Det var inte mitt fel, eller? En undersökning av det straffrättsliga ansvaret för tilltalade, med tidigare känd sexsomni, som utfört sexuella handlingar mot andra i sömnen

Sammanfattning: In the past few years Swedish courts have been faced with a new objection in cases concerning rape. The objection is that of sexsomnia which means that the defendant committed the sexual act in their sleep and therefore lacked criminal intent for their actions. When the prosecution in these cases have not been able to offer evidence to disprove the objection, the courts have had to present a non-guilty verdict. In multiple cases, a previous history of somnambulism or sexsomnia have been seen as a corroboration of the defendant’s objection, that the sexual acts, in the case being tried, were committed during an episode of sexsomnia. The purpose of this thesis has been to examine whether it would be possible to hold a defendant liable for sexual acts committed during an episode of sexsomnia, not just in spite of, but because of a previous knowledge that the defendant suffers from sexsomnia. The subject has been analyzed in relation to the crimes rape and negligent rape in this thesis. The results of the investigation points toward a potential possibility to hold a defendant liable for rape with the use of a, so-called, previous coverage with intent. However, it does not seem possible to convict a defendant of negligent rape with the use of previous coverage with negligence, as the negligence only adheres to whether the other person was a willing participant or not. A person who is sleeping, which is almost exclusively the case in sexsomnia cases, can never willingly participate in a sexual act according to Swedish law. Therefore, the sexual act itself still must have been committed with intent to hold a defendant liable for negligent rape. Had the law been changed so that it was possible to hold a person, who, through negligence, committed a sexual act towards a non-willing participant, liable, it would most likely be possible to convict a defendant with previously known sexsomnia of negligent rape.