A university student who victimised four women in separate incidents over the course of two years has admitted he’s guilty of rape and inappropriate touching but only with the unusual provision that he was not entirely conscious during two of the incidents, suffering a condition called “sexsomnia”.

Taine Wanoa, now 25, was between the ages of 19 and 21 when the predatory behaviour occurred following nights of heavy drinking in Auckland, Wellington and Whakatāne.

He pleaded guilty this month to one count of rape, punishable by up to 20 years’ imprisonment, and four counts of indecent assault, which carries a maximum possible sentence of seven years’ imprisonment. Details of the cases, however, could not be reported until now for legal reasons.

Sexsomnia is a recognised sleep disorder akin to sleepwalking that has been used as the basis of a legal defence multiple times in New Zealand and abroad, to varying degrees of success. However, this case appears to be one of the first times in New Zealand that the condition has been used as a compromise of sorts between prosecutors and the defence, resulting in a guilty plea but also potentially reducing the defendant’s culpability at sentencing.

 “Mr Wanoa has a reported history of parasomnic sexual activity (sexsomnia) ... ”, the agreed summary of facts for the case state. “He can be more susceptible to these behaviours if he is sleep deprived and/or is intoxicated under the influence of alcohol or other drugs.”

In two of the cases he pleaded guilty to this month, Wanoa was described as having been “in a semi-conscious sleep state” and acting on the “mistaken understanding” he was touching his then-girlfriend, who was also in the bed.

“Notwithstanding his semi-conscious state, he accepts that he did not make reasonable inquiries about initiating the sexual contact,” the court document states.

Taine Wanoa has pleaded guilty to one count of rape and four counts of indecent assault, but he said he was suffering from "sexsomnia" and thought two of the victims who were in the same bed as him were his girlfriend. Photo / Supplied

His offending occurred from 2017 to 2020 and involved members of various groups of friends.

 “It was ordinary for members of the group to share beds on occasion when they would return home from parties or after they had consumed alcohol,” court documents state. “However, this was a platonic arrangement where there was no expectation of sexual conduct occurring.”

Four victims, five charges

The first claimed sexsomnia incident occurred in June 2020, at a Sandringham home following a night of drinking in Auckland’s Viaduct.

The group returned to the house about 1am, at which point Wanoa’s then-partner invited a female friend to stay in the room with her and told Wanoa to sleep in another room. The woman went to bed clothed while Wanoa stayed up to continue drinking with others.

“Between 7.30am and 8am Mr Wanoa and another occupant of the address came into the room and lay down on the bed,” court documents state. “After talking for a short time, the other occupant left the room.

“Mr Wanoa remained in the bed between [the victim] and his then partner. [The victim] closed her eyes, faced away from Mr Wanoa and tried to fall back asleep. Within approximately two minutes of closing her eyes, [the victim] felt Mr Wanoa’s hand on her right hip.”

She then had to push his hand out of her pants, she would later tell authorities. She got out of bed and left the house.

“Following this incident, Mr Wanoa had a conversation with her where he explained that on occasion he has tried to have sex with his then partner while they were both asleep and that it becomes worse when he is asleep or drunk,” documents state.

The next incident, involving a different victim, happened in Wellington five months later, following a birthday party in the CBD that also involved drinking.

“When they returned to the address [where they were staying], [the second victim] discovered the room she was supposed to be sleeping in was already occupied,” documents state. “The group went to a bedroom with a double or queen-sized bed, and all of them got into the bed and went to sleep.”

The victim was fully clothed while in bed, with Wanoa lying between her and his then-girlfriend. While she was asleep, the defendant pushed aside her clothes and began raping her. The victim awoke in the middle of the sex act and immediately left the bed.

“As soon as [she] disturbed Mr Wanoa, he became fully awake and began to realise the situation and the extent of his actions,” the agreed summary of facts state. “[The victim] went to the lounge area to sleep.

“When she woke and realised what had happened she became hysterical and showered before leaving the address so she could catch a flight to return home. Mr Wanoa messaged [her] shortly after she left the address, apologising and asking if she was okay.”

But there were two earlier occasions - both occurring in Whakatāne in February 2019, but on different nights and involving different victims - that he pleaded guilty to, not mentioning sexsomnia as a defence.

On the first occasion, he, his then-girlfriend and two other female friends got into bed together fully clothed after a night of drinking. Around 1.30am, he began groping one of the women. She pushed him away and left the bedroom with the other woman who wasn’t his girlfriend.

Around 3am that same morning, Wanoa entered the other bedroom the two women had retreated to after the earlier incident. Wearing only his underwear, he told the woman who hadn’t been groped that someone else in the house was looking for her and he urged her to leave the room. When she did leave, he jumped into the new bed with the earlier victim and repeatedly tried to kiss her, saying, “Come on, no one will know, don’t worry about it, don’t worry about them.”

The victim said no and resisted before exiting the second bedroom, leaving Wanoa to return to the bedroom where his girlfriend was sleeping.

The second incident, less than two weeks later, involved a birthday gathering that again involved drinking. That victim had gone to bed around 10.30pm, moderately intoxicated and fully clothed, while most party attendees were preparing to leave. Two female friends were with her.

Wanoa climbed in her window about 30 minutes later, and when the two female friends left the woman’s room he began groping her.

“[The victim] told Mr Wanoa to stop and unsuccessfully tried to shove him away,” documents state. “Mr Wanoa continued to grope [her] breasts. [She] eventually fell asleep. Mr Wanoa did too.

“When she woke [the victim] got up and told her sister what had happened and asked her to get Mr Wanoa to leave. He did shortly after. The following day Mr Wanoa sent a message to [the victim] using the social media platform Snapchat. The message consisted of an apology along the lines of, ‘Sorry about last night’.”

He was initially charged with more than 20 counts of sexual misconduct regarding the earlier incidents, including allegations of rape. The charges were significantly pared down by prosecutors last year.

His guilty pleas this month came days before he was set to go to trial on the remaining charges.

Sexsomnia in NZ

The term “sexsomnia” was coined in 2003 and has since been recognised in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5)10 and the International Classification of Sleep Disorders.

Although still quite rare, criminal cases in New Zealand involving claims of sexsomnia date back more than a decade. But until now, the defence strategy has been more of an all-or-nothing gambit — either the condition was accepted by the judge or jury, resulting in acquittal, or it was rejected and the defendant went on to be convicted.

University of Auckland law professor Carrie Leonetti, who lectures forensic psychiatry, noted that sexsomnia is quite a rare form of “automatism” - the legal term for unconscious actions - compared to other parasomnias such as sleepwalking, night terrors and restless leg syndrome.

Carrie Leonetti is an Associate Professor at the University of Auckland Law School. Photo / Supplied

“But it is more likely to land a sufferer in the criminal justice system for obvious reasons,” the Harvard Law School graduate told the Herald.

While someone found to be acting under automatism can’t be found guilty of criminal conduct, there are significant hurdles a defendant might face in pursuing such a defence at trial, Leonetti said.

“The complete failure to address an alleged condition might make a jury more sceptical about whether the condition is real,” she explained. “I mean, if you knew you had sexsomnia, why would you keep crawling drunk into bed with your female friends?

“A defendant who had a longstanding history of parasomnias probably has a better automatism defence than someone claiming to have sleep-sexed for the first time because a jury is more likely to believe their defence.”

The Court of Appeal discussed such diagnoses in general terms last month as part of a judgment rejecting the appeal from a man who was found guilty by a jury in 2019 of inappropriately touching his primary school-aged daughter.

The three-judge panel said there is some evidence the condition may be more common than initially assumed, but they also noted debate surrounding the “statistical quality” of studies reporting it. They referred to statements from New Zealand-based forensic psychiatrist Dr Peter Dean, who served as an expert witness for the Crown in the recent appeal.

“Dr Dean did not dispute that sexsomnia is now a recognised condition or disagree with the diagnostic criteria,” the judgment stated. “However, he was plainly sceptical about sexsomnia as a likely explanation for alleged offending and wary of diagnoses ultimately resting on self-report.

“He cited a 2010 book stating that the discipline of forensic sleep medicine is at an embryonic stage and noting methodological and ethical difficulties in obtaining valid data.”

It is “remarkably common” for people accused of offences to claim they don’t remember them, Dean said in a report to the court. But that rarely results in a successful sexsomnia defence, he added.

“He explained that he has prepared more than 100 medico-legal reports per year since 2000 and in only two of the cases he has been involved in has the defendant successfully pleaded automatism,” the judgment states.

The justices also cited an article in the Journal of the American Academy of Psychiatry and the Law, an academic publication, that outlined possible indications someone may be faking sexsomnia. They include efforts to conceal behaviour, repeated episodes of sexual abuse after becoming aware of the sleep-related sexual behaviour and recollection of the episode.

It suggests interviewing previous partners when possible to see if there is a pattern of behaviour prior to an alleged illegal act.

In addition to the case decided by the Court of Appeal last month, there have been at least two other sexsomnia-related appeals decided this year.

In April, a man received permanent name suppression in the Nelson District Court after his conviction was overturned. He was initially convicted at trial of a 2016 incident in which he was accused of indecently assaulting a woman he didn’t know too well at a party.

In May, Rotorua resident Tony Paraire Cameron wasn’t so fortunate. His appeal was rejected five months after he was sentenced to seven years and eight months’ imprisonment for raping a 15-year-old girl at a party.

‘Excuse’ defence

Like insanity, automatism is what is known as an “excuse” defence - meaning that, when proven, a defendant is excused from what would otherwise be deemed criminal conduct, explained Professor Leonetti.

There are two types of legal categorisations for automatism: sane and insane. While the line between the two can at times be murky, cases involving claims of sexsomnia often fall under the category of insane automatism.

“Some cases suggest, for example, that an isolated episode of sleepwalking is sane automatism but a sleepwalking disorder is insane automatism,” Leonetti said. “That seems like a pretty fine distinction.”

But the distinction is important because someone found not guilty due to insane automatism could then potentially face involuntary psychiatric hospitalisation until the condition is cured, she said. A preference for a finite sentence rather than indefinite hospitalisation might be one motivation for someone to plead guilty in a sexsomnia case, she said.

Another possibility might be that the person cannot find a psychiatrist willing to support his claim because it does not meet the diagnostic criteria, she said.

In Wanoa’s case, she noted that the wording in the agreed summary of facts was carefully worded, acknowledging a “history of parasomnic sexual activity” but not explicitly acknowledging a psychological diagnosis.

“For what it’s worth, I think that these facts read like a guy who becomes inappropriate when he has too much to drink, not like true sexsomnia,” she opined.

“And I worry that if every sexually inappropriate man who indecently assaults someone can blame it on a history of sexsomnia, then the people who really have these conditions will not be believed on the rare occasion that the disorder is legitimate.”

Crown prosecutor Sam Teppett and Wanoa’s lawyer, Katie Hogan, will have an opportunity to address sexsomnia and other aspects of the case when the defendant returns to court in November for sentencing before Judge Maria Pecotic.

Craig Kapitan is an Auckland-based journalist covering courts and justice. He joined the Herald in 2021 and has reported on courts since 2002 in three newsrooms in the US and New Zealand.

SEXUAL HARM

Where to get help:
If it’s an emergency and you feel that you or someone else is at risk, call 111.
If you’ve ever experienced sexual assault or abuse and need to talk to someone, contact Safe to Talk confidentially, any time 24/7:
• Call 0800 044 334
• Text 4334
• Email [email protected]
• For more info or to web chat visit safetotalk.nz
Alternatively contact your local police station - click here for a list.
If you have been sexually assaulted, remember it’s not your fault.