After Two Trials, Two Appeal Hearings, Judge to Rule on ...

Seven years after she was sexually assaulted by a stranger during the night, an Ottawa-area woman will find out whether her assailant is criminally responsible for his act. The accused, Ryan Hartman, 38, has admitted that he sexually assaulted the woman while sleeping on the same air mattress after a 2011 Brockville house party. But Hartmans defence lawyer, Margaret Bojanowska, contends he was asleep during the sex assault he pulled down the victims pants and sexually assaulted her and not criminally responsible for his involuntary actions.

A Brockville judge will rule on the rarely used legal defence, sexsomnia,on Nov. 19. Sexsomnia is a disorder that causes people to engage in sexual behaviour everything from touching to intercourse while still asleep.

It was added in 2013 to the DSM-5, the American Psychiatric Associations authoritative classification of mental disorders. In an interview, the victim said shes anxious for the case to end after two trials and two appeal hearings. It has been dragging out for way too long, the woman told this newspaper.

Its a constant burden on my mind. Its always in the back of my mind: Its not over. Its not over.

In court, the woman has testified that she went to the Brockville party with her boyfriend, and that they fell asleep together on a double air mattress on the kitchen floor at about 2:30 a.m. She woke up sometime later with pain in her buttocks, her belt undone and her pants down.

She got out of bed, turned on the bathroom light, and became distraught when she saw it was a stranger who had committed the assault. In testimony at his first trial, Hartman said he fell asleep in a chair then went in search of a bed after waking with a sore neck. He crawled onto the open side of a double air mattress with a sleeping couple.

Hartman said he woke up alone on the air mattress with an erection, his pants unzipped, and a woman accusing him of rape. The woman, whose identity is protected by court order, said the incident changed her life. She wanted to be a parole officer before she was sexually assaulted, the woman said, but could not bear the idea of working with offenders after being victimized.

How didnt it change my life? It changed the way my personal relationships are, she said, my sexual relationships, my career path. It has affected my life in every single way.

The case has an unusual history. At his first trial, Hartman denied touching the sleeping woman. But based on the womans testimony and other corroborating evidence, Hartman was convicted of sexual assault in May 2012.

After losing an appeal, he was sentenced to 14 months in jail. Hartman then went to the provinces highest court, the Court of Appeal for Ontario, with a dramatically different legal position. Contrary to his evidence at trial, he told the appeal court that he did sexually assault the woman but insisted he was asleep when it happened.

The appeal was based on new evidence provided by Dr. Julian Gojer, a forensic psychiatrist who concluded that Hartman was probably asleep during the incident and his actions involuntary. That opinion, Dr.

Gojer said, was supported by a family history of sleepwalking and by evidence from Hartmans girlfriend who said she once awoke to find him, apparently asleep, masturbating beside her in bed. Related Sexsomnia defence unusual but not unknown The Crown submitted affidavits from U.S.

sleep expert Dr. Mark Pressman, who said that Hartman was likely awake but drunk during the assault. In July 2015, the appeal court decided to send the case back to trial to determine the sole issue of whether Hartman was not criminally responsible for his actions because of sexsomnia.

The appeal court said Hartmans was one of the rare cases in which an offender should be allowed to advance a new defence while standing at the prison gate. If hes found not criminally responsible, Hartman will have to appear before the Ontario Review Board to be assessed. It can order him detained in hospital, released with conditions, or discharged without any terms.