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"L.O" photographed in Toronto on June 11, 2009. (JENNIFER ROBERTS/JENNIFER ROBERTS FOR THE GLOBE AND MAIL)
"L.O" photographed in Toronto on June 11, 2009. (JENNIFER ROBERTS/JENNIFER ROBERTS FOR THE GLOBE AND MAIL)

Justice

Man's sleep-sex defence a waking nightmare for the woman he attacked Add to ...

JUSTICE REPORTER

After being jolted out of sleep by a stranger raping her after a party, it was almost inconceivable to a 34-year-old Toronto woman that anything could ever match the horror.

Until two years after the July 3, 2003, attack, that is, when the man accused of the crime, Jan Luedecke, breezed out of court after convincing a judge that he had been asleep at the time and the attack was the result of a condition known as sexsomnia.

"I was teetering and couldn't breathe," recalled the victim, speaking out for the first time about the internationally publicized case. "I went running to the back door of the courtroom. I think that I was going into shock. I came out the door and I dropped to my knees and said: 'They just let a rapist go!' " The victim, known as L.O., said a solicitous court officer helped her up and told her: "Let's find your Crown attorney. This is not done yet. There is always legal recourse."

And there was. After a successful appeal by the Crown, Mr. Luedecke will appear before the Ontario Review Board by mid-July so that it can determine the most effective treatment for the 37-year-old landscaper.

L.O. - a vivacious, self-confident woman who works in the media - has attended every court date over the past six years. Thoughtful and self-analytical, she said she has grown impatient with the notion of victimhood, but privately worries about her devotion to the case. "Is it an obsession or a profession?" she said.

L.O. intends to attend the review board hearing, her presence serving as a reminder that Mr. Luedecke presents a threat to women every time he falls asleep. Having raised the issue of sexsomnia, she said, Mr. Luedecke has saddled himself forever with the diagnosis.

"I can't emphasize enough what a heavy burden the board has," she said. "This is someone who can't control his illness - by his own admission and by his doctor's admission."

The attack took place in a home in the Beaches area of Toronto after a large number of guests had left a summer croquet party. L.O. had dozed off on a sofa and awoke with Mr. Luedecke on top of her.

"Get away from me," she recalled yelling, as she pushed him off. "Who the hell are you?"

To her surprise, the assailant gave L.O. a strange look, and replied: "Jan."

L.O. ran out, then returned to retrieve her car keys from the coffee table. Near them, she saw her underwear: "Suddenly, it all registered. The word 'rape' hit my brain."

Mr. Luedecke's defence centred on a combination of stress, sleep deprivation, magic mushrooms and beer having triggered his sexsomnia. He declined to be interviewed for this article.

"When I was told that he'd come forth with this sleepwalking defence, my jaw hit the floor," L.O. recalled. "I couldn't even believe that it was a legal defence."

A defence sleep expert, Dr. Colin Shapiro, described sexsomnia as a sleep state precipitated by a combination of alcohol, genetics and sleep deprivation. The defence also adduced evidence that Mr. Luedecke had had sex with four previous girlfriends while asleep.

L.O. hit a low point after viewing a videotaped police statement in which Mr. Luedecke described commencing the assault by first kissing and fondling her. "It was like going backwards again," she said. "I may as well have been drugged. I was sleeping - how much more vulnerable can a person be?"

She was appalled when Mr. Luedecke apologized from the witness box. "I remember thinking: This is all about how it affected you and your life," she said. "That's not an apology. If you're going to apologize, make it to the person you are apologizing to."

On Nov. 30, 2005, Ontario Court Judge Russell Otter acquitted Mr. Luedecke on the basis that the attack had been involuntary.

"I remember the look on his face, like he had just been vindicated," L.O. said. "But you admitted it," she said. "Everybody in this building knows that you still did this."

L.O. praised the prosecutors in her case, Kim Motyl and Kim Crosbie, but said the system failed her. She worries that other sexual assault victims might see no point in reporting an attack to police.

The latter concern began to evaporate several weeks ago, when Ontario Court Judge Kathryn McKerlie struck a blow against the sexsomnia defence by criticizing Dr. Shapiro - who had testified for the defence at another sexsomnia trial - for venturing unwarranted opinions.

Still, the attack and Mr. Luedecke's acquittal were setbacks for L.O. She was apprehensive in party situations and ultra-cautious about her personal security. She got a dog and attended self-defence classes.

"I wanted to get home and inside before dark, because the night brought sleep and vulnerability," she said. "I would wake up for the longest time and look around the room. If there was a cup that seemed slightly moved, I would get up to check everything."

L.O. trolled the Internet, compulsively reading about her case. "Based on the blogs I read, there are people out there who think he should be acquitted," she said. "I've read comments that, 'Maybe she should learn not to get loaded and pass out.' Or, 'Maybe she was asking for it.' Somebody wrote that I was wearing a skirt. Well, was I supposed to be wearing jeans in 90-degree weather?"

Her preoccupation concerned her. "I look at everything that I've been through and I think: Where did the last six years just go? There is no closure yet. I'm still waiting for it. What does happen when it all comes to an end? What do I focus my life on now? Is there going to be another negative effect once it ends?"

Seeing Mr. Luedecke take responsibility for his actions and seek treatment would help considerably, she said. "If it were me, and I did something while I was in a state other than conscious awareness, I'd be mortified," she said.

"You don't want to make sure that you never do it again? You have to control the triggers, otherwise you are going to have another episode. But how do you monitor somebody every waking moment? How do you control his stress level, short of sedating him and putting him in a white padded room? It scares the life out of me that he will walk on the streets. He's a huge threat to society."

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