It was not long before this that the neuropsychiatrist Dr Colin Shapiro had coined the term “sexsomnia”, and it was he who carried out a thorough investigation into the incident. He interviewed the defendant’s friends, family, and ex-girlfriends, and monitored his brain activity while sleeping. At trial, he expressed the view that the attack had been committed during an episode of parasomnia, otherwise known as sleepwalking. Several well-known triggers were present: alcohol, exhaustion, emotional stress.

The prosecution denied that the attack had been involuntary, but did not call on any other expert to contradict Dr Shapiro. The judge agreed with the defence, and the defendant walked free. A judge in the Court of Appeal, which examined the case comprehensively, deemed sleepwalking attackers “one of the most difficult problems encountered in the criminal law”. A sleepwalking victim is perhaps an even more troubling proposition, because a further question arises: could there have been a “reasonable belief in consent”? And can a complainant suspected of sleepwalking be expected to provide contact details of ex-partners, or submit to intrusive testing? One case of a sleepwalking victim — or so the defence argued — is the subject of a recent BBC documentary, Sexsomnia – case closed?

The facts are similar to the Canadian croquet case. Jade McCrossen-Nethercott — who has waived anonymity — fell asleep on a sofa at a small London house party in 2017. She had not drunk a great deal. When she awoke, she felt as if she had been penetrated. Her trousers and underwear were off. The man responsible was beside her. She challenged him. He said he thought she had been awake.

The documentary tells the story of her contact with the criminal justice system following this horror. We are shown an extract from her video-recorded account to police, in which she discloses a history of parasomnia. The defence, seeing this, instructed a sleep expert, who said there was “a strong possibility” of “sexsomnia”. But the phrase “strong possibility” comes from this media report; the documentary puts it much lower: “consistent with”. This is not the only piece of apparent one-sidedness in the programme. When we are played the recording of the Crown Prosecution Service lawyer telling Ms McCrossen-Nethercott that they are going to drop the case, the clear impression is given that the decision was based on only a single expert report, from the defence.

In fact, as is later written in a super-imposed caption, there was a report from a second expert. Not included in the caption is the fact that the report was commissioned by the Crown itself. An expert’s first duties are to the truth, and to the court, but it is not uncommon for bias to creep in. So it was quite proper for the Crown to obtain a second opinion — which, it turned out, also supported the “sexsomnia” theory. If I were the defence lawyer in a case like this, armed with two expert reports that suggested a real possibility of sleepwalking, I would be feeling very confident. As the CPS explained to Ms McCrossen-Nethercott, the expert reports meant that the evidential threshold of a 50% chance of conviction was no longer met. The court duly recorded a Not Guilty verdict. There would be no trial.

But Ms McCrossen-Nethercott challenged the CPS’s decision. In particular, she felt that the strength of the sexsomnia contention was not enough to end the case before trial: there was no evidence that she’d engaged in sexual activity during any of her previous sleepwalking episodes. One of the experts had said that this could have been her first episode. Ultimately, the Chief Crown Prosecutor who performed the review agreed with Ms McCrossen-Nethercott: these difficulties should have been examined in court. Small comfort, of course, when the defendant had already been formally acquitted. Ms McCrossen-Nethercott is now suing the CPS.

Her case is thought to be the first in which the complainant’s alleged parasomnia, rather than the defendant’s, is central. But there is no doubt that sexsomnia exists, and is not all that rare among those who sleepwalk. And although it is about three-times as prevalent among men as it is among women, it certainly affects both sexes.

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In an appearance on Woman’s Hour, the director of Sexsomnia — Case Closed? said she had found about 50 cases over the last 20 years in which the issue has arisen. In one of them, a young Yorkshireman was acquitted of raping a woman in his flat on the expert evidence of Dr Irshaad Ebrahim. It was slightly disappointing, therefore, to see Dr Ebrahim in the documentary telling Ms McCrossen-Nethercott that “there are a lot of lawyers trying to get business out of it [i.e. sleepwalking defences]… The ones who are enabling it are the ones who are advertising they can get you off”. A lawyer with experience in this niche area must surely be permitted to advertise their competence — how else is an innocent sexsomniac to choose a representative? And I doubt many, or any, lawyers are claiming that they can use the defence to “get you off”.

Other 21st-century parasomnic rape acquittals include an RAF serviceman, who in 2006 had sex with a 15-year-old girl after a party, and whose longstanding somnambulism earned him the nickname “nightrider” from his colleagues; a drama student who had sex with a non-consenting woman at a house party in 2008; and a roofer who in 2007 had sex with his friend’s wife after a barbecue. All these cases, and many others like them, have one startling thing in common: the defendants were acquitted entirely, with no requirement to submit to treatment, or to avoid the triggers that increase the chance of parasomnic attacks occurring.

And this is the issue that the Ontario Court of Appeal had to grapple with in 2008, after the croquet party acquittal. The trial judge’s finding that the attack had been involuntary was not open to challenge. But the prosecution argued on appeal that he had been wrong to find that parasomnia should result in an acquittal; rather, they said, he should have been found insane — and therefore liable to be detained. The Appeal Court agreed.

In Canada, as in the United Kingdom, the law divides involuntary acts into two separate categories of automatism: insane, and non-insane. And there were two recent precedents on how this should be done. First, R v. Parks (1992), in which a sleeping man drove ten miles to the home of his mother-in-law and bludgeoned her to death with a steel tyre lever. There, the Supreme Court had upheld the finding of non-insanity. Secondly, R v. Stone (1999), in which a man stabbed his wife 47 times after suffering an abusive tirade (she said, he claims, “that she couldn’t stand to listen to me whistle, that every time I touched her she felt sick… that I had a little penis and that she’s never going to fuck me again”). The judges in that case shifted the law firmly in the direction of insanity for such cases.

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The Supreme Court in the croquet case expressed the view that part of the reason for the shift in Stone had been the contemporaneous softening of the sentencing options available for “insane” defendants. The Court in Parks, they noted, had had an understandable reluctance to condemn a sleepwalker to indefinite detention in a mental institution. Post-Stone, however, outcomes became more flexible.

Here, “insanity” in the criminal law requires a “disease of the mind” — an outmoded phrase from an 1843 opinion of the UK Law Lords — but neither concept matches any medical definition. The legal distinction between insane and non-insane automatism has been described in various different ways over the years, but the real nub of it was captured by Mr Justice Bastarache in Stone: “The fundamental question … at the centre of the disease of mind enquiry [is] whether society requires protection from the accused.”

And so it should be. But in the United Kingdom we do not seem to have caught up. In 1991, in a case in which a 32-year-old man attacked a young woman he fancied with a rock and a video-recorder, apparently in his sleep, the Court of Appeal held that sleepwalking violence should generally be regarded as insanity rather than automatism. But as press reports of sexsomnia acquittals suggest — and as the Law Commission has since confirmed — common practice in the trial courts is to allow verdicts of non-insane automatism for sleepwalkers, as if they are no threat to society.

Automatism is better for the defendant in terms of outcome — acquittal rather than detention in a mental hospital — but also because of the different burden of proof. A mere doubt is enough for a non-insane automatism acquittal, whereas the defence have to prove insanity to be likely. There are, therefore, sound conceptual and public protection arguments in favour of treating sleepwalking as insanity. (Not that it would have helped Ms McCrossen-Nethercott: the defendant cannot be expected to disprove the absence of reasonable belief in consent.)

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If we did treat sleepwalking as insanity — as many argue we should — there would at least be the possibility of giving violent sleepwalkers medical and other treatment, forcibly if need be, in order to protect the public. The case of former soldier Joseph Short illustrates the potential benefits of this approach. Short was accused of a 2011 rape in Scotland, but the Crown dropped the case after leading expert Dr Colin Espie supported a diagnosis of sexsomnia. He was then tried in Hull for a further rape, and acquitted on the same grounds. In 2016, he was tried in Birmingham for another two sex attacks.

This time, he was convicted, and received a 15-year extended sentence. Dr Espie had new evidence to give: Short had not followed his advice on how to reduce the risk of a sexually violent parasomnic episode. But some more formal constraints on his freedom might have saved Short’s later victims, assuming (which we should not) that he was in fact a somnambulist rather than a lying rapist from the start. In 2013, the Law Commission recommended a wholesale reconsideration of the law in this area. It has not been followed up. There is no evidence of an epidemic of false sexsomnia defences, but such cases ought to be dealt with consistently, and with public protection foremost in mind.

The law’s response to one of the earliest well-documented cases of violent sleepwalking may serve as inspiration. In 1843, a doting father, 28-year-old Simon Fraser, got up in the middle of the night, picked up his 18-month-old son, and killed him by repeatedly smashing the boy’s head against the walls and floor. He thought he had been fighting a monster. The jury found him not guilty, and — following some dispute between experts — not insane. There was, however, according to some reports, an informal arrangement agreed: for the rest of his life, his wife would lock him in his bedroom at night.

But these days it might be best if the Courts could deal with those who commit involuntary violence by subjecting them, in appropriate cases, to the enforced supervision of medical professionals and probation officers. It is unwise to leave even an accidental rapist’s remedy to his own sense of personal responsibility.

An investment of $391 million would address root causes of incarceration by funding mental health services, housing and rehabilitation, along with a programme named “Community Based Violence Reduction”. So far, so good. But the reforms would also redefine how victims and offenders should be dealt with, with increased funding to “restorative justice” in “serious felony level cases that would otherwise result in detention and incarceration”.

Restorative justice (RJ) is described as an alternative to prison; it is a non-punitive response to criminal behaviour. The idea is to bring together the person who inflicted the harm (the “responsible person”, in RJ terminology) and the victim, often in the presence of community representatives. The perpetrator is supposed to accept responsibility for the harm inflicted and reach an agreement with the victim about how to make amends.

De Blasio’s reforms were welcomed by prison reform campaigners, as well as pretty much every liberal in the State. Alissa Ackerman, a sex crimes policy researcher at California State University and one of the few facilitators of restorative justice sessions for rape victims, has said that RJ, “allows survivors to have their pain heard and stories acknowledged, and is an opportunity for the person who caused the harm to be accountable for their actions”.

I spoke to one proponent of RJ, who asked not to be named “in case I am seen as colluding with carceral white women”. White himself, he is a newly trained lawyer in Washington DC, specialising in “replacing the racist system with a true healing process for both parties”. “Anti-rape feminists are probably responsible for more black men being incarcerated than anyone else in modern-day America”, he says. “Locking up African Americans is a product of slavery.” Ben went on to suggest “community resolution” and “non-violent strategies” to address sexual assault.

But for feminist activists campaigning against male violence, who have seen the consequences of the reforms up-close over the last three years, RJ constitutes the very opposite of justice.

Sarah, whose name I’ve changed, runs a support service for victims of male violence in NYC and is “appalled” that RJ is becoming a substitute for criminal justice sanctions. “What we are seeing is what we have seen forever”, she tells me, “which is the under-policing and under-protection for women, including women of colour. But some BLM activists are claiming that feminists calling for CJS sanctions for rape and domestic abuse is flat-out racist, because black men are overrepresented in the prison population.” As a result, she told me that “black and brown women, indigenous women … are the ones who are bearing the consequences of us not holding men accountable for their violence. They are the ones who are being murdered and raped and their abusers are walking free.”

According to the ideals of RJ, after a crime is committed the offender and the victim should meet face-to-face. The victim is not to blame or judge the perpetrator, but rather describe the impact of the offence, in order to “heal” and become “empowered”. RJ sees victim and perpetrator as equal, both in need of support and understanding. Supposedly modelled on the conflict resolution practices of certain indigenous cultures, there is much talk of circles. Healing circles are held for the perpetrator, before a sentencing circle takes place; later, there are follow up circles. The outcomes may include an apology or financial compensation. Some participants, including the victim, sign a confidentiality agreement.

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RJ is considered a suitable remedy for domestic violence, childhood sexual abuse and sex trafficking, among other violent crimes predominantly committed by men. Most of these crimes are committed against women by men known to them: male family members, partners and colleagues. “The perpetrators have worked very hard, often for years, to condition the person they are abusing to not disclose, to minimise, to protect his emotions: to protect his character publicly”, says Sarah. “They’ve been using manipulative tactics to inspire self-doubt, blame and fear, in the person they are abusing.”

And victims of this kind of abuse may feel coerced by RJ practices, which are conducted, as Sarah said, “without any understanding of the dynamics of power and control, the impact of a trauma-coerced bond, and also the amount of time and commitment that it actually takes to elicit genuine behaviour change in abusers”.

I meet with Diane, whose name I’ve changed, at a café in Harlem, NYC. She was introduced to me by her rape counsellor. Diane was seriously sexually assaulted by a senior member of her church, having been targeted and sexually harassed by him for months. “I decided to report him to the police, despite the fact that my community is rarely well served by the cops.” Diane and the perpetrator are African American. “There are too many vulnerable young people in the church, and I didn’t see why he should poison the congregation.”

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The perpetrator, considered to be a man of “good character”, with no criminal convictions, admitted to the lesser charge of inappropriate sexual touching, denied committing serious sexual assault, and agreed to partake in RJ.

“I was contacted by the local service that runs these things,” says Diane. “They told me it was important that we reach an agreement and rebuild trust. I was told nothing could be gained from taking him on a route where he could end up in jail. It felt like I had no choice.”

But having read up on RJ, Diane decided not to participate in it. “I was judged and blamed by the service”, says Diane, “as though I should have accepted the scraps from the table and have him say ‘sorry’ or whatever. He got away with what he did to me, and a man like that pretending to regret what he did would just be lies.”

One report, published in 2016, is often used to justify replacing criminal sanctions with RJ. It is entitled “Restorative Practices in cases of Intimate Partner Violence, Sexual Assault and Dating Violence: A Roundtable Discussion”. While it claims that RJ focuses on victims of violence and their needs, the report also ironically reveals who is actually centred in the process. One attendee is quoted as saying about perpetrators of male violence: “Do we actually blame them as a perpetrator when they were violated at a young age?”

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To be taken out of the criminal justice system and put in a situation where everybody is required to empathise with him — including his victim, who is forbidden from blaming or shaming him — is a violent man’s dream come true.

Like most on the Left, I believe that only the most dangerous criminals should be locked up. I have criticised the fact that the most vulnerable and disenfranchised are most likely to be in jail. But the campaign to end male violence is my life’s work. Victims have to come first. One service provider working with sexual assault victims describes reports from young survivors in California that they are “sick of going to rape circles”. She has also heard from women and girls of colour being pressured to engage in RJ instead of making police reports.

While RJ is not yet widely practiced throughout the US, it is growing in popularity in several states — and threatens to become federal policy. In its 2022 budget, the Office on Violence against Women requested $25 million, “to support restorative justice responses to domestic/dating violence, sexual assault, and stalking, and research, evaluation, and technical assistance related to such responses”.

The media consistently reports that research shows RJ is very successful. One paper, by Mary P Koss, is often cited. Koss asked victims to complete a survey about their PTSD symptoms before and after they engaged in RJ, and concluded that victims who complete an RJ process exhibit a marked decrease in those symptoms. But PTSD symptoms almost inevitably decrease as time passes after the traumatic event. Asking the victims and perpetrators of serious crimes to “hug it out and move on”, as Sarah describes it, was simply not shown by the research to be effective.

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I asked several experts on violence towards women if there is any reliable data about the efficacy of RJ and was met with a resounding “no”. When I spoke to Marcia, a veteran advocate for victims of male violence, she pointed out that in cases of domestic violence, putting the perpetrator and the victim in a room together is “outright dangerous”. Perpetrators of domestic abuse, and of sexual assault, are more likely than any other offenders to repeat their crimes — often against the same victim. But the well-publicised evaluations of RJ don’t include follow-ups that measure the recurrence of violence within domestic abuse scenarios.

Marcia asked for anonymity because “right now there is so much intolerance on the Left that even those of us who are part of the Left fear retaliation if we don’t conform.” She emphasised that rape victims want their rapists prosecuted, but with the Left advocating for RJ, victims “feel that there is no movement standing behind them. They feel utterly alone.”

The idea that serious, sexual and violent crimes should be dealt with by “community leaders”, outside the criminal justice system, is shockingly naïve at best. At worst, it is re-victimising women, and giving perpetrators a free pass. Liberal cities like New York are conducting an experiment with women’s safety and lives — and ignoring whatever they have to say about it.

Pornhub has a new category: “Ukrainian girls and war rape videos”; it is dominated by Russian soldiers documenting disgustingly brutal crimes. Domestic violence and street harassment have already spiked. Female refugees are falling victim to pimps and traffickers; official channels — the police, hospitals, legal systems — won’t help them.

Where women are concerned, “the foreign coverage of the war is concentrated mostly on women fleeing with children”, Maria Dmytrieva tells me. The Ukrainian feminist activist — a key member of the Global Network of Women Peacekeepers — believes this coverage misrepresents the reality of war for women, and the ways in which women specifically become targets for attack.

We speak via Zoom, and as night falls, she sits in darkness, so as not to be spotted by saboteurs. Although the Russians had not yet arrived in her small town, a few miles outside Kyiv, like everybody else in Ukraine she is in a perilous position.

Maria has been involved in the campaign to end male violence in Ukraine for more than two decades. I have visited her in Ukraine on several occasions and have seen her make powerful men in senior government positions quake when she rails against injustices towards women and girls.

One study from 2019 found that 75% of women in Ukraine reported experiencing some form of violence since the age of 15, and one in three reported experiencing physical or sexual violence. According to a recent statement by the United Nations, crisis and displacement has recently put women in Ukraine at increased risk of sexual and physical violence and abuse. There are no figures as of yet to show the levels of violence experienced by women and girls since the Russian invasion, but plenty of evidence is being amassed by women’s NGOs.

In many ways, the experiences of women in Ukraine echo the plight of women in wars throughout history: we face reduced protections from violence and often an increase of domestic abuse. The situation is exacerbated, though, by the fact that Ukraine is being invaded by a country which effectively decriminalised domestic violence in 2017. It is well-documented that, post-conflict, when traumatised men return home, levels of violence against women increase. But if Russia wins, the right of Ukrainian men to beat their wives will be enshrined in the law of the land.

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“So far we have felt as a nation, united around this common threat”, Dmytrieva told me. “But we are pretty much bound to have the growth of cases of domestic violence, of male violence against women, both during and after the war is over”.

Domestic violence is not the only threat to women in war. There is a “new wave of sexual violence”, with 11 reports from different women that they were raped by Russian soldiers in Kershon, confirmed by a local gynaecologist. Of those 11, only five survived. Other reports of sexual violation by troops are being picked up by the UK media, but, according to Dmytrieva, little is being done to help.

Rape victims will suffer consequences long after the conflict has ended — especially those whose violation is circulated on the internet. The existence of this sick revenge porn ensures that the women brutalised in it will never be able to return to a normal life. Even if they escape the conflict, it then ends, and they make it home, they are likely to be shunned by their families.

The videos are perfect ammunition for pimps and traffickers to use to control women and force them into prostitution. Displaced women and girls are often without any food, shelter or income, with many caring for children. Traffickers seize the opportunity to coerce women into selling sex, and soon they are trapped and held captive. “It is really terrifying how capitalism and imperialism are going hand in hand to exploit those who cannot defend themselves right now”, Dmytrieva tells me. “And it is truly terrifying to see that amongst all this surge in humanity in caring for other people, there are those who want to exploit this weakness and make money out of it. It is very disheartening”.

“Organised gangs [are] trying to abduct young women on the Ukrainian Polish border and we already have several cases in Germany where the girls have been abducted by pimps in the refugee camps”, Dmytrieva explains. Punters in Germany are delighted; feminist colleagues have seen screenshots of them “talking online with each other about how happy they are to have young fresh Ukrainian women crossing the German border”. With no home, no money, no job, no resources, and a very limited legal framework protecting them, these displaced women are among the most vulnerable in the world.

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Women are vulnerable to pimps within Ukraine as well. In the East, even before tensions with Russia escalated into a full-scale invasion, the local economy was on its knees. Previously high-tech industries had been stripped; machines and other valuable assets were carted, wholesale, back to Russia. Few options for employment were left. As a result, the number of women in prostitution in Ukraine before the war was around 80,000. That figure does not include children.

For now, the police have their hands too full “going around looking for saboteurs” to investigate or prosecute crimes against women. Dmytrieva understands the urgency. Terrorists are “placing bombs, explosive devices and shells in the basements … they are turning our country into a minefield”. But she is hopeful that the Russian invasion will be repelled, making space for better policy to protect women.

While authorities are too busy to consider the impacts of the conflict on women, those who do an international trade in children are taking full advantage of the situation. “Ukrainian surrogacy clinics are now advertising women through Facebook, even during the occupation”, Dmytrieva told me. The press in Ireland and elsewhere have reported on babies “rescued” from war-torn Ukraine by their surrogate parents, and on surrogate parents “in limbo”, because “their” children are stuck in the now inaccessible country. No word of the plight of the women who carried those children, postpartum and vulnerable in a war-torn country, sometimes literally “holding the baby” that they had made no plans to care for, as the Russians invade.

Ukrainian women are under siege, with profound threats on every front, whether they flee or stay. Of course, men are in danger too. Ukraine does not allow men between 18 and 60 to leave the country. This rule is, Dmytrieva told me, “reasonable”. But the women suffer a different and ongoing kind of violence.

Nevertheless, it is not only the ways in which women are victimised that is newsworthy. “There are a lot of women who have stayed, who picked up arms, who secure the logistics for our army. There have hundreds and thousands of women doing this work that makes it possible for the army to fully function”.

Nearly 17% of the Ukrainian army is female, one of the highest percentages in Europe. Dmytrieva is a pacifist, but I could hear the admiration in her voice talking about the women who have taken up arms. In the face of a foreign invasion, she is aware that “we cannot afford a weak army, because that is what brought us into this situation … with having Russia for a neighbour, we need a very strong army.”

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She is furious with the British feminists who campaigned to stop Johnson sending weapons to Ukraine to avoid “escalating” the conflict. “Maybe they are not aware that if Russia takes us over, there will be no women’s rights whatsoever”. She does understand these women’s desire for peace but thinks that it is “heavily misplaced”. When I asked her what feminists in Britain can do to support Ukraine, she replied, without missing a beat, “send aircrafts, lots of them!”

I can’t send Dmytrieva the fighter jets that Ukraine so desperately needs, to repel Russian air raids and artillery. But she speaks for me when she says: “As a feminist, I cannot turn a blind eye to the peril that women are facing in Ukraine, both on the front lines of armed conflict and when they come back home”. Local, national and international women’s organisations must confront the horrors faced by Ukrainian women; only then can they work out how best to respond to the Russian invasion.

In the meantime, Dmytrieva points out, there are no women at the negotiation table. Maybe because compromise is not what is being sought. “There is not much space for negotiation. We want them gone and they want us dead”.