The Ontario Court of Appeal is re-examining the case of a 35-year-old man who was acquitted of sexual assault charges in 2003, after his defence team succeeded in convincing jurors that he suffered from sexsomnia.  

Jan Luedecke was acquitted on all charges by a judge who ruled that he was in a deep sleep at the time of the attack and did not act voluntarily.   The victim was sleeping on a couch in Luedecke's home following a party, and woke to discover him having sex with her. 

"I have never been out for revenge," she told CityNews.  "I believe in accountability and consequences for actions, and he has not faced any of them."

Sexsomnia is a form of Parasomnia, which is any sleep disorder such as sleepwalking or sleepeating. It's believed to affect about 3% of the population and has been used as a defence before. In 1987, Ken Parks drove more than 20 kilometres, stabbed his mother-in-law to death, then tried to kill his father-in-law. A jury found him not guilty because he was asleep at the time.

On Thursday the Crown prosecutor asked the Court of Appeals to classify Luedecke as mentally ill because of his condition.

"What the court is going to try to decide is whether or not the trial judge made any legal mistakes while he was deciding whether this was a mental disorder or just a sleep disorder," explained Defence lawyer Frank Addorio.

On Thursday, Crown counsel Kimberley Crosbie argued that Luedecke posed a clear danger because he suffers from a genetic condition, and would be likely to re-offend if certain conditions trigger another episode.