Jade McCrossen-Nethercott: I was raped but the case was dropped over claims I had rare disorder sexsomnia

WARNING: CONFRONTING CONTENT

A few weeks ago, Jade McCrossen-Nethercott received a payment of £35,000 (AUD$68,000) into her bank account.

A substantial sum of money – but it was what it signified, rather than its monetary value, that meant most to her. “I cried when it came through,” says Jade, now 32.

“I sat on my sofa looking at the balance on my banking app, sobbing. My partner thought something must be wrong, but I told him no, they were happy tears.

“I said: ‘finally I have proof they listened to me and have taken my complaint seriously’.”

In an extremely rare admission of fault, the payment had been awarded as compensation from the Crown Prosecution Service (CPS).

Jade had contacted the police after she was allegedly raped in her sleep by an acquaintance at a small house party.

For three years, she worked with officers to build a case and bring charges – an often agonising and deeply intrusive process.

But just 13 days before her alleged attacker was due to stand trial, lawyers from the CPS informed her that her case had been dropped because two sleep experts said it was possible she had had an episode of sexsomnia – a medically recognised, but rare, sleep disorder which can cause a person to engage in sexual acts in their sleep while appearing to be awake and consenting.

Wrongly, the case was closed immediately and the man acquitted.

It was devastating for Jade.

Indeed, she says now: “The trauma inflicted by the CPS was far worse than the incident itself.

“My voice was dismissed and the decision to drop my case was made based on completely unfounded claims.”

Kate Ellis, the joint litigation lead at the Centre for Women’s Justice, who represented Jade, said claims from victims against the CPS were “difficult legally”, with payouts “extremely rare’.

“This is the first case of which I’m aware in which a rape victim has been awarded compensation by the CPS in relation to a decision that’s been taken to discontinue their case before trial,” she said.

“It’s a testament to how severe the failing was on the part of the CPS that we have been able to bring this claim.”

Indeed, it took a profound toll on Jade, who became suicidal, coming close to throwing herself off London Bridge one night before seeking help at St Thomas’s Hospital, where she received psychiatric support.

She also suffered hallucinations — thinking she saw the defendant on train platforms or in crowds — and panic attacks so crippling she struggled to sleep, leaving her unable to work for six months.

In an effort to numb the pain, Jade developed unhealthy coping mechanisms.

She mixed diazepam prescribed by her GP with other sedatives and alcohol, pouring gin into tonic water bottles to hide the extent of her drinking from loved ones.

“Living with the knowledge that someone could do such a terrible thing to me without any legal consequences, and then be free to do the same to others, just felt too much to bear,” she says.

Over the next few months, the distress and upset turned to fury, and Jade felt the need to fight back.

She explains: “The suggestion that I might have been responsible for what happened because of this condition, sexsomnia, which I’d never heard of nor been tested for, felt like the most brutal form of victim-blaming.”

Rape cases are notoriously difficult to bring to court.

In England and Wales, a mere 5 per cent of those accused of rape are ever charged and just 1 per cent are convicted of the crime in a court of law.

According to the charity Rape Crisis, five out of six women affected don’t bother involving the police as a result.

Historically, those victims who did appear in court have faced gruelling cross-examination, being told they were “asking” to be sexually assaulted on account of wearing short skirts or drinking “too much” alcohol.

Jade was concerned that her case would set a dangerous precedent: the sexsomnia defence could be used against more victims.

She decided she had to prevent that by pursuing a case against the CPS.

It was in March 2017 that Jade, then 24, joined a group of friends in a South London bar.

Over the course of around six hours Jade drank two gin and tonics and half a bottle of Prosecco before some of them went back to the defendant’s flat.

He poured her a glass of red wine, which Jade recalls tasted “salty” – a fact she put down to it being cheap, but now believes the drink may have been spiked with the date rape drug GHB, something a sleep expert has since confirmed is possible.

When Jade became sleepy at around 1am, her alleged attacker offered her his bedroom.

She declined, concerned that might “give the wrong signals”, saying she was happy to “nestle down” on the sofa with a blanket over her, as the rest of the group continued to listen to music and chat around her.

She has no memory of what happened between then and around 5am when she woke.

“As I opened my eyes, I had this horrible feeling of having been violated, uncomfortable, sore, as if something had penetrated me, but I had no idea what,” recalls Jade, who has recounted these events so often since that she now feels able to do so without breaking down.

“My trousers were off. My pants were off. My bra was unfastened at the back. I had fingertip-size bruises on my arm. My favourite chunky necklace was broken.

“I sat bolt upright in a panic, looking around, and saw he was on the other side of the L-shaped sofa, asleep. I started screaming at him: ‘What the f*** has happened?’ and, when he stood up but didn’t respond, I pushed him into a corner of the room, desperate to get answers.

“He told me to ‘Shut up, be quiet’ because other people were asleep in the bedrooms, and then he said: ‘I thought you were awake’, before running out of the flat, leaving the door open.”

Numb with shock, Jade dressed and left shortly afterwards, calling her best friend on the way out.

“I was crying hysterically down the phone and, as soon as the words ‘I think I’ve been raped’ left my mouth, I vomited on the pavement,” recalls Jade.

“It was a visceral response, my body reacting to the shock of what had happened to me.

“My friend sent a taxi to pick me up. She was waiting outside her flat in her dressing gown when the driver dropped me there, and she bundled me inside.”

Although desperate to get out of her clothes and shower – “I felt so dirty and wanted to cleanse myself of him” – her friend advised her to contact the police first.

Two officers wearing body cameras arrived later that morning and took a statement from Jade before bagging up all her clothes and asking her to do a urine sample as well as vaginal and oral swabs.

They drove Jade and her friend across London to a sexual assault referral centre, where internal examinations and more swabs were done.

These confirmed the presence of semen, which was later proven to be from the alleged attacker.

Jade was given the morning after pill and vaccinated against Hepatitis B but had to wait an agonising few months for blood tests to confirm she had not contracted it or HIV.

While urine tests showed no evidence that she had been drugged, she later discovered that GHB can clear the system within hours and Jade had emptied her bladder twice before providing a sample.

She also handed over her phone, doing everything to the letter, in an effort to ensure justice was done.

When the accused was first interviewed by police, his only response was “no comment”.

After the swab results, he was interviewed again, this time stating sex had happened but claiming it was consensual.

“The most plausible explanation is that I was spiked, because how the hell did I not wake up?” says Jade.

“However, I came across reports of people not waking during acts of rape because of some mechanism being triggered in the brain to protect them. If I’d woken up, I’d probably have fought him off and, given that he was willing to rape someone unconscious, he could have hit me over the head with something or strangled me.”

Other than being asked to fill out a sleep questionnaire in June 2020, Jade had no contact with the CPS until she was called to Brixton police station in South London that October, to be told the case was being dropped.

“There had been no red flags or concerns about the defence’s case raised with me before then,” says Jade.

“They told me about the Victims’ Right to Review process, but also explained that it wouldn’t change the outcome of my case as he couldn’t be charged a second time. That was incredibly upsetting and frustrating.”

Like one in five people, Jade had sleep-walked as a child and occasionally sleep-talked as an adult, both precipitating factors in sexsomnia.

But none of her romantic partners, who were not interviewed, had ever noticed anything untoward about her sexual behaviour.

The experts’ assertions were based on interviews with the defendant who, despite Jade waking to find her necklace broken and bruising as if a hand had grabbed her upper arm, said that he “thought she was awake’.

Sexsomnia has been used as a defence by men accused of rape or sexual assault – in other words, they have claimed they were asleep during the act.

But Jade’s is the only known case in the UK where the victim has been said to have the condition.

Crazy though the suggestion seemed, Jade began to worry she might, in fact, be among the tiny proportion of people believed to suffer from sexsomnia – most of whom are men.

“As much as I knew deep down that I didn’t, the CPS had planted the seed – it was enough for them to close their case and for the defendant to walk free, for heaven’s sake,” she says.

“As someone who had always had faith in the justice system, I couldn’t help questioning myself.”

Jade’s GP, appalled by her experience, referred her for assessment at a sleep clinic at London’s Guy’s Hospital.

But after the initial consultation she was told it couldn’t be done on the NHS as there was no evidence of a sleep disorder.

Determined to get answers, in 2021 Jade paid £500 to see a sleep specialist privately and a further £1,500 for a polysomnography – a diagnostic tool that records brain waves and other vital signs while you sleep.

There was nothing in the findings to suggest she suffered from sexsomnia.

In 2022, the CPS admitted it had been wrong to drop Jade’s case. Emboldened by this, and with legal representation from the Centre for Women’s Justice, Jade sued the organisation, whose role is to prosecute cases investigated by the police.

In May this year, as compensation was announced, the CPS “apologised unreservedly” to her and said it was “committed to improving every aspect of how life-changing crimes like rape are dealt with”.

“It felt like a triumph,” says Jade.

“I knew the odds were stacked against me, as the CPS hardly ever admits fault, so the compensation was a groundbreaking admission.

“My partner and I celebrated with a bottle of Taittinger champagne, and a steak and chips home-cooked dinner.

“However, I’m still waiting for a letter I’ve been promised, outlining the lessons the CPS has learned from my case. This is the most important bit of all for me.

“I really need to see that changes have been implemented and that it will ensure no other victim has to go through what it put me through.

“First the rape, and then being told that, even in my sleep, I was somehow complicit in this heinous act, was the ultimate disempowerment.

“By forcing the CPS to accept and acknowledge fault in this way, I feel I’ve reclaimed some of that power, for myself and other victims.”

It is, says Jade, thanks to the support of her friends, parents and her partner of more than eight years that she has survived this ordeal.

And she feels it’s important to acknowledge the impact rape can have on intimacy: “About five days after it happened, I said to my partner “I think we need to have sex, because otherwise I’m scared I’m never going to want to do it again.”

“It was an emotional rollercoaster – at some points I was crying and we just hugged – but I’m glad we didn’t let it become a thing.

“There have been times when we’ve been having sex and I’ve had a flashback . . . to the morning after on that sofa, when I realised what had happened.”

While she mostly sleeps well, other than on the nights her partner is away, Jade no longer feels safe falling asleep alone on trains and planes.

But she has been able to quit the medication, only drinks in moderation and has a fulfilling job as a client care manager at the British Pregnancy Advisory Service, where she supports women making difficult decisions, including some who have experienced rape.

Had she not been so preoccupied with the legal battle, she believes she and her partner might have had a child, which is something she still hopes for.

Jade plans to use some of the money to fund an arts project, giving voice to victims of both rape and miscarriages of justice.

“As part of my assessment for compensation, I had to see a psychiatrist who determined what damage had been caused to me by the rape and my treatment at the hands of the CPS,” says Jade.

“They were able to quantify the financial impact – loss of earnings, cost of sleep assessments. It is, however, much harder to quantify, or compensate for, the emotional toll an ordeal like mine can take.”

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