by Jason Stotts
In response to my request for questions the other day, a reader asks:
I’d love to see your thoughts on “sleep sex” aka sexsomnia. I think it raises some interesting ethical issues around consent, and I would just like to hear more about it from your perspective. Thanks!
Unfortunately, I haven’t thought much about this issue before and I don’t know that I have a whole lot to say about it.
My first thought is that you’re definitely right that it raises some interesting ethical questions. From the perspective of the sleeper, the problem is that Ethics applies to voluntary actions and the actions performed while we’re asleep are certainly not voluntary. Yet, by the same token, we are still performing actions. For example, let us say that the sleep sex happens with someone who doesn’t consent, would this be rape? Well, yes and no. Certainly there was nonconsensual sex, but there was no intention to rape. In fact, if both people had sleep sex, then what would we call it? I would oppose calling sex when one or both of the people is/are asleep rape, as in these instances calling it rape would serve to diminish the severity of the act of intentionally and forcibly having sex with another person without, or against, their consent.
This is a good place to bring in a distinction between voluntary, involuntary, and nonvoluntary action. Voluntary action is action that we choose to do and that has a consequence we will; as, for example, if you choose to do X and X is the outcome, then the action is voluntary. Nonvoluntary action is action that we choose to do, but that has a consequence that we do not will; as, for example, if you choose to do X and Y is the outcome, then Y is nonvoluntary. Involuntary action is action that you do not will; as, for example, if you do something accidentally or if you are forced to do something against your will. The distinction is important, because these kinds of actions are very different.
In sleepsex, it’s clear that the action is involuntary: given that the person is asleep, they are not choosing to have sex with the person.
From a moral standpoint, the sexsomniac must be considered morally blameless. Unless, and this is an important caveat, he knows that he is a sexsomniac and does not reveal that information to a person who is (literally) sleeping with him. If he knows that he is a sexsomniac and does not reveal it, then he is blameworthy because he should have revealed to the person that he has been known to have sex with people in his sleep and that if they did not want this, then they should not sleep with him. In this case of a sexsomniac who does not reveal this, it seems like you could hold them morally blameworthy and it could be considered to be some kind of lesser moral offense, perhaps “unconsensual sex,” as opposed to full blown rape, since they still are not choosing to have sex with the person.
From a legal perspective, sexsomnia is very problematic. One could easily (intentionally) rape someone who was sleeping in the same bed and then claim that one is blameless, because it wasn’t voluntary, but was sexsomnia. As a legal defense, then, it must be treated as improbable and it must be proven to be something that the person actually suffers from by independent doctors. I would support a legal distinction between rape and some lesser crime, like “unconsentsual sex,” based on intentionality, like the distinction between murder and manslaughter.
It is interesting, though, that while sexsomnia is rather rare, the phenomenon of people doing things in their sleep is really not all that rare. Many people talk in their sleep or sleepwalk. The problem is that in these people, the paralysis that is supposed to keep us immobile during sleep is, at least sometimes, ineffective and this allows their body to be controlled by their sleeping mind. There is also the opposite, where in some people they become conscious while still being under the effect of sleep paralysis, with the effect of them being completely awake and conscious, but unable to move or speak. Frankly, I’d rather have sexsomnia than awake to find myself apparently paralyzed.
I hope this, at least somewhat, answers your question.
Additional questions can be submitted via Formspring or by e-mailing me directly at Jason(at)JasonStotts.com.
Comments
One response to “Formspring: Sleep Sex”
Sexsomnia is a really under-understood thing, and all I have are anecdotes. What ethical situation are we concerned with? Someone who is asleep, but whose partner has starting hooking up with them while they are asleep and she wakes up midthrough, though unconsciously participating throughout, so her consent is questionable? or the person who initiates hooking up while asleep, and presumably cannot be stopped by their conscious “victim/partner”?
This may just sound silly, but being someone who is comfortable with coming off as such: It’s really not that hard to wake a person up. Sleep walkers and sleep talkers get woken up all the time, and as someone who wakes up mid-hookup, I think if shaken or addressed intently (like “Mer!”) I would certainly wake up. I would hope this is a common case, and if you were the one unexpectedly awakened by your sleeping partner trying to hook up with you, you could wake them up pretty quickly. Though I may be completely wrong about this, I’m with you on the importance of disclosure and the need for legal concerns to be veeeery conservative about ever allowing “I was unconscious” to be an excuse for rape.
At base with consent we want it to be the case that when someone says “stop” or “no”, sexual interaction ceases. It seems reasonable to start foreplay et cetera when someone seems to be responsive, but unbeknownst to you they are actually asleep and wake up disoriented (or into it) mid-way through. The awaked person can express a lack of consent, at which point issues of rape come into play. The problematic question is when it is reasonable to initiate sexplay, because positive responsiveness is a reasonable and ubiquitous criterion of consent. This is a big problem with sex laws – consent is so frequently implied and implicit.
What seems most pertinent to me (again just from an anecdotal perspective) is that everyone I know who can hook up while appearing awake and consenting while really asleep are reasonable easy to wake up. Again, I’m hoping I am right about this, especially for those who are aggressively initiating sex in their sleep.
I DO think these issues need separating, for sexsomnia, as I understand it, covers them both: that of the unconscious person seeming to respond to sexual overtures and waking up halfway in, and that of the unconscious initiator. Different ethical issues arise with these different circumstances.