A British woman has told how her rape case was dropped days before trial after experts claimed she had a rare sleep disorder called sexsomnia.
Jade McCrossen-Nethercott, 30, shared her remarkable story in the BBC documentary Sexsomnia: Case Closed?, available to stream on Flash.
In 2017, the then 24-year-old woke up half naked with her necklace broken after falling asleep at a friend’s house following a night out. She had a feeling she had been violated.
On the opposite side of the other side of the sofa, Jade found the man who allegedly raped her.
“I confronted him saying, ‘What’s happened? What have you done?,’” she told the program.
“And he said something a bit odd I guess, but he did say ‘I thought you were awake.’
“And he just bolted out basically and left the door open.”
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Jade reported the incident to the police and an investigation began. A medical examination confirmed sex had taken place and the 28-year-old man was charged with rape.
Three years later – and days before the trial was about to begin, the case fell apart.
During her police interview, Jade stated that she was a deep sleeper and had sleepwalked as a teenager.
Based on her comment, two experts – who had never met her – suggested that Jade had sexsomnia and could have appeared to have been awake and consenting.
“It’s something that I’ve never come across before in my life,” Jade said, who had never heard of the condition until then.
“I have no kind of previous history of any of my bed partners ever raising any concerns about this in the past.”
As a result, the Crown Prosecution Service (CPS) – the principal public agency for conducting criminal prosecutions in England and Wales – threw the case out and Jade’s accuser walked free.
Determined to disprove the CPS’s decision, Jade went on a mission to challenge the claims and appeal.
She requested all the evidence – including police interviews, toxicology results, witness statements and the sleep experts’ reports.
Jade went to a sleep clinic and was assessed by a neuropsychiatrist Dr Irshaad Ebrahim who said he was “surprised” at the decision to label her a sexsomniac.
A sleep test indicated that Jade snores and has mild sleep apnea, a common condition where breathing stops and starts during sleep.
According to Dr Ebrahim, both were potential trigger factors for sexsomnia, so he could not rule out that she may have had an isolated episode.
A chief crown prosecutor reviewed all the evidence again and concluded the case should have gone to trial.
He said that the sleep experts’ opinions, and the defendant’s account, should have been challenged in court.
A jury would have been “more likely” than not to convict the defendant and the case should have gone to trial.
Despite this, Jade’s case cannot be reopened under double jeopardy laws, as the suspect was formally acquitted.
“How can I be let down? How can a rapist walk free based on the CPS’ mishandling and misjudgement of this case?,” she said.
“I just can’t believe that they’ve acknowledged it.”
The CPS declined an interview with BBC but did issue a statement.
“We have apologised unreservedly to the victim in this case,” a CPS spokesman said.
“The expert evidence and defendant’s account should have been challenged and put before a jury to decide.
“We are committed to improving every aspect of how life-changing crimes like rape are dealt with and are working closely with the police to transform how they are handled.”
Jade is now suing the CPS and seeking damages.
– with The Sun