Jade McCrossen-Nethercott’s rape case was dismissed by the UK’s Crown Prosecution Service (CPS) due to allegations that she had had an episode of a rare sleep condition called “sexsomnia”.
As a result, the CPS found that I was no longer going to be able to get a conviction.
But Jade questioned the decision and spent months reviewing the research
The CPS now admits it was wrong for not having taken the case to trial and apologized to her unreservedly.
The BBC followed Jade’s case as events unfolded.
It was a Sunday afternoon in the spring of 2017 when Jade woke up on a couch to find herself half-naked, her broken necklace on the floor.
The 24-year-old had a strong feeling that she had been penetrated and thought that she had been raped in her sleep.
Three years later, and just days before the man accused of raping her was due to stand trial, CPS lawyers summoned her to an urgent meeting at a South London police station.
They had decided to abandon the process.
The CPS attorney explained that two sleep experts had given their opinions on the case. They said that it was possible that Jade had had a sexsomnia episode and it could appear that she was awake and that the sex was consensual.
Sexsomnia is a medically recognized sleep disorder. People with the condition perform sexual acts while sleeping. A person is considered not to have consented to sexual intercourse if she is asleep, under the law of England and Wales.
However, it also states that a person is not guilty of rape if there was a “reasonable belief” of consent from the other party.
“It just came completely out of nowhere and it was baffling,” says Jade, who had never even heard of sexsomnia before.
“I’ve had two long relationships spanning 13 years, and nothing like this has ever happened to me.”
The CPS decision meant that the case was to be dropped and the defendant would be formally acquitted.
The first time Jade was asked about her dream was at the police station when she went to give her statement.
Responding to a police officer’s question, she explained that she had always been a deep sleeper and had sleepwalked a couple of times as a teenager.
It was a passing comment, forgotten among all the exhausting paperwork, until the case was dismissed.
Jade’s best friend, Bel, had been the one who called the police and started the entire legal process.
He says he remembers hearing Jade’s voice on the other end of the phone. “She was like nothing she had ever heard before. She was hysterical and sobbing, and she was like, ‘I think I was raped.’ When your best friend tells you that, she tears you apart.”
The two friends had been together the night before in a bar in South London. They made up their nails, drank prosecco while putting on their makeup, and walked out arm in arm.
They had a fun night, drinking and chatting. When it was time for the bar to close, Bel called a cab home. Jade decided to go back to a friend’s apartment with some people for one last drink.
Around 02:00 am, with people still chatting around her in the living room, she curled up under a blanket on the corner of the sofa fully dressed and fell asleep.
She says that she woke up at 05:00 and realized that her pants had been taken off, and her bra had been unfastened. Ella Jade says that she saw a man on the other side of the couch that she was lying on.
“I confronted him saying: ‘what happened?, what have you done?’ and she said something a little weird I guess: ‘I thought you were awake'”.
“And he basically ran out and left the door open. And I grabbed my phone and started calling Bel…”
Two male police officers arrived and took Jade straight away for forensic tests. Vaginal swabs detected semen which was then matched to that of the man on the couch.
The suspect did not comment when police initially questioned him.
CPS made the decision to charge him with rape. He pleaded not guilty. A date was set for the trial.
But the trial never took place.
The weight of opinions
Jade was determined to prove CPS wrong by dropping her case, but she had little time to file an appeal.
He ordered the evidence (including police interviews, toxicology results, witness statements, plus reports from sleep experts) and studied it carefully.
He was surprised by what he read, particularly the weight that had been given to the theories of sleep experts.
None of the experts had met her in person, but her opinions had been significant enough that her case was thrown out.
The first expert, who had been instructed by the defense, concluded that there was a “strong possibility” that Jade had had an attack of sexsomnia, and argued that “his behavior would have been that of someone who actively participates in sexual activity, with eyes open and showing pleasure”.
CPS then hired its own expert to match.
It concluded that “a history of sleepwalking, with one episode reported at age 16, in addition to continuous sleeptalking or any family history, is considered entirely adequate to establish a predisposition to sexsomnia.”
Jade was speechless. “I don’t see how this could be an isolated incident. [de sexsomnia]precisely at the moment when someone I would never have agreed to have sex with had sex with me,” she says.
Jade decided to seek an expert opinion and approached Dr. Irshaad Ebrahim at the London Sleep Center. Ebrahim had experience giving opinions in rape cases.
Jade’s case was the first in which she had seen a complaining victim apparently have a sexsomnia. In all the other rape cases she had come across, it was the defendant who claimed to have had a bout of sexsomnia.
The difficulty of having an answer
The BBC carried out an extensive investigation and was unable to find any other UK rape cases in which the defense had argued that the complainant had a sexsomnia.
Ebrahim explained that there is little scientific research and that there is no accurate way to diagnose sexsomnia. But he said the majority of people he has seen with the disorder are men and tend to have a history of sexual behavior while sleeping.
In addition, Jade underwent a sleep test, a polysomnogram, which monitors brain waves, breathing, and movement during sleep.
The test indicated that she snores and has mild sleep apnea, a common condition in which breathing stops and starts again while she’s asleep.
Both were, according to Ebrahim, possible triggers of sexsomnia, so he could not rule out an isolated episode.
Jade wanted to know if she could give him a clear idea of how likely it was that sexsomnia was to blame for what happened.
“That’s the $1 billion question,” Ebrahim said.
“Having a definitive, black-and-white answer to whether it was or it wasn’t is not going to happen.”
Jade still didn’t believe she had sexsomnia and was frustrated that none of the sleep experts could rule out the idea.
She turned to a lawyer to learn more about how the courts treat the disorder as a defense.
Attorney Allison Summers KC has been an advocate in rape cases in which men accused of rape have claimed to have sexsomnia.
He told Jade that sleep experts could rarely definitively establish whether someone had the condition, but just saying “it’s possible” was enough for a jury to reach a not guilty verdict.
“What if I think that as a result of that some guilty people are released or acquitted? Yes, I do. But I usually come back to the point that I would rather that be the case, than that we are convicting people for serious crimes that we really They are not guilty,” he said.
“The only thing I can say is that one hopes that the legal process allows the genuine cases to be separated from the less genuine ones.”
Sexsomnia and other defenses to sleepwalking should always be vigorously fought in court, according to CPS guidelines.
But Jade’s case never made it to court.
Armed with her research, she filed an appeal known as the victim’s right of review.
A chief crown prosecutor, independent of the CPS department that made the original decision to close the case, reviewed all the evidence again.
It concluded that the case should have gone to trial, and that the views of the dream experts and the defendant’s account should have been disputed in court.
A jury “probably” would have convicted the defendant, he said, one of the requirements a case must meet for CPS to bring it to trial.
“I can’t begin to imagine what you’ve been through and how you feel. During my review, I noted the devastating effect the case has had on you,” she wrote to Jade.
“I apologize unreservedly for this on behalf of the Crown Prosecution Service, although I understand it is probably of little comfort to you.”
For Jade, the recognition that her case should have gone to a jury was bittersweet, because CPS cannot reopen the case.
The defendant was officially found not guilty and, thanks to double jeopardy laws, cannot be tried without compelling new evidence.
“There is no hope of justice for what happened to me,” says Jade, but she hopes CPS learns its lesson and prevents others from going through similar experiences.
“It’s the fact of being defrauded by a system that is there to protect you, and they have openly admitted that they were wrong,” she says.
In 2021, just 1.3% of all recorded rape cases in England and Wales ended up in prosecution, according to Home Office figures.
CPS say it is “committed to improving all aspects of how life-changing crimes like rape are dealt with, and are working closely with law enforcement to transform how they are handled.”
Jade has sued the CPS for damages.
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