There are many things you might expect the Crown Prosecution Service to get wrong — paperwork, timelines, the occasional spelling of ‘defendant’ — but dropping a sexsomnia defence rape case on the basis of a sleep disorder the victim had never heard of, then spending years realising they shouldn’t have? That’s a special kind of institutional fumbling that deserves its own commemorative plaque. Possibly in a courtroom. Possibly on a sofa.
This is the story of Jade McCrossen-Nethercott, a 24-year-old from St Ives in Cornwall, who woke up on a sofa in south London in the spring of 2017 to discover she was half-naked, her necklace broken on the floor, and her evening had taken a catastrophic and criminal turn while she slept. She reported it. Police investigated. Forensic evidence was collected. A man was charged. And then, three years later, just days before the trial, the CPS rang up and essentially said: “Sorry, we’re going to need to fold on this one.”
The Sleep Defence That Wasn’t
The reason? Sexsomnia — a genuinely real, medically recognised parasomnia in which people perform sexual acts while asleep. Think sleepwalking, but considerably more legally complicated. Two sleep experts had apparently reviewed the case and concluded that Jade might have appeared awake and consenting during what could, theoretically, have been one of these episodes. The CPS, faced with this opinion, decided the case was unwinnable and pulled the plug entirely.
Now, to be fair to the CPS — and one does try, through gritted teeth — English and Welsh law does state that a person is not guilty of rape if they held a “reasonable belief” in consent. It’s a legitimate legal consideration. However, and this is a rather large however, Jade had also mentioned in passing during her original police statement that she had been a deep sleeper as a child and had sleepwalked a couple of times as a teenager. That’s it. That was the thread the entire sexsomnia theory was hanging from. Two sleepwalks. As a teenager. In Cornwall.
Meanwhile, Jade Decided to Do Their Job For Them
Rather than accept the decision quietly, Jade did what any reasonable person would do when the justice system falls asleep at the wheel: she got extremely, methodically furious. She challenged the CPS decision, spent months reinvestigating the case herself, and pushed back against the expert opinions that had derailed everything. Furthermore, she had wisely recorded the meeting in which she was told the case was being dropped — a meeting that, upon review, became something of an exhibit in institutional embarrassment.
The Crown Prosecution Service, to their credit, eventually admitted they had got it wrong. They acknowledged they should have taken the case to trial. They apologised. Unreservedly, they said, which is the legal equivalent of a very long, very sincere wince. It was a significant moment, not just for Jade, but for anyone who has ever looked at Britain’s criminal justice system and thought: “Surely someone’s in charge of this?”
The Sexsomnia Defence and What It Means
The sexsomnia defence, it should be noted, is not a complete legal fantasy. Documented cases do exist where defendants have successfully used it in court — including notable UK trials going back to the mid-2000s. The Sleep Foundation confirms it as a recognised condition within the broader family of parasomnias. So it’s not absurd that lawyers consider it. What is absurd is deploying it based on the flimsiest of evidence, without taking it before a jury who could weigh it properly.
Jade’s story is ultimately one of remarkable persistence in the face of a system that, faced with complexity, chose to sit down and have a nap of its own. The sexsomnia defence rape case that nearly wasn’t tried stands as a reminder that the CPS is made of human beings — fallible, occasionally baffling human beings — and that challenging their decisions, while exhausting and bruising, is sometimes the only way to make things right. Jade did the hard work. The least the rest of us can do is pay attention.
Read the original story at BBC News – Magazine (Odd).
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