How could the man who 'raped' me be cleared because he was sleepwalking?



A rape victim has hit out at the law after the man accused of attacking her was cleared because he was sleepwalking.



Jane McKenna, 33, was asleep at home when a friend's husband, who had been a guest at a barbecue, walked into the bedroom and started having sex with her.



Jason Jeal, a 37-year-old roofer with no medical history of sleepwalking, admitted sex had taken place. But he was cleared of rape after he insisted he had been asleep and had no idea what he was doing.



Victim: Jane McKenna has waives her anonymity but chose to pose like this because she does not want her face to become widely recognisable

Mrs McKenna, a middle-class mother of one whose husband holds a respectable full-time position, said the acquittal in June had left her feeling 'shocked and degraded'.



Last night, she waived her right to anonymity to highlight her concern that attackers will increasingly use the defence that they were asleep. She has already gained the support of MPs and campaigners who argue the sleepwalking defence 'defies common sense'.



Speaking at her smartly-decorated terraced home in Hampshire, she said: 'When I found out this man had been acquitted, I cried my heart out and my husband was devastated.



'It is something that has taken away my dignity. I am married and I believe that when you get married you stay faithful.



'Someone has come along and stolen something that is so important to me and it has made it difficult for me to be me, and it has made it difficult for me to have a proper relationship with my husband. I feel angry and hurt about that.



'I could find only a handful of cases similar to mine, but I want to know what the true figures are. I want to speak up for other women, I want women to come forward if this has happened to them, and I want a change in the law to stop this happening again.'



Mrs McKenna's ordeal took place in July last year after she and her husband invited Hayley Jeal, at the time a close friend of Mrs McKenna, and her husband to a barbecue.



During the evening, Mrs Jeal had an argument with her husband and went home. The McKennas then went to bed, leaving Mr Jeal asleep on the sofa downstairs.



Mrs McKenna fell asleep in the same room as her nine-year-old daughter after trying to settle her. Some time later Mrs McKenna, a deep sleeper, was woken by her daughter who had noticed Mr Jeal's body hovering above her mother, and was then horrified to realise the assault was taking place.



'I was sleeping on my front and I was very confused and thought, what is my husband doing?' she said. 'He was wearing my husband's jumper which he had borrowed.



'Then I saw his hand next to me, which was darker than my husband's. When I realised what was happening I threw him off in a panic and ran downstairs with my daughter and called the police straight away.



Jason Jeal was acquitted of rape because he was sleepwalking

'He had apparently walked upstairs, past the rooms where my husband and son were sleeping, and into my daughter's bedroom. It begs the awful question of what would have happened if I had not been in there with her.'



The trial at Portsmouth Crown Court heard Mr Jeal's DNA was found on Mrs McKenna.



Mr Jeal insisted during his trial that he had no recollection of the event. In his closing speeches, Mr Jeal's barrister suggested to the jury that he had been sleepwalking at the time of the attack, giving examples of things people had done while asleep, such as 'going to the toilet in the wardrobe'.



It was left to the jury to decide whether Mr Jeal was sleepwalking. The case has angered Labour MP Harry Cohen, who introduced a Private Members' Bill last month to highlight the issue.



He said: 'A rape is a rape and should be treated as such.



'This lady is a victim. At the least there should be some follow-up treatment for defendants. What they shouldn't be allowed to do is walk away scot-free.'



Mrs McKenna added: 'I feel as if I have got this for the rest of my life yet the person responsible hasn't been punished. To be subjected to the ordeal I went through in your own home was the last thing you expect when you invite someone round to a barbecue. People need to realise that this could happen to anyone.



'I can't fault the police as they have been absolutely fantastic as was my local sexual assault referral centre. I think the police were very disappointed at the outcome.



'These people should not just walk free - they should either be given a prison sentence or medical treatment, otherwise we could find more and more people finding this defence on the Internet and using it.'

Mr Jeal, a father of three who has since separated from his wife, yesterday maintained he did not know what he was doing at the time of the attack.



Speaking outside his home in Portsmouth, the former member of Portchester Cricket Club said: 'I did not use sleepwalking in my defence as I did not have any doctor's evidence or anything to back that up,' he said. 'With me, sleepwalking normally comes on through drink. People have told me I've done it before.'



So-called 'sexsomnia', in which sufferers carry out indecent acts in their sleep, is considered to be a form of automatism, a condition which has been used as a defence across criminal law.



Last year, RAF mechanic Kenneth Ecott, 26, was acquitted after he pleaded that he was sleepwalking when he had sex with a 15-year-old girl. Bournemouth Crown Court heard he had sexsomnia.



James Bilton, 22, was also cleared by a jury of three counts of rape in 2005. The 22-year-old victim said she woke to find Mr Bilton assaulting her, but he said he could not remember the incident at his flat in York.



Det Con Richard Rock, from Hampshire Police, said: 'I would like to see some sort of reverse burden of proof where the defendant has to come up with evidence to prove they have a history of sleepwalking, doctors' reports, and witnesses. Otherwise anyone can simply say "I was asleep".'



Solicitor General Vera Baird said she believed it would be difficult to change the law but added: 'What we need to do is to ensure that the Crown Prosecution Service have their eye on the ball at all times about this defence, and protest very strongly about it being raised without medical evidence.'



A Ministry of Justice spokesman said: 'Cases in which automatism is used as a defence are very rare, and there must be clear evidence to substantiate the claim that the conduct was involuntary and unintentional.



'It is important that when such incidents do arise, the focus is on ensuring the victim receives proper support and counselling and the person responsible receives the medical help they need.



'If there is a suggestion a person continues to pose a risk then the police can explore using existing powers to regulate or monitor their behaviour.'

What the law says



Under the Sexual Offences Act 2003, a defendant is guilty of rape if an attack is intentional.

In the case of Jason Jeal, the jury were left to decide whether they believed his argument that he could not remember what he did because he was apparently asleep.



Their not guilty verdict indicates that the jury agreed he was sleepwalking - or at least could not agree 'beyond reasonable doubt' that he was not.



As a result, he could not be held accountable for his actions and the attack was not intentional.



Victims of rape or alleged rape may choose to waive their right of anonymity if they wish.



