‘It was more damaging than the actual rape itself’: Woman’s anger as case is thrown out over ‘sexsomnia’ claim after defence lawyers accused woman of suffering from rare condition that meant she had sex while she was asleep

• Alleged victim’s case was dropped as defence argued she had ‘sexsomnia’
• CPS has now admitted that the allegations should have been tested at trial
• But there is no prospect of case being reopened as attacker formally acquitted

An alleged rape victim whose case was dropped because defence lawyers claimed she had an episode of ‘sexsomnia’ has received an apology from the Crown Prosecution Service.

The allegations by Jade McCrossen-Nethercott were dismissed when the defence argued – in a legal first – that she had a rare sleepwalking condition causing people to engage in sexual activity while asleep.

The CPS dropped the case in October 2020, but has now admitted the allegations should have been tested at trial. But because Miss McCrossen-Nethercott’s alleged attacker was formally acquitted in court, there is no prospect of the case being reopened.

The allegations by Jade McCrossen-Nethercott, pictured, were dismissed when the defence argued – in a legal first – that she had a rare sleepwalking condition causing people to engage in sexual activity while asleep

The CPS dropped the case in October 2020, but has now admitted the allegations should have been tested at trial. But because Miss McCrossen-Nethercott’s, pictured, alleged attacker was formally acquitted in court, there is no prospect of the case being reopened

The 30-year-old, who works for the British Pregnancy Advisory Service and has waived her right to anonymity to speak about her case, said her thwarted pursuit for justice has been at times more harrowing than the alleged rape itself, and she is pursuing legal action against the CPS. ‘I want to hold the CPS accountable for their failings and hopefully make sure there is some change for the better,’ she said.

‘The whole thing has been horrendous and has had a terrible impact on me. It has been so bad I was considering suicide last year, and that has all stemmed from how this case was dealt with and ultimately closed.

‘I often feel that this was more damaging than the actual rape itself.’

Miss McCrossen-Nethercott first reported being raped after she fell asleep fully clothed on a sofa after a party in March 2017. She awoke at 5am half-naked and with the feeling she had been penetrated but with no recollection of what had happened.

A man on the couch next to her was charged with rape after forensic swabs detected his semen, but he denied the charge. Miss McCrossen- Nethercott said she had never heard of sexsomnia before but believes it was seized upon by the defence after she made a throwaway comment during her police interview about sleeptalking as a child. Two sleep experts, one instructed by the defence and another by the prosecution, suggested it was possible she had an episode of sexsomnia on the night in question.

They said this could have given the defendant the impression she was awake and consenting. ‘It came completely out of the blue, and it was baffling,’ she said.

‘I’ve had two long-term relationships spanning 13 years, and I’ve never had anything like this. I don’t see how this can be one isolated incident, that just so happens to be the time that somebody I would never have consented to have sex with had sex with me.’

The CPS had said there was no realistic prospect of conviction. A person cannot consent to sex if they are asleep, but the law states that someone is not guilty of rape if they had reasonable belief in consent, and the defendant was formally acquitted.

Miss McCrossen-Nethercott, pictured, first reported being raped after she fell asleep fully clothed on a sofa after a party in March 2017

Miss McCrossen-Nethercott, pictured, has shared her story with the BBC, which has uncovered more than 50 cases in the last 20 years in which a defendant claimed to have sexsomnia when accused of rape

CPS guidelines state that sexsomnia and sleepwalking defences should be ‘robustly challenged’. A chief crown prosecutor, Malcolm McHaffie, reviewed the case and found it should have gone to trial.

Miss McCrossen-Nethercott has shared her story with the BBC, which has uncovered more than 50 cases in the last 20 years in which a defendant claimed to have sexsomnia when accused of rape. Her case is thought to be the first where the defence argued the complainant has the condition.

A CPS spokesman said: ‘Rape is a devastating offence and securing justice for a victim can, in a small way, help them to overcome the trauma.

‘We have apologised unreservedly to the victim in this case. The expert evidence and defendant’s account should have been challenged and put before a jury to decide.

‘We are committed to improving every aspect of how life-changing crimes like rape are dealt with and are working closely with the police to transform how they are handled.

‘We remain positive about the progress that is being made.’

• Sexsomnia: Case Closed? airs on BBC3 and iPlayer tonight at 9pm.

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