Sleepwalking – Nightmare for the courts


Ayako Kado

Larry R. Fisher, Instructor

University of Colorado

International English Center

May 9, 2000


Thesis: Recent medical research on sleepwalking has presented the legal system with a dilemma about whether sleepwalkers should be acquitted or convicted of the crimes.

    I.  Introduction
        A.  Background
            1.  Cases
            2.  Verdicts
            3.  Description
        B.  Topic 
            1.  Medical research
            2.  Dilemma for the courts 
        C.  Thesis 
    II. Medical aspect 
        A. Description of sleepwalking 
           1. Non-REM sleep (non-dream sleep) 
           2. Low reaction to stimulus
           3. Disconnection from daily life
           4. Emotionless gaze 
           5. Brain structure defect 
           6. Lack of memory
           7. Complicated automatic acts 
           8. Short episodes 
        B. Occurrence 
           1. Usualness in childhood 
           2. Serious problem in adulthood 
           3. Prevalence at age 12  
           4. Genetic links 
        C. Exacerbation 
           1. Drugs 
           2. Alcohol 
           3. Stress 
        D. Treatment 
        E. Message to the justice system 
           1. Brain disorder 
           2. Lack of responsibility 
           3. Difference from daily behavior 
    III. Judicial aspect 
        A. Cautious reaction 
           1. Twinkie defense  
           2. Circumstantial evidence 
        B. Inconsistent verdicts 
           1. Guilty cases
           2. Innocent cases
    IV. Discussion 
        A. Excuse as a defense 
           1. History 
           2. Examples 
           3. Automatism 
        B. Judicial bases for criminal guilt 
           1. Mens rea 
           2. Actus rea 
        C. Noninsane automatism 
           1. Disease of the mind 
           2. Disorder of sleep 
        D. Circumstances for guilt or innocence 
           1. Guilt: Motivation, history, complexity, remorselessness 
           2. Innocence: History, motive, normal behavior 
    V. Conclusion

    Dr. Kryger says, "We don’t know everything there is to know about sleepwalking. In 10 years, maybe we’ll find out he was telling the truth. You need to be King Solomon to figure it out" (qtd. in Tresniowski 56-9). "He" is the person who stabbed his wife to death while, he claimed, sleepwalking. He was found guilty of murder in the first degree (56-9). Sleepwalking as an excuse for criminal conduct has brought the courts a "big headache." The dilemma for the legal system involves the decision about whether the sleepwalker should be acquitted or convicted of the crime. Juries need the wisdom of King Solomon to undo this "knotty problem."

    There are many anecdotal stories about sleepwalking. Sleepwalking reminds many people of amusing episodes. However, it is not a laughing matter for some people. When sleeping, some sleepwalkers attempt suicide (Lauerma 206-211). Some binge on food or become violent to others. Sleepwalkers have even murdered people during their episodes even when the perpetrators had no reason to kill the victims.

    The verdicts of the courts have not been universally consistent with each sleep-related violence case. Some sleepwalkers have been found guilty, and some have been set totally free. There is a case in which a man fatally shot his wife and insisted that he remembered nothing about the event. He said his actions must have taken place during a confused arousal caused by his severe sleep apnea in which patients stop breathing during sleep and them suddenly restart breathing with a hoarse snore. The jury rejected this defense and found him guilty of first-degree murder. In a contrasting case, the jury ultimately found a man who had severe sleep apnea and night terrors and killed his wife innocent after two convictions (Brody C5). By their nature, the murder cases involving supposed sleepwalking are of medical and legal interest. In fact, sleepwalking as a criminal defense has opened up considerable debate within both the medical and legal communities. For one example, the medical issue surrounding sleepwalking involves the genetic and organic nature of the condition, in which the sleepwalker is not personally responsible for the conduct. As for the legal profession, the extent to which the sleepwalker’s behavior seems to be sane or insane is a major issue.

    Although Kales notes its medical features have been understood since Hippocrates, researchers have lately started to discover the "pathophysiological basis and possible etiologies" of sleepwalking (Ozbayrak and Berlin 135). Sleepwalking takes place during non-REM sleep (non-dream sleep) – typically the deeper stages of sleep known as slow-wave sleep, stages 3 and 4 (Brody C5). A sleepwalker’s brain is partly asleep and partly awake (Perl 58). Sleepwalkers who emit gruesome screams, who sweat copiously, and who appear terrified in the course of a night terror are not dreaming (Brody C5). Sleepwalkers are not acting out their dreams (Ozbayrak and Berlin 135); in other words, behavior while sleepwalking may be disconnected from the person’s daily life. Both doctors and people in general have believed that sleepwalkers need psychiatric care. Now it is said by doctors that the primary cause of sleepwalking is a "slip-up" in the brain structure which controls sleeping stages (Brody C9).

    Sleepwalking has a number of distinct characteristics. Sleepwalking distinctively accompanies recurrent episodes of complicated automatic acts, such as arousal, mobility and verbalization. A sleepwalker’s ability to react to stimulus is very low. He or she has an emotionless gaze which is commonly paired with inability to communicate with people who try to wake the person (Thomas 19). Kales reports sleepwalkers are distinctively "deep sleepers" and have little memory of dreams and are difficult to wake up (Broughton et al. 261). He or she typically has no memory of the episode the next day. Most of the episodes are less than ten minutes long (Perl 58).

    Sleepwalking, although common in childhood, gradually decreases in adulthood. Three separate sources claim that sleepwalking in children is very usual, and 15 to 30 percent of children have this experience at least once (Ozbayrak and Berlin 135). Sleepwalking episodes commonly begin between four and eight years of age. Most cases occur at the age of around twelve and disappear gradually in adolescence (Thomas 19). Three to four percent of adults sleepwalk at least once (Perl 57). It is uncommon for sleepwalking to start in adulthood (Thomas 19). The condition of adult sleepwalkers with abnormal acts in their sleep has an inclination to be permanent and can cause grave results (Brody C9). In other words, if the sleepwalking continues to adulthood, it can be a serious problem.

    Recent research has indicated a strong genetic link in sleepwalking. Dr. Kushida says that sleep problems such as sleepwalking and night terrors often occur in families. A child whose both parents have had these disorders has a 66 percent possibility of showing one or the other or both. A child who has one parent with these disorders has a 45 percent chance. However, even if no parent experienced these disorders, 22 percent of the children will (Brody C9). The genetic connection further strengthens the case for excusing the sleep-related criminal behavior.

    Even though a genetic brain disorder, sleepwalking can still be exacerbated by external factors. There is proof that drugs or alcohol may prompt or aggravate sleepwalking (Thomas 21). And it is more and more accepted that sleepwalking can be aggravated by psychological stress (21).

    Researchers have found that the disorder that leads to sleep-related violence can usually be treated effectively with one or more medications, including antiseizure drugs and tranquilizers, that calm the overly active parts of the brain and help to stop partial arousals during sleep (Brody C5). However, sleepwalkers quite often have no medical care for their sleep problems until a tragedy happens (Brody C9).

    The current medical findings of sleepwalking tend to release sleepwalkers from responsibility for their actions because this is a disorder of the brain. In other words, the person has no control over the conduct. In fact, the conduct has little or no connection to their daily behavior. However, the legal profession seems to feel uncertain about recent medical analysis of sleepwalking even though the contemporary justice system greatly relies on medical evidence to reach its verdicts.

    Medicine’s improved understanding of the human body has presented the justice system with a new dilemma. For over a hundred years, the courts have excused crimes when the criminal was not responsible for the behavior due to ignorance, insanity, automatism, etc. The new dilemma is that various kinds of legal defense such as sleepwalking are firmly supported by medical evidence. The justice system is faced with a medically excusable defense that has the potential of being abused. In fact, Dr. Kryger writes, "The potential for sleep disorder to become the ‘Twinkie’ defense of the 21st century is frightening" (qtd. in Brody C1). "Twinkie defense" is the case of a murderer in San Francisco who succeeded in attributing his act to a sugar rush in 1979 (Tresniowski 56-9). Some experts are reluctant to use sleepwalking as a total legal defense.

    The courts seem reluctant to accept every sleepwalking defense depending rather on the circumstantial evidence. There are some cases in which sleepwalkers were found guilty. A man who stabbed his wife to death during, he claimed, sleepwalking was found guilty of murder in the first degree. The prosecutor said that his behavior during the fifty-minute event had too much complexity and was too different from the features of sleepwalking. The prosecutor insisted that his actions were very sensible although a sleepwalker’s conduct is usually not logical. On that night, the perpetrator kept his contact lenses in although he normally took them out, put a Band-Aid on his bleeding hand, and hid his clothes after the murder (Tresniowski 56-9). In another case of a man who shot his wife to death when, he insists, he was asleep, the jury also found the man guilty of first-degree murder. The jury reached the verdict partly because the man had a history of violence toward his wife during waking hours and partly because he was completely remorseless over her death when the police arrived (Brody C5). This case indicates that the court places importance on the defendant’s everyday behavior and wants to see the accused’s remorse over the criminal act.

    In addition to guilty verdicts, juries also hand down innocent verdicts to sleepwalkers if circumstances also point to innocence. There was a case in Canada in which the court found a man who killed his mother-in-law and attempted to strangle his father-in-law innocent because of sleepwalking. The jury concluded that his crime likely happened when he was sleepwalking because his behavior while sleepwalking was contrary to his daytime behavior (Broughton et al. 254). The nonexistence of any motive and a good relationship between him and the victims troubled the jury. In addition, his true grieving and absence of other medical causes further convinced the jury of the unusual nature of the crime.

    The latest medical findings on sleepwalking appear to remove responsibility from the individual who is unconscious at the time and has no recollection of the event. Such a medical position presents the justice system with a number of philosophical issues. When a person conducts "purposeful" acts without being aware or in control of his or her actions, this is called "automatism" (Reznek 29) and automatism has been an acceptable legal defense (Reznek 230). Sleepwalking is commonly recognized as a "state of automatism" where the person is unconscious of and has no manipulation of his or her acts (Broughton et al. 254). The sleepwalking defense seems to fit well with a long history of excusing persons for various reasons. Throughout history, the courts have been willing to accept a number of excuses because there would not be enough room for all criminals in jail. For example, the courts excuse on the basis of ignorance. In other words, if the person is unaware of poison in a cup of tea offered to a friend, the verdict will be not guilty. The courts also excuse insanity because the person is not in control of his or her behavior. In fact, the justice system is philosophically based on two major requirements for guilt: "mens rea" or the criminal mind with the intent to cause harm, and "actus rea" or the presence of the criminal act itself (Thomas 17). Consequently, it would appear that the sleepwalker lacks mens rea and thus qualifies for excuse. The Supreme Court of Canada remarks that the basic precepts of the criminal law are that only people who behave voluntarily with "requisite" intention should be punished by criminal sanction (Broughton et al. 263).

    The situation for the sleepwalking defense may not be that easy in the courts. There appear to be strong similarities between the sleepwalking defense and the insanity defense. For centuries, the courts have accepted NGRI (not guilty by reason of insanity) as a legitimate decision for defendants who have mental problems. However, the sleepwalkers do not appear to be insane, at least when they are conscious. Thus the courts find it difficult to decide if the sleepwalker is sane or insane. The court’s final decision on this determination will affect the need for treatment or ultimate release. Both sleep specialists and even some of the law now accept sleep-related violence as a kind of "noninsane automatism" – an act done by a sane person but without "intent, awareness or malice" (Brody C5). In fact, the Supreme Court of Canada found sleepwalking to be a phenomenon of "noninsane automatism" and the medical testimony that sleepwalking does not express a "disease of the mind" but, rather, a disorder of sleep was admitted (Broughton et al. 263). Sleepwalkers are normally frightened by what has happened and have no memory of the event (Brody C5). If sleepwalking is classified as noninsane automatism, the defendant should have the right to be acquitted totally and be granted freedom. However, if the "automatic acts" are believed to result from a "disease of the mind," they are classified as "insane automatism" and the person should be forced to be hospitalized in an establishment for the "criminally insane" for uncertain time (Broughton et al. 263). The disagreement over treatment or release has separated sleepwalkers, who support total acquittal, and some doctors, who support treatment. Dr. Kryger insists that a person who commits a violent crime while asleep should not be blamed for the conduct, but the courts cannot return that person to society without treatment (qtd. in Brody C5). In defense of total acquittal, sleepwalkers rely on research which seems to indicate that reoccurrence of a crime is unlikely. In one trial, the defense presented the fact that there are no written cases of recurrent violent sleepwalking and argued that reappearance usually must be infinitesimal (Broughton et al. 263). With little possibility of reoccurrence, treatment would seem to be unwarranted.

    In the practical jury cases, the courts do not give carte blanche to all sleepwalkers and are still careful about each decision. The juries look at details of each case’s circumstances. Both guilt and innocence seem to be decided by formulaic scenarios. In guilty cases, the juries look for probable cause. Sleepwalking is usually a brief, unorganized episode. However, if the person’s sleepwalking behavior is complex and logical, juries take notice. Motivation for the conduct, a history of violence in the past, premeditation of the crime and remorselessness over the perpetration are even larger factors. The formula for an innocent verdict has opposite features. In innocent cases, the sleepwalker has a history of sleepwalking, has normal day behavior and does not have a motive for the act.

    It seems that the courts are in a period of transition. Recent medical findings appear to force the courts to accept sleepwalking as a legitimate legal defense based on the history of excusing on the basis of mens rea because sleepwalkers are not conscious and do not have intention. However, in actual jury cases, the verdicts are not consistent depending on particular circumstances of each crime. The juries seem to be cautious about their decisions and are worried that their innocent verdicts would give an impression to the public that all sleepwalkers can be acquitted totally easily. If a sleepwalker who commits a crime can receive total freedom by reason of noninsane automatism, a question remains. If the person is not insane but normal, and commits a crime, why does the person not have to do time in jail? The courts may have made a mistake by calling sleepwalking "noninsane automatism," which the medical profession prefers to call a "disorder." A better term for the courts might have been "disordered automatism," thus signaling an abnormal behavior. This release of normal people may seem to be unfair to the general public. In response to social concern over the release of so-called "normal criminals," there is a movement to eliminate all excuses from the judicial system. In this case, all persons found guilty of crimes would either be incarcerated or treated. This backlash on the part of the general public could even ironically result in the disappearance of the long-standing and well-accepted NGRI. In the future, the courts are going to continue to face the philosophical issues involving the release of normal people who commit crimes.

    Brody, Jane E. "Help for Sleepwalking and Night Terrors." {NewYork Times} 17 Jan. 1996, late ed.: C9.

    ---. "When Can Killers Claim Sleepwalking as a Legal Defense?" {New York Times} 16 Jan. 1996, late ed.: C1+

    Broughton, R., and Et Al. "Homicidal Somnambulism: A Case Report." {Sleep} July-Sep. 1994: 253-64.

    Lauerma, Hannu. "Fear of Suicide During Sleepwalking." {Psychiatry} Summer 1996: 206-11.

    Ozbayrak, Kaan R., and Richard M. Berlin. "Sleepwalking in Children and Adolescents." {Clinical Handbook of Sleep Disorders in Children}. Ed. Charles E. Schaefer. London: Jason Aronson Inc., 1995. 135-45.

    Perl, James. {Sleep Right in Five Nights}. New York: William Morrow and Company, Inc., 1993.

    Reznek, Lawrie. {Evil Or Ill? Justifying the Insanity Defense}. London: Routledge, 1997.

    Thomas, Thomas N. "Sleepwalking Disorder and Mens Rea: A Review and Case Report." {Journal of Forensic Science} Jan. 1997: 17-24.

    Tresniowski, Alex. "Troubled Sleep." {People Weekly} 12 July 1999: 56-59.