Judge rejects sexsomnia defence, finds Manitoba man guilty of child sex assault

The Manitoba Law Courts building in Winnipeg on May 8, 2024. THE CANADIAN PRESS/John Woods

WINNIPEG — A judge has rejected the defence of a Manitoba man who claimed he was suffering from sexsomnia, a rare sleep disorder, when he sexually assaulted an 11-year-old boy.

Provincial court Judge Mary Kate Harvie found Clinton Muskego guilty of sexual assault and sexual interference for touching the boy at a Winnipeg apartment in 2020.

A defence lawyer argued Muskego, then 28, had undiagnosed sexsomnia. People who have the disorder exhibit sexual behaviours in their sleep.

“While (Muskego) may suffer from some form of sleep related disorder, that does not explain his actions on the night in question,” Harvie said in a Feb. 7 written decision.

“I am satisfied that (Muskego) assaulted the complainant in manner as described, and that he was not in a state of insane automatism at the time of the offence.”

Sexsomnia is a defence that’s seldom used in Canada, but it has had success in some cases. A Winnipeg man was found not criminally responsible in 2013, as court ruled he had sexsomnia when he sexually assaulted his wife numerous times over four years.

In this case, court heard a woman, her grandson and Muskego were staying at an apartment in Winnipeg. The woman and Muskego had known each other for many years.

“The group spent a pleasant evening together at the apartment,” said the judge, adding the boy played video games while Muskego gave the woman a facial treatment.

Muskego, who testified at trial, admitted to consuming a “significant” amount of cannabis throughout the day. In the evening, he drank two bottles of red wine and some beer.

Muskego described his intoxication level as a “seven or eight, at least,” out of 10.

Under cross-examination, he said he was blacking out by the end of the evening and didn’t really remember going to bed.

The trial heard Muskego and the boy were to sleep on separate mattresses in the living room.

The boy testified that he woke up to Muskego breathing on him, and the man’s mouth was open and his eyes were closed. The boy said the man was touching his genitals and hugging him.

The boy managed to escape and told his grandmother what happened. She immediately reported it to police.

Muskego testified that he had no recollection of assaulting the boy because he was asleep. Court heard he co-operated with police, saying he wanted to find out what happened.

Muskego told court he suffered from “night terrors,” talked in his sleep and was often extremely tired in the morning.

Dr. Colin Shapiro, a Toronto-based psychiatrist and expert in sleep disorders, examined Muskego and testified for the defence.

Shapiro said he believed Muskego was in a parasomnia state at the time and that the assault was a “sexsomnia act.”

Crown counsel accepted the doctor’s qualifications but argued his evidence was inconclusive and that the assault was more likely a result of Muskego being intoxicated and acting out.

The judge said she had concerns about evidence provided to Shapiro and a forensic psychiatrist, which differed from evidence provided in court.

This report by The Canadian Press was first published Feb. 18, 2025.

Brittany Hobson, The Canadian Press