Sleepwalker is cleared of raping teenage girl

A MAN who admitted having non-consensual sex with a teenage girl has walked free from court after arguing he was sleepwalking at the time.

Campaigners last night warned that the not proven verdict handed down to James Thomas could open the floodgates for similar defences in future.

Support group Rape Crisis Scotland said the case would set a dangerous precedent and drive down Scotland's already low rape conviction rate.

Speaking outside the court, the teenager's furious mother described the verdict as "ridiculous", saying it would give people a licence to commit crime.

Thomas had suffered episodes of "parasomnia" since childhood, the High Court in Edinburgh heard. He said he had not been awake and in control of his actions when he had intercourse with the girl after drinking at the party. She maintained Thomas had known what he was doing, but a jury returned a majority not proven verdict on the charge of rape.

Thomas left the court without commenting, but the teenager's mother, 49, was outraged.

She said: "The outcome is ridiculous. It just gives people a licence to say, 'I committed a crime but I was sleepwalking'. It has ruined her life, basically."

The incident took place on 3 October 2009 at a flat in Balerno, on the outskirts of Edinburgh. Thomas was undergoing basic training in the Army at Catterick, Yorkshire - he is no longer a soldier - and had returned home for the weekend. He and a number of others ended up drinking in a friend's flat.

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The teenager, a college student, said she fell asleep, clothed, on a bed, beside a friend. She told the jury that when she woke someone was having sex with her. Her tracksuit bottoms had been taken off and she was on her stomach and the person was behind her. She reached out her arm. The person having sex with her stopped. "He realised I was awake," she said.

She became aware it was Thomas, and he kept saying he was sorry. She said he was panicking.

"I was shocked. I didn't know what to do," she said. She was upset and crying, and her mother and police were contacted.

However, the first report to police was made by Thomas. He left the flat and went to the police station in Wester Hailes, but it was the early hours and the station was not open. He called 999 and said: "I've just sort of committed a crime." Asked what sort of crime, he said: "Rape."

He continued: "I think I'm actually asking for advice... I just completely s*** myself because of what happened..."

Later, in an interview with detectives, Thomas said: "I woke up beside (the teenager]. I was naked and she was naked. I honestly don't know what happened.I woke up on top of her."

In the trial, Thomas, of Wester Hailes, Edinburgh, was accused of having sex with the teenager while she was asleep and under the influence of alcohol and incapable of giving consent. His lawyer, solicitor-advocate John Scott, submitted a defence that he was "asleep and acting while in a parasomniac state".

Thomas's mother told the court he had been a sleepwalker since the age of about six. He would get out of bed and play with his toys, and, as he grew older, he urinated in cupboards. She had seen him sleepwalking as recently as Hogmanay.

A friend told the court of two instances when he and Thomas had shared a bed, one at either end, and the friend woke to find Thomas, asleep, with his hand down the friend's boxer shorts.

However, a former girlfriend who had lived with Thomas for a year said she never saw any episodes of sleepwalking. Nor had a former Army colleague.

Sleep expert Professor Colin Espie, of Glasgow University, told the court that "parasomnia" meant something which happened alongside sleep. It was uncommon for a man to have sex with a woman while asleep, but possible. He added that it was suggested that Thomas had quite quickly wakened, but that was inconsistent with the way people tended to be aroused from sleepwalking.

"When one wakens out of sleepwalking, it is seldom an immediate thing. You are quite confused and bewildered," said Prof Espie. "My overall opinion is that this man is vulnerable to sleepwalking, but this event is not consistent with the previous pattern of behaviour."

In her closing speech to the jury, the advocate-depute, Laura Thomson, argued that Thomas had been "wide awake."

She added: "It is my submission that on the evidence heard, James Thomas took advantage of her in a most disgraceful way and had sex with her when she was asleep on a bed."

For the defence, Mr Scott told the jury the case was "perhaps unique". He did not suggest anyone was lying, but much crucial evidence about how and when things happened was unreliable.

Mr Scott said: "It is entirely clear she was asleep at the time and incapable of consent. The real issue is not whether she was asleep or consented, it is whether the Crown has proved beyond reasonable doubt that James Thomas was not asleep. If you believe he was asleep, you must acquit."

The judge, Lord Tyre, directed the jurors that if Thomas's defence was believed, or it raised a reasonable doubt, it resulted in an acquittal. The jury deliberated for about three hours before returning a not proven verdict.

Scotland's conviction rate of sexual offences is already the lowest in Europe, at 3 per cent.Sandy Brindley, national co-ordinator of Rape Crisis Scotland, said: "What really worries me is that it will set a precedent for other people, accused of this crime, to use this defence.

"It would have disastrous consequences both for conviction rates and in terms of the number of people reporting rape, if juries are prepared to accept this kind of defence."

It was not disputed in court that the teenager did not consent to sex and woke up to find Thomas, 22, on top of her, after she had fallen asleep at a party.

Ms Brindley said: "It's a matter of great concern to us that someone can not consent to sex and, seemingly, have no recourse to justice. Rape is a crime that can have a significantly traumatic impact and it takes a lot of courage to report it."