Rapist’s ‘sexsomnia’ claims dismissed in court appeal

A man was unable to convince a court he should be found not guilty of rape due to an undiagnosed sleeping condition.

A rapist in New Zealand tried to convince a court he was suffering from undiagnosed “sexsomnia” when he sexually violated a woman.

Damin Peter Cook was jailed for eight years after a jury found him guilty of raping a woman who woke to him having sex with her in September 2019.

Cook’s 2022 trial heard that on the night of the incident, the woman was “intoxicated after an extended drinking game” and passed out in a corridor outside his bedroom.

Cook, then 41, and a flatmate put her in his bed before returning to the party and she later woke to “find Mr Cook sexually violating her” about 7am.

Damin Peter Cook argued the incident stemmed from sexsomnia. Picture: Supplied

“In her evidence she said that she ‘froze’ and was in a state of shock,” a New Zealand Supreme Court judgment states.

Cook at first denied having sex with the woman but then claimed, after DNA results showed otherwise, it happened due to his underlying “sexsomnia”.

His mother gave evidence that Cook’s father also experienced the same condition and his son testified that Cook once headbutted him while sleeping.

Three former partners also told the Christchurch District Court that they had either woken to find Cook having sex with him “while apparently asleep” or that he regularly initiated sexual contact while asleep.

Cook this year appealed to the country’s Supreme Court, which was asked to rule whether sexsomnia was a “disease of the mind” or a form of unconscious automatism.

Sexsomnia has been described as a form of parasomnia, like sleepwalking, characterised by displays of sexual behaviour.

Cook’s former partners gave evidence at trial. Picture: Supplied

On appeal the court was told by Cook’s defence that if sexsomnia was “sane” automatism, the Crown would have had to exclude the possibility that Cook acted entirely without volition.

As it was deemed insanity, the court heard, the burden of proof fell on Cook and his lawyers to prove the defence of mental illness. The jury rejected this defence at trial.

On Monday the Supreme Court dismissed Cook’s appeal and found the trial judge was bound to rely on previous case law that judged sexsomnia was a form of insanity.

“Here, Mr Cook’s sexsomnia, if accepted by the jury, involved persistent and longstanding sexual acts during sleep, including full sexual intercourse,” prosecutors put to the court on appeal, according to this week’s judgment.

Damin Cook is serving seven years in prison. Picture: Supplied

“All three partners had spoken of Mr Cook’s unwillingness to accept these events had occurred, when confronted after the event — an unwillingness to confront the condition.

“That spoke to the risk of ongoing social harm for misconduct, which disturbed former partners and culminated in sexual violation of a relative stranger.”

The court found when “automatism proceeds from a disease of the mind … the defence must be classified as one of insanity”.

Sexsomnia has been used as a defence in multiple court cases in Australia, including for a father who was in 2021 found not guilty of raping his young daughter.

Last year a Sydney youth minister was found not guilty of sexual offences alleged against three young boys after an expert testified there was “no doubt” he suffered from sexsomnia.

In January this year, a 40-year-old man was acquitted by a Sydney jury of rape after it heard he was diagnosed with sexsomnia.

Cook appealed against his sentence in separate proceedings last year, and is now serving a seven-year term.

Originally published as Rapist’s ‘sexsomnia’ claims dismissed in court appeal