Warning: This story contains details related to the sexual assault of a child and may not be appropriate for all readers.
A not-guilty-by-way-of-mental disorder application was dismissed for a Nanaimo man allegedly caught rubbing his genitals against his 19-month-old daughter's buttocks.
The man, who can't be identified due to a publication ban, stood trial in B.C. Supreme Court in Nanaimo in January 2023, and Justice Joel Groves found him guilty of sexual assault, sexual interference of a person under the age of 16 years and possessing child pornography in April 2023. However, the man's defence counsel, Ben Lynskey, stated his client was known to sleep-walk and perform actions, including masturbation, when semi-directed and awakening, seemingly with little memory of what transpired.
Defence counsel requested an assessment regarding factors that could have lead to the man's actions, and the request was granted. Details were provided by the judge Thursday, Oct. 3 at the Nanaimo courthouse.
Based on assessment by Dr. Rakesh Lamba, person in charge of B.C. Mental Health and Substance Use Services, the man was diagnosed with chronic insomnia, with certain sleep arousal disorders, including the potential for sexsomnia, engaging in sexual acts while sleeping, with amnesia being a characteristic of diagnosis. Episodes can be triggered by insomnia and stress, which the judge said the man and his family were experiencing at the time.
While the doctor said the court could find the man not criminally responsible by way of mental disorder if the man had not remembered the incident, the judge noted that the accused provided details in a statement to police.
The man had stated that he was changing his daughter's diaper, and was using his cellphone light to see better and possibly hit the video-record button in the process.
As such, the judge found there was no basis for a declaration of the man not being criminally responsible by way of mental disorder. The court had previously thrown out a charge of making or publishing child pornography.
A date for sentencing is expected to be set on Nov. 18.
