Three years on from a decision to drop the prosecution of her alleged rapist, Jade McCrossen-Nethercott received a payout from the CPS, which said the defence should have been challenged in court
Jade McCrossen-Nethercott claimed she had been raped while she slept but a defence expert said it could have been ‘sexsomnia’.Jade McCrossen-Nethercott claimed she had been raped while she slept but a defence expert said it could have been ‘sexsomnia’.Thirteen days before her alleged rapist was due to stand trial, Jade McCrossen-Nethercott received devastating news.
The 32-year-old, a client care manager for the British Pregnancy Advisory Service, was troubled by how conclusive the diagnosis sounded. The defence-appointed expert Dr Zenobia Zaiwalla had said there was a “strong possibility” she had suffered an episode of sexsomnia. In the months that followed the collapse of the trial, McCrossen-Nethercott became suicidal. She suffered flashbacks and panic attacks and turned to drink and prescription drugs to cope. “It took me to the darkest points, more so than I’d ever experienced. My kind of sense of self was completely obliterated,” she said.
When the accused was first interviewed by police, he initially answered “no comment”. After the swabs found his semen inside her, he was interviewed again and gave a statement that sex had happened but it was consensual, before returning to answering “no comment”. She found that sleep-walking as a child and sleep-talking were indeed potential precipitating factors for sexsomnia – as was loud snoring, which the experts said could indicate sleep apnoea. But all those conditions were fairly common. The link was far from conclusive.
The CPS expert also took this as evidence to “support the account that she cooperated with the sexual activity, indicating either consent, parasomnia or drug-facilitated pseudo-consent”.McCrossen-Nethercott discovered research indicating that it was not uncommon for those experiencing “sleep rape” to remain asleep throughout. In one analysis of police reports about 39 sleep rape cases, four of the victims “were entirely unaware that they had been … penetrated by the suspect”.
McCrossen-Nethercott’s research left her with questions. If there was evidence of the condition being misused in other cases, why had the CPS not challenged the defence claim of sexsomnia at trial? Why hadn’t the sleep experts assessed her before reaching their views? And what was to stop others using it to discredit victims, or to get themselves off the hook?Sexsomnia: Case closed?
Where before she had been a deep sleeper, she developed anxiety around bedtime. She stopped sleeping near family members or friends, in case she had an episode, and although she never had previously, she worried she might initiate sexual activity with her long-term partner without his consent. “I felt like I had to come with a disclaimer,” she said.She turned to doctors for answers.
McCrossen-Nethercott also submitted subject access requests to obtain copies of the reports the sleep experts had written. In them they considered multiple theories, including that she was so drunk she couldn’t remember the incident, which they agreed was unlikely, and that the defendant raped her as she slept, which neither could rule out.
Like Zaiwalla, he did not speak to McCrossen-Nethercott directly. His report disagreed with some aspects of the other expert’s conclusions, including comments that there was a “strong possibility” McCrossen-Nethercott had sex with the defendant in a “dissociative state while subconsciously believing she was with her partner”. He wrote: “I do not agree that it is relevant to speculate on whether had subconscious cognitions that equated to a belief she was sleeping with her boyfriend.
He also cited evidence that McCrossen-Nethercott had found a glass of red wine she was given by the defendant “unpalatable”. “GHB tastes salty,” he wrote. “Drug-facilitated sexual assault is a possible explanation of events.” It was not enough. The CPS felt the fact that a second expert could not rule out sexsomnia was enough to fatally undermine the case.
“In the end we only help out with the science and what might have happened,” he said. He added that he asked the CPS if he could assess McCrossen-Nethercott directly, but the request was refused.
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