act—for mental incompetence, so it is a well-established principle. If you can prove that these were not voluntary actions, that mental element is not made out. I am happy to take it on notice because, quite understandably, victim survivors of events where the physical element has occurred are concerned if a prosecution is not made out for lack of that mental element. Having said that, it is a very longstanding cornerstone of our criminal justice system that needs to occur. But I am happy to get a bit more information for the honourable member on this specific area, which I am not particularly familiar with.