Bering in Mind: Sex, Sleep and the Law: When Nocturnal Genitals Pose a Moral Dilemma

It may seem to you that, much like their barnyard animal namesake, men’s reproductive organs the world over participate in a mindless synchrony of stiffened salutes to the rising sun. In fact, however, such "morning wood" is an autonomic leftover from a series of nocturnal penile tumescence (NPT) episodes that occur like clockwork during the night for all healthy human males—most frequently in the dream-filled rapid eye movement (REM) periods of sleep from which we’re so often rudely awakened in the A.M. by buzzers, mothers, or others.
For those with penises, you may be surprised to learn how frequently your member stands up while the rest of your body is rendered catatonic by the muscular paralysis that keeps you from acting out your dreams. (And thank goodness for that. Carlos Schenck and his colleagues [pdf] from the University of Minnesota Regional Sleep Disorders Center describe the case of a 19-year-old with sleep-related dissociative disorder crawling around his house on all fours, growling, and chewing on a piece of bacon—he was ‘dreaming’ of being a jungle cat and pouncing on a slab of raw meat held by a female zookeeper.) Scientists have determined that the average 13- to 79-year-old penis is erect for about 90 minutes each night, or 20 percent of overall sleep time. With your brain cycling between the four sleep stages, your "sleep-related erections" appear at 85-minute intervals lasting, on average, 25 minutes. (It’s true; they used a stopwatch.) I didn’t come upon any evolutionary theories or a proposed "adaptive function" of NPT, but we do know that it’s not related to daytime sexual activity, it declines (no pun intended) with age, and it’s correlated positively with testosterone levels. Females similarly exhibit vaginal lubrication during their REM-sleep, presumably with many dreaming of erect penises.
Now, you may not think that such tedious biological details would be fodder for a moral quandary, but you underestimate our species’ massive confusion when it comes to understanding how its coveted free will articulates with its genitalia. Consider the case of a young Frenchman whose sleep-related erection was interpreted by another man as a sign of sexual interest but, swore the former, was nothing of the kind. As described by a group of investigators at the Annual Meeting of the French Sleep Research Society in 2001, the 24-year-old heterosexual male awoke to his horror with painful anal lesions. Although he had no conscious recollection of any such incident occurring, this led him to deduce that he must have been raped during the night. "The legal medical examination indeed reported on visibly recent tears of the anal margin," confirmed the researchers.
Then comes the sobering whodunit. What was especially disquieting is that the man’s boss had slept over the night before. The two had earlier been lounging in the pool and roasting together in the sauna. There was absolutely no evidence of date rape drugs, but alcohol, as it so often does in the south of France, flowed with relatively gay abandon that evening, and so the straight employee, being a gentleman, had invited his employer to sleep it off on his sofa while he retired to the mezzanine. Apparently, however, it was the employee that slept particularly hard that night, not the inebriated boss. The older man admitted readily that of course they’d had sex overnight, and he could only assume that his colleague’s erection, combined with the fact that the other didn’t resist as he mounted him, suggested that he was a consensual partner. (You thought you were a deep sleeper—imagine the somnambulistic fortitude required to snooze through your first anal penetration.) While the courts tried to sort it all out, the alleged rapist was imprisoned for two years, until finally a judge decided that both men were more or less right and the accused should be set free.
This is but one of many curious examples of sex and law intertwining. In recent years, the related phenomenon of sexsomnia ("sleep sex") has witnessed periodic public interest through a spate of high-profile cases, stories that have in turn motivated intriguing academic research on this little-known subject. Even Alfred Kinsey, the grand archivist of carnal facts, while spending a considerable deal of time on the subject of "wet dreams" and nocturnal orgasms in both sexes, didn’t mention how some people act out sexually during their sleep.
Unlike the aforementioned case of the sleeping employee being the passive, immobilized recipient in unwanted intercourse, it’s the sleeper that instigates the trouble in bouts of sexsomnia. Although researchers don’t yet have an exact figure on the frequency of this parasomnia, most specialists believe that it’s probably fairly common. Nearly all people who exhibit recurrent sexual acts while sleeping have a history of sleepwalking. In fact, many experts believe that sexsomnia is simply a variant of sleepwalking, which affects 1 to 2% of adults, and this is how it’s presently classified in the main diagnostic manual, the International Classification of Sleep Disorders, Revised. Most people do not seek out clinical treatment due to either their ignorance of the condition or embarrassment, and oftentimes their sexual ‘automatisms’ are innocuous enough—such as fugue-state masturbation, weak pelvic thrusts or steamy pillow talk. (More on the concept of automatism in a moment.)
In a 2007 issue of Brain Research Reviews, however, psychobiologist Monica Andersen and her co-authors [pdf] investigated all case studies that had, at that point, been published in the literature, and they attempted to piece together some common denominators underlying sexsomnia. They found that the most common precipitating factors of sleepsex are sleep deprivation, stress, alcohol or drug consumption, excessive fatigue, and physical overactivity in the evening. Being male and under the age of 35 is also a major factor; furthermore, when women do lapse into this altered nocturnal state, their actions tend to be comparatively innocent, moaning and masturbating rather than, like male sexsomniacs, fondling and grinding whatever is unfortunate enough to be in the vicinity of their bed that night.
One of the most extraordinary things about sexsomnia is that the sleeping person’s inappropriate behaviors are sometimes directed at people that, during their waking lives, are not particularly arousing to them. In a 1996 issue of Medicine, Science and the Law, psychiatrist Peter Fenwick describes the case of an allegedly heterosexual male cadet who was court-martialed for homosexual assault after he’d crawled into bed with another soldier and caressed that private’s privates. The case was dismissed after the court accepted that the absence of an erection in the accused—sexsomnia may or may not involve erections—meant that it was unlikely that the episode was "purposeful," but instead just a bizarre sleepwalking incident. (I’ll refrain, but there’s a clever Don’t-Ask-Don’t-Tell joke just waiting for you.) Another example of atypical homosexuality in sexsomnia involved a 16-year-old who walked into his aunt and uncle’s bedroom one night and began molesting his adult uncle.
Erections, as I hinted at earlier, complicate matters for the judicial system. One notorious case garnering international media attention, and as reviewed recently [pdf] in Current Psychiatry by a group of sleep researchers from The Cleveland Clinic, centered on a 30-year-old landscaper named Jan Luedecke, who drank far too much at a wild croquet party in the Toronto suburbs one night back in 2003 and fell asleep on a couch. "Some time later," explain the authors, "he approached a woman who was sleeping on an adjacent couch, put on a condom, and began sexual intercourse with her." From her terrified perspective, the woman awoke to discover that her underwear had been removed and a glassy-eyed Luedecke was trying to rape her. She pushed him off, ran to the washroom, and returned to find him standing there bewildered. Luedeke, who had an established history of sleepwalking behaviors, was acquitted after University of Toronto psychiatrist Colin Shapiro testified for the defense that the accused was in a dissociative state when the incident occurred and therefore he was not consciously aware of his actions.
Difficult legal cases such as these hinge entirely on the demonstrability (or at least strong probability) of an automatism—a crime committed during sleep. This is a concept for which Fenwick provided one of the clearest definitions:

An automatism is an involuntary piece of behavior over which an individual has no control. The behavior is usually inappropriate to the circumstances, and may be out of character for the individual. It can be complex, co-ordinated and apparently purposeful and directed, though lacking in judgment. Afterwards the individual may have no recollection or only a partial and confused memory for his actions.

In other words, sexsomniacs are basically lascivious zombies. There’s presently no way to determine with absolute certainty if the phenomenon, when invoked as a defense, was really the cause or just a really convenient alibi. Still, certain criteria (detailed sleep pattern data from a nocturnal polysomnography, or PSG; sleepwalking and sleep-related sex in the past; known trigger factors, such as intoxication, fatigue, and stress; timeline of the alleged assault, since episodes typically occur within two hours of sleep onset during non-REM sleep; amnesia for the event; no attempt to conceal or "cover up" the incident, but instead confusion) can at least aid a jury in its decision-making. It’s tempting, to say the least, to be skeptical that a sleepwalker could act so purposefully as to fiddle successfully with a condom wrapper yet be conscious as an orthopteron, but London sleep researcher Irshaad Ebrahim reminds us that sleepwalking behaviors are highly variable and can be very detail-oriented, citing people preparing meals and eating, driving motorbikes and cars, even riding horses, all while getting a good night’s sleep.
For those for whom sexsomnia has become a serious problem, in a legalistic sense or otherwise, the good news is that it responds well to pharmaceutical intervention. Just a small dose of benzodiazepines—most notably clonazepam—before bedtime seems to do the trick for most. You might want to consider this if you’ve shown a history of sexual violence during sleep or, say, you’re a frequent sleepwalker and there are children in the home. (Several cases have, in fact, involved very unsettling child abuse charges being filed against alleged sexsomniacs.) But sexsomnia can be a problem even for those who live and sleep alone. After five years of waking up several nights a week with ejaculate mysteriously between his fingers, one 27-year-old was distressed to realize that he was a somnambulistic masturbator. The poor man broke two fingers when his nocturnal alter ego tore off the restraints he’d used to avoid moving in bed.
There are also those, I should point out, whose sex lives have actually benefited courtesy of their sexsomnia. Schenck and his coauthors review several such cases, including a woman who "reported infrequent and hurried sex with her [awake] husband, whom she described as distant and reluctant during wakefulness." This lady found that "nocturnal sex was more satisfactory, even if associated with bruises at times."
So, in closing, how do you determine if your partner’s overnight prurient poking is thoughtless or thoughtful? This is the very question that prompted me, several nights ago, to write this article. Apparently, snoring during sex is a good sign, and something that the partners of many sexsomniacs mention as occurring, quite out of the blue, during even the most complicated sex acts. It occurred to me also that zombified nocturnal penile tumescence (NPT) episodes may be distinguished from actual conscious sexual arousal by the presence or absence of, oh what to call it, "penile flicking." (That’s not a technical term, but since I dredged the depths of the literature in vain trying to find the proper term for this voluntary lateral, up-and-down movement of the erect penis through the clenching of the cremaster muscle—oh c’mon, don’t pretend you don’t know what I’m talking about—please permit me a little poetic license.) I always thought such penile flicking responses must serve some communicative signalling function in our species, but apparently nobody has thought to study it from an adaptive perspective. Imagine that.
Anyway, could a sexsomniac use his social cognition to deliberately communicate a message of sexual interest by flicking his penis at his partner? It’s probably not a failsafe NPT detector, but I suspect not. And bear that helpful hint in mind in the days to follow, since God only knows the coming apocalypse will deliver it’s share of sex-crazed male zombies—a lot of randy gay ones too, according to Family Radio.
Image: Paul Delvaux: The 'Sleepwalker of Saint-Idesbald' (1897-1994) (from)
About The Author: Want more Bering in Mind? Follow Jesse on Twitter @JesseBering, visit www.jessebering.com, or friend Jesse on Facebook. Jesse is the author of newly released book,  The Belief Instinct: The Psychology of Souls, Destiny and the Meaning of Life (W. W. Norton).

via scientificamerican.com