A “sexsomnia” defense requires investigators to document facts carefully before experts interpret them. This article explains how the 10th Circuit handled United States v. Crow, in which a defendant admitted sexual conduct with a minor but claimed he was asleep at the time. The case matters for law enforcement because detailed observations about movement, communication, planning, and awareness can help prosecutors test unusual explanations at trial.
United States v. Crow, 2026 WL 1392481 (10th Cir. 2026)
Things cops never expect to type in a report:
- Suspect claims he was sleepwalking.
- Suspect claims he was sleep-driving.
- Suspect claims he was sleep-eating.
- Suspect claims he was sleep-shopping online.
- Suspect claims he committed the offense while asleep.
The Fourth Amendment may be complicated, but at least it rarely requires officers to become amateur sleep specialists. Most criminal investigations involve familiar defenses. “It wasn’t me.” “I wasn’t there.” “You’ve got the wrong person.”
Occasionally, however, investigators encounter something far more unusual.
In United States v. Crow, Mitchel Crow admitted having sexual intercourse with a minor but claimed he had been asleep during the encounter. His expert witness testified the behavior was consistent with a condition known as sexsomnia, a sleep disorder in which a person may engage in sexual behavior while asleep and later have little or no memory of the event.
“Unusual explanations should not be dismissed simply because they sound unusual. At the same time, unusual explanations should not be accepted merely because an expert can attach a medical label to them.”
If you’re thinking that this sounds like something a suspect might invent after watching too many late-night medical documentaries, you’re probably not alone. But sexsomnia is a recognized sleep disorder, and courts occasionally encounter it as a defense in criminal cases.
The lesson for investigators is simple: Unusual explanations should not be dismissed simply because they sound unusual. At the same time, unusual explanations should not be accepted merely because an expert can attach a medical label to them.
In Crow, experts battled over whether the defendant’s conduct was actually consistent with sexsomnia. While one expert believed the reported behavior could fit the diagnosis, another pointed out that the alleged sleep-related conduct involved a remarkable number of coordinated steps, including navigating through the residence, entering a bedroom, partially undressing, engaging in sexual activity, dressing again, and leaving. The jury ultimately sided with the prosecution.
For investigators, the case highlights the importance of documenting behavior in detail. Diagnoses and labels often come later. Facts come first. How far did the suspect travel? What actions occurred? Were there conversations? Was the behavior organized, purposeful, or responsive to changing circumstances? Did witnesses observe conduct suggesting awareness or consciousness?
These details often become critical when experts begin debating whether conduct was intentional, accidental, impaired, or — as in this case — allegedly performed while asleep.
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The case also offers a reminder about expert testimony. Defense experts sometimes offer opinions at trial that go beyond what was disclosed before trial. When that happens, prosecutors may be permitted to offer responsive testimony from their own experts. Courts generally do not require the government to predict and disclose rebuttal opinions addressing testimony that was never disclosed by the defense in the first place.
And finally, a word of caution. If you ever find yourself writing the phrase, “suspect claims to have committed the offense while asleep,” resist the temptation to roll your eyes in the report. The report may someday be read by sleep specialists, psychologists, attorneys, judges, and jurors. Let them argue about whether the suspect was asleep. Your job is to document the facts.
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