By Sarah McPhee
A Sydney burlesque business owner claims he was asleep and suffering from an episode of “sexsomnia” when he is alleged to have raped a woman, who has told a jury she was left “scared” and “disgusted” by the incident.
Timothy Malcolm Rowland, 40, is on trial in Downing Centre District Court after pleading not guilty to sexual intercourse without consent in Darlinghurst in August 2022.
Timothy Malcolm Rowland arrives at the Downing Centre District Court for his trial.Credit: Kate Geraghty
Rowland is the part-owner of The Bamboozle Room, a burlesque and cabaret show business housed within the Potts Point Hotel, the court heard.
Prosecutors allege Rowland was “awake and aware of what was happening”, while Rowland’s lawyers argue he was suffering from an “episode of sexsomnia”, otherwise known as “sleep sex”.
Giving evidence on Tuesday, the woman said she had attended a burlesque show with Rowland. She had wanted to stay a bit longer, but Rowland wanted to go home, so they got an Uber to his Darlinghurst unit where they kept drinking, he played guitar and they sang.
The complainant said the pair had a bath, but nothing sexual happened, and she wrapped herself in a towel and stood by the bed.
“I don’t remember getting into bed,” she said. “When I woke up, I felt like I was waking up from having a sex dream. I guess it must’ve took [sic] me about five seconds or so to realise that I wasn’t actually dreaming, and Tim was having sex with me.”
The woman said she “shot up” as fast as she could out of bed, pushed Rowland away and wanted to get dressed and leave.
“He was making, like, sleeping, grunting noises that seemed like fake noises to me,” she said. “As far as I was concerned, Tim looked like he was awake.”
The woman said she was a “bit worried” and started recording a video on her phone.
In the short video, played to the jury on Tuesday, Rowland can be heard asking “Was that consensual? Was it OK? Look at me” and saying “What happened? We need to talk”.
The woman said, “I just want to go home”, before Rowland responded, “Are you serious? Are you f---ing serious right now?”
She told the jury she felt “completely confused, disgusted, a bit scared [and] just really anxious to leave”.
Crown prosecutor Geoff Harrison asked: “At any stage, did you consent to the sexual intercourse?”
“No, I was asleep, I had just woke up,” the woman replied.
She said she left the unit and immediately called a friend. She then got an Uber home and Googled “What do you do when you think someone has had sex with you who’s not supposed to?”
The complainant wiped tears from her eyes with a tissue as she told the court she contacted a sexual assault helpline and was advised to go to a local hospital.
The woman attended two hospitals that day but declined the morning-after pill and forensic testing, according to facts agreed in the case. At a medical centre the next day, she also reported the alleged sexual assault. The court heard she went to police in October 2022.
The Crown alleges Rowland either knew the woman was not consenting or was reckless as to her consent.
The prosecutor said the 12-person jury would consider whether Rowland’s actions were voluntary or involuntary.
Defence barrister Elana Scoufis said her client “has a diagnosis called sexsomnia”, which she said was a non-rapid eye movement (REM) parasomnia like sleep walking, sleep talking and sleep terrors, and “had an episode” that morning.
“For many people, sleep is a peaceful escape, but for some people, sleep is more of a dangerous and unpredictable experience,” Scoufis told the jury. “They unconsciously do things, things that they’re not aware of doing, until after they’ve woken up. In a sense that’s exactly what Mr Rowland’s trial is about.”
She said two experts had spoken with Rowland and reviewed his medical records and “formed the opinion that he does meet the diagnosis for sexsomnia”.
“Unfortunately for Mr Rowland, he has a long history of sleep sex, as he sometimes refers to it,” Scoufis said.
She said the complainant was aware of Rowland’s “sleep sex problem” and “he had, in essence, warned her against sleeping next to him because he does weird sex things in his sleep”.
Scoufis anticipated a psychiatrist and sleep specialist would explain non-REM parasomnia as “disorders of arousal” leading to “abnormal behaviours without full consciousness or memory of the event”.
She said Rowland’s comments in the phone recording, during which he asked “Was that consensual? Was it OK?” went to the issue of confusion and awareness.
The trial before Judge John Pickering is estimated to run for seven days.
Start the day with a summary of the day’s most important and interesting stories, analysis and insights. Sign up for our Morning Edition newsletter.