Swedish Man Acquitted of Rape Due to ‘Sexomnia’

Is Sexomnia a real thing?

Although this sounds like a silly legal argument for people who don’t know much about it, courts and juries are starting to realize that this can be a real phenomenon, especially with the use of sleep aids.

“A Swedish man who was convicted of rape had his charges overturned after an appeals court found the man could have been asleep during the attack and cited ‘sexomnia’ as a reason he should be released.” More information here.

Article also posted here:

A Swedish man who was convicted of rape had his charges overturned after an appeals court found the man could have been asleep during the attack and cited “sexomnia” as a reason he should be released.

Mikael Halvarsson was acquitted of rape this month after experts said he was asleep during the attack and had no memory of the incident, according to a translated court ruling from the Sundsvall appeals court in Sweden.

Halvarsson was accused after the victim woke up as Halvarsson allegedly assaulted her on April 2, 2014. They had been sleeping in the same bed, but they each had their own blanket, according to the translated court documents, which also noted that she called the police the next morning, and they found Halvarsson still asleep in her bed when they arrived.

In the appeal, Halvarsson’s previous girlfriend testified that he had previously tried once to have sex with her when she was sleeping. When she stopped him, he then acted confused and asked what had happened.

His mother also confirmed that he had disturbed sleeping patterns before.

While the term sexomnia may seem made up for the purposes of getting away with a crime, Dr. Kingman Strohl, a professor of medicine and director of research at the Sleep Center at Case Medical Center in Cleveland, confirmed it’s an actual medical diagnosis that includes unintentional sexual behaviors during sleep.

Advice Column: The dad of my daughter’s friend is on the sex offender registry.

Dear Prudence,

My husband and I have a 7-year-old daughter. We are friends with another family who have a child the same age. They are a nice couple. The husband is not very talkative but never gave me any odd vibe. A while ago I was trying to find the number for their home business and when I searched his name the sex offender registry came up! My husband talked to him, he was very upset and said when he was 18 years old he had a 14-year-old girlfriend and the parents reported him when they found out they were having sex. I have no reason to doubt this, but I can’t verify it because the offense occurred in another state that does not post details online. My concern is that we have already hosted their daughter for a sleepover, and now my daughter is asking when she can go over there. Before I knew this information I had no qualms about the family, but now that I know I feel obligated to “do something.” What should I do?


Dear Stumped,

This man, when he was a very young man, exercised gravely bad judgment by being a legal adult who had sex with a girlfriend below the age of consent. He paid a huge price for this, and if his story is accurate, he is exactly the type of person who should not be on the sex offender registry. He has been held accountable for his actions, he is no threat to the community (including your daughter), and what he did was he was a teen should not haunt him the rest of his days. I have written that our burgeoning sex offender registry (now about 750,000 people) is out of control. I’ve been heartened by how much support I’ve gotten from readers. I think the public understands better than the legislators how foolish and useless this is. The registry doesn’t narrowly track the worst of the worst, but is a blunt weapon that politicians love because it allows them to say they’re tough on crime. So a lot of low-level offenders become lifetime pariahs, which often ends up making victims of their own families. You believe the father was telling the truth, and so I understand you regret ever stumbling upon this information. But now that you do know he’s on the registry, you will have a gnawing doubt about it if you can’t confirm his account. See if the information on this Department of Justice website is useful in helping you get details. If it doesn’t, and you don’t want to let your daughter sleep over without being certain, your husband should go back to the other father. He can explain he hates to reopen this subject, but you two want your daughter to have sleepovers with their daughter, and so your husband feels obligated to see something that confirms the account, while reassuring the other father that you two will not discuss this with anyone else. Let’s hope you get the peace of mind you desire, so you can relax and go back to seeing them as the lovely couple whose child is your daughter’s friend.



Going Through the Discovery

I recently had the opportunity to visit one of my clients in jail so that we could review the discovery in his or her case. This particular person was nearly too embarrassed to even look at the discovery (the State’s proof) because some of it could have been viewed as graphic or offensive in nature. However, my client quickly relaxed and saw that going through the discovery is not a “what were you thinking” session, not a “they’ve really got you now” session, not a “take the offer immediately or I’m off the case” session, or anything similar.

You see, I don’t treat my clients like patients going to the dentist and getting scolded for not flossing regularly. I look at the case like a trial lawyer – meticulously analyzing the various ways in which the trial could occur.

Before even meeting with a client, I look at the discovery beforehand and visualize the case as applied to the rules of Criminal Procedure and Evidence. When I meet with my client, I then begin by telling him or her to picture walking into the courtroom and sitting beside me. I explain where everyone would be located in the court room, in what order the trial would occur, and what testimony can likely be expected from each witness.

I explain how each piece of evidence in the discovery could be used to try to show specific elements of the offenses charged, how the pieces interact, what rule of evidence would possibly allow it to be introduced (or why I believed we could make an argument barring its admission), and what defenses and witnesses we could present to refute these allegations and the related evidence. I explain how the prosecutor will challenge our facts and how we will counter the prosecutor’s facts.

I explain the best arguments for both sides. I talk about how juries operate – what decisions they can make, what factors they commonly rely on, and what attitudes and beliefs a favorable jury would likely have in this case. I talk about jury instructions, the burden of proof, the standard of proof, affirmative defenses, and lesser included offenses. I suggest possible themes and labels to use in the case, what steps will be needed to ensure that we have the proof that we need, and what a likely timeline would be to ensure that we are prepared before the trial date.

Only after the client and I have discussed these topics, I talk about the State’s offer. In this way, my client does not think that I only want him or her to take the plea. I make it clear that my client is free to take the offer or not take the offer. I am honest when I discuss the likelihood of winning the trial versus the potential range of punishment if we lose at trial. I ask my client to tell me how he or she would vote if they were selected for the jury and heard the proof and the arguments that I have just presented. Then, without accepting any gut decision, I leave and give the client time to reflect on the decision, and encourage my client to discuss the choices with his or her family. If his or her family wants to meet to discuss it me, I will talk about it with them with my client’s prior permission.

This is the only way to give a client the understanding of what his or her chances are. First, we have to be able to look at the discovery in a meeting completely free of second-guessing, blaming, or accusations. Second, the client needs to be able to visualize how the pieces fit together. Third, the client needs time to think about the decision and talk it over with others who care about him or her. If the case progresses to trial, I will certainly have many more prep sessions.

Why don’t some attorneys do all of this? The short answer is that some simply do not have the time, the patience, or the knowledge. Often, they have not reviewed the discovery before visiting the client, so there has been zero preparation. Maybe they have too many cases or do not feel that they were adequate compensated to provide such a service.

What you will find, however, is that nothing pleases trial lawyers more than talking about trials – how it might go, how one piece of evidence changes the argument, how one argument will be parried by a subsequent piece of evidence. We like to imagine impeaching a witness with previous testimony, or by exposing the witness as having a character trait for untruthfulness, i.e., being a big fat liar. If you are considering a lawyer that does not enjoy engaging in such a discussion, then they have either lost their ‘fire in the gut’ for trials or perhaps never had it.

If you are serious about arming yourself with the tools necessary to make an informed decision such as this for yourself or a loved one, please pick up the phone and give me a call.

Volume is the Enemy of Quality

I have learned that I cannot compete with other criminal defense firms when it comes to handling sheer volume at the lowest possible price. I haven’t developed the following tricks of the volume trade, nor do I intend to do so.

The Bait and Switch Lawyer
Many firms hire several younger attorneys and send them off into various courtrooms with a list of clients to find. This person goes in and out of the courtroom, yelling your name to find you. He or she is not the attorney that you thought you were getting when you paid your fee. This person may work very hard for you despite the lack of experience, but he or she is not the one who was taking down notes to become familiar with your case. This person does not even know what you look like, so how in the world could they know the important details of your case? You might ask yourself, “Why did I tell all of that stuff to the other attorney to prepare, when they’re not even here?” Here’s a question for you: Did the attorney you thought you hired sleep in this morning, or are they in another courtroom with a ‘more important’ client?

The Hurry Up and Wait Lawyer
Some clients wait for their attorney to show up at 3 p.m. when court started at 9 a.m. The attorney knows that the client has been present since court opened, because that is a bond condition. When the judge finally runs out of things to handle on the docket, he or she will ask the bailiff to go outside to call the attorney and tell them to appear immediately. Here is my question: Did that attorney forget that you had court, or does that attorney just not care? Here’s another good question: Why is it that the bailiff can get your lawyer to show up, but you can’t? When the lawyer appears, the judge will often show their distaste with a snarky comment like, “Glad that you could make it.” One particular attorney is so brazen that he just chuckles and says, “Oh, I thought I was early!” He believes that he has charmed the court, but the client is not amused.

The Uncouth Bluetooth Lawyer
There is one local attorney who carries around a clip board each morning with a list of names that fills an entire sheet of paper. He will wear a Bluetooth headset into the courtroom unless the judge makes him remove it. This attorney has learned to multi-task to the point where he can both listen to you and another client on the telephone at the very same time. Because he handles twice the amount of work, you will probably be able to hire him for a very reasonable price as well. At the end of the representation, you will most certainly regret it, but it will be too late.

The Hot Potato Lawyer
One lawyer in town will take your case with very little money upfront. However, if you ever complain about the way that this lawyer is (not) handling your case, or if you ever show up without a continuing fee, this attorney will become enraged and blow up on you, saying something like, “If you aren’t happy with my representation, that’s fine, I’m off the case!” This attorney will not offer a refund and leaves you standing there wondering if you should apologize even if you aren’t in the wrong just so he will return again. This attorney also likes to convince you to waive your preliminary hearing, so that you didn’t even get anything for your money in General Sessions. Then, when you call him after you get indicted, he doesn’t want the case. He prevented you from getting anyone else, and then he did a terrible job.

No lowest-price guarantee
If you are looking for the lowest possible price, then I am probably not the lawyer for you. The only way that I can compete with the lowest bidders is by hiring lots of fresh law school graduates, showing up several hours late for court, handling too many other clients at the same time as you, and giving you an initial low price but dropping you when the case requires real work. Perhaps I could charge too little to secure your business, and then later try to justify to myself why it was okay for me to not do the heavy lifting because I didn’t feel I was paid enough. It seems hard to believe, but the four lawyers above are very busy and very popular because they are inexpensive. As long as they focus on sales figures rather than results or client satisfaction, they can view their law practices as extremely successful.

I am also not the most expensive attorney in town. I believe that we can arrive at a fair price that allows me to do a great job representing you and also avoid the volume practice that I do not want to have.

Think about what’s at risk in this case and reevaluate your priorities. This criminal case has been an awful experience from the first day, and it’s time for things to get better. There is always a reason that someone offers the lowest price, and although you don’t know exactly which attorney you’re getting from the above, you know in your heart that you get what you pay for.