Den som sover syndar inte? : Om straffansvar och somnambulism

Sammanfattning: In recent years, a new objection has been raised more often in criminal matters, namely the objection of the accused that the act has been committed in a somnambulate state, when he or she was sleepwalking. The so-called sleepdefence entails a number of interesting issues in criminal law, but also in the merging of law and neurology. Sleep and consciousness are neurological concepts that consist of grayscales; sleep has four stages of Non Rapid Eye Movementsleep (NREM), followed by Rapid Eye Movement-sleep (REM), and a person's consciousness is established in neurology using an eight-step method. Nevertheless, the law seems to have a black and white idea of sleep and consciousness as a being, or non-being, and a person’s consciousness is assumed without further examination when examining criminal liability. In order for a person to be held criminally responsible, both the objective and subjective crime prerequisites must be met. In accordance with the objective prerequisites, the person must have, 1) performed an act that meets the prerequisites of a criminal offense, and 2) that was not justifiable. In accordance with the subjective prerequisite, the accused must be attributed personal responsibility for the act. People considered to have acted in a somnambulate state are free of liability. But on what grounds are they free of liability? Previously, movements undertaken while sleeping were not considered acts at all, since they lacked underlying will, thus generating a deficiency in the objective prerequisites. However, in the studied case material and doctrine, it seems that movements while sleepwalking are treated as a lack of criminal intent, thus excluding responsibility within the context of subjective prerequisites. Probably this confusion arises as a result of the strong presumption that body movements are the same as actions, and partly that the mental states "conscious" and "aware" are considered the same. The author argues that sleepwalking is a state in which the person lacks consciousness, and movements undertaken in this state should not be considered acts. This type of indictment also involves some procedural considerations, in which the accused must make the episode of somnambulism likely, and the prosecutor has to disprove it. Evidence in these cases often includes expert reports from different sleep researchers. A few sleep researchers are prominent and have established a practice on how to investigate the probability of somnambulism. The risk of this practice, however, is that it consists of a checklist that does not always provide room for different experiences of somnambulism. It is likely that the trial, which by its nature must remain a grayscale, will be characterized by the black and white approach of the law.