The minute that Jade McCrossen-Nethercott woke from a deep sleep on a friend’s sofa, a sickening sense of shock and confusion swept over her.
The last thing she could remember was crashing out, exhausted, in the early hours — fully-clothed under a blanket — while a small house party birthday celebration carried on around her.
So she couldn’t understand how she’d woken half-naked. Her trousers and underwear had been removed; the bra under her long-sleeved top undone. Her beaded necklace was broken.
Jade McCrossen-Nethercott, (pictured) who was the alleged victim of a ‘sexsomia’ case has featured in a recent BBC documentary about her case
She felt absolutely certain she’d been violated but had no memory of it.
The living room, which a few hours earlier was hosting a group of happy, young millennials chatting, drinking and listening to music, was now empty apart from a man lying on the other end of the sofa.
‘I was startled and confused. The only other person in the room was him, so I automatically assumed he must have done something to me,’ recalls Jade of that night in 2017.
‘So I tried to question him and asked: “What happened?” a bit aggressively. He looked surprised and replied: “Oh, I thought you were awake,” and then he ran from the property, leaving the front door open.
‘That was the last I ever saw of him.’ Jade, then 24, dressed and fled the South London property in tears. Sobbing hysterically, she phoned her best friend who called the police. A physical examination subsequently confirmed sex had taken place.
Forensic tests linked DNA to the man she’d woken to see on the sofa. Following his arrest, he made no comment. He was later charged with rape, which he denied.
Back then, Jade, a photography graduate, had absolute faith in the criminal justice system despite the woefully low conviction rates for alleged rape offences.
The then 24-year-old contacted the police and a man was charged with rape. She is now suing the CPS after the service apologised to her for dropping the case, based on the opinions of two sleep experts who had never met her
Today, she is older, wiser and more cynical, but certainly not broken. Indeed, she is determined to hold that ‘broken’ system — which she claims utterly failed her — to account after the Crown Prosecution Service dropped charges just two weeks before the rape trial was due to start in 2020.
Last week it was revealed that Jade, who has waived her right to anonymity, is suing the CPS for damages after the service apologised to her for dropping the case, based on the opinions of two sleep experts who had never met her, let alone examined her.
Their reports suggested that, on the night of the alleged incident, Jade may have been suffering from a very rare sleep disorder called sexsomnia, which causes sufferers to engage in sexual activity while asleep.
In recent years it has sometimes been used as a defence by lawyers for those accused of criminal sexual offences, but this is believed to be the first time it has ever been used to throw doubt on the testimony of an alleged victim.
As those with sexsomnia may appear to be conscious during such sexual activity, the CPS told Jade it would be difficult to secure a conviction if the defendant could successfully convince a jury that he had a reasonable belief she was consenting to sex.
I’ve wondered if I’d been given a date rape drug
And how had these sleep experts reached this opinion? During one of her police interviews, Jade had mentioned she was a very deep sleeper and had been known to sleepwalk on a couple of occasions in adolescence.
It was a blasé, throwaway comment which she believes was seized on by defence lawyers. A second sleep expert report, commissioned by prosecutors without her knowledge, also suggested sexsomnia was a possibility.
‘I was completely blindsided,’ recalls Jade, now 30. ‘I’d never even heard of sexsomnia and was completely thrown by it. I was shellshocked because it was such a baffling concept, but also angry and frustrated because it felt so wrong.
‘I believe I was raped and slept through the assault. I’ve wondered if I could have been given a date rape drug, but no blood tests were taken, so I will never know.
‘The CPS told me that they believed me and they thought a jury would believe me; however, a jury would also believe a sleep specialist, so it would be an acquittal anyway, and they didn’t want to put me through a trial.
‘I told them, “Put me through it, please” because I was ready. As much as I was terrified of being in a courtroom and giving evidence, I felt it was the right thing to do, so having that taken away felt like a kick in the teeth.’
The case was dismissed and the defendant formally acquitted, so the case can’t be re-opened.
But Jade felt so angry and let down that she decided to challenge the CPS’s decision by requesting a Victim’s Right to Review — despite the fact it would not lead to a new trial — and pored through all the evidence herself.
To support her case, she researched sexsomnia — which evidence suggests affects more men than women (around 75 per cent are male) — and underwent trials at the London Sleep Centre to try to prove she didn’t have it. ‘I felt I needed to challenge this, to make a stand. I wanted to understand sexsomnia and be properly assessed. In my opinion, there had never been a proper clinical assessment,’ says Jade. ‘I hadn’t even spoken to these experts directly, so that was my first step to quash it, to try to prove that I don’t have this.’
Today, I don’t carry shame or guilt with me
Consultant neuropsychiatrist Dr Irshaad Ebrahim, medical director of the London Sleep Centre, who appears in a documentary Jade has made about her case, told her that sexsomnia was ‘a type of sleepwalking behaviour’.
He added: ‘What we do know is that people who have sexsomnia tend to have a history of the sexual behaviour. It just doesn’t occur one night.
‘And the typical person with sexsomnia is a male who has a track record from his bed partners over a period of time, who will all report that “he gets me up half-way through the night and has vigorous sexual activity with me”. So, therefore, I’m very surprised that you [Jade] have been labelled as having sexsomnia.’
‘Your history is not typical of someone with sexsomnia,’ Dr Ebrahim added, telling her that her adolescent sleepwalking meant she fell into the bracket which 20-30 per cent fall into who have a history of nocturnal behaviours that they outgrow.
Jade says: ‘I’ve had two long-term relationships spanning 13 years, and I’ve never had anything like this. I don’t see how this can be one isolated incident that just so happens to be the time that somebody I would never have consented to have sex with had sex with me.’
CPS guidelines state that sexsomnia and sleepwalking defences should be ‘robustly challenged’ and following the review, a chief crown prosecutor, Malcolm McHaffie, found that Jade’s case should have gone to trial.
A CPS spokesman said: ‘Rape is a devastating offence and securing justice for a victim can, in a small way, help them to overcome the trauma. We have apologised unreservedly to the victim in this case. The expert evidence and defendant’s account should have been challenged and put before a jury.’
Jade never imagined when she left her family home in Cornwall for university in London aged 18 that her life would be derailed in such a traumatic manner.
‘Before this happened, I was a happy-go-lucky individual, with rose-tinted glasses, still probably quite naïve,’ she says. ‘I am no longer that person — this has affected every part of my life.’
As a child, Jade’s ability to fall asleep deeply anywhere was a bit of a family joke. Her father used to say you could hang Jade on a washing line and she’d instantly doze off.
Once, on holiday, her mother found it impossible to rouse her when a 3am fire alarm had woken everyone else in seconds. Aged 17, she’d broken her nose after falling during an episode of sleepwalking, but there had been no repeat in adulthood.
No friend, flatmate or bed partner had ever reported concerns about sleepwalking, sleep -talking or any other unconscious nocturnal activity.
The night of the alleged rape had started in high spirits in expectation of a good night ahead. Jade and her best friend met up to do their make-up before heading off to a bar for a party.
‘It was a fabulous night,’ recalls Jade, who after the bar closed at around 12.30am went back to a friend’s home with a few others to continue the celebrations.
Tipsy, but not drunk, there was a happy atmosphere. She’d felt safe among the group of people at the bar which included friends and people she trusted. Many there knew she had a boyfriend; no one propositioned her either in the bar or later at the property.
‘At around 2am I said I was quite tired and wanted to go to sleep. I was offered a bedroom which I politely declined and I said: ‘I’m happy to crash on the sofa.’ So I fell asleep on the sofa pretty much instantly,’ says Jade.
‘When I woke, I did immediately feel as if I had been penetrated. I felt as if something had happened to my body that it wasn’t prepared for. It was an unpleasant reality.’
The two male police officers who visited her in the hours after the alleged attack to take her statement were, she says, polite and sympathetic and she felt supported by the female officers who dealt with her case at the Met’s Sexual Referral Unit.
Nevertheless, she found the process of reliving the night highly distressing. ‘The first 18 months were horrendous, I was in a dark place as I tried to come to terms with what had happened,’ she says.
‘I was using alcohol as a coping mechanism, I was on numerous anti-anxiety medications. Despite the support of my friends and family, I was really struggling.
‘Today, I don’t carry shame or guilt with me. I know it wasn’t my fault, but at the time you do have that feeling of self-blame. You think: “What could I have done differently?” or: “Why didn’t I go home after the bar closed?” But we shouldn’t have to live our lives being hypervigilant at all times.’
Jade, introduced to BBC journalist and producer Emma Ailes through Victims’ Commissioner Claire Waxman, was already making a documentary charting her journey through the criminal justice system when the trial suddenly collapsed.
‘Up until that point everything had been straightforward, then I was thrown into this madness,’ she says. ‘I felt these blasé, throwaway comments I’d made to the police about being a deep sleeper were blown up into something quite ridiculous.
‘At the very least these experts’ opinions should have been challenged in court because I believe all the other evidence was strong enough to secure a conviction.
‘If it had gone to trial and a jury had found him not guilty, I could have lived with that because I would have felt I’d done everything I could to have all the evidence examined.
‘My logical brain was telling me I didn’t and don’t have this condition, but this whole experience made me doubt myself and I can never forgive the CPS for that.
‘I just thought it was a concerning precedent that the CPS was setting. Yes, this may be the first case of its kind, but will defence solicitors try using this again?’
If Jade wins damages in her case against the CPS, she plans to channel that money into campaigning to raise awareness and help other victims.
This summer Jade held a ceremonial bonfire in her garden, and burned some of the clothes she’d been wearing the night of the alleged attack which carried traces of DNA.
‘This whole experience has opened my eyes to the wider issues that women and girls face.
‘It has affected every part of my life, but on the positive side, it has shown me I can be vulnerable but also resilient and strong.
‘My experience with the CPS caused me to lose faith, but it also sparked an energy to speak out and fight for change.’
- Sexsomnia: Case Closed? is on BBC iPlayer.