MEDICOLEGAL ISSUES


Criminal Culpability for
C O N T I N UU M A UD I O
I NT E R V I E W A V AI L A B L E
ONLINE
Acts Committed During a
Possible Episode of REM
Sleep Behavior Disorder
By Joseph S. Kass, MD, JD, FAAN; Rachel V. Rose, JD, MBA

ABSTRACT
Rapid eye movement (REM) sleep behavior disorder (RBD) may result in a
patient injuring a bed partner while acting out a dream. This article
examines the complexities associated with RBD as a criminal defense
strategy as well as the legal implications for physicians and their duty to
CITE AS:
CONTINUUM (MINNEAP MINN)
patients and their families to mitigate risks associated with possible injuries
2020;26(4 SLEEP NEUROLOGY): related to RBD.
1070–1074.

Address correspondence to CASE

Dr Joseph S. Kass, Baylor College Note: This case is loosely based on an actual case for which one of the
of Medicine, One Baylor Plaza
authors, Dr Joseph S. Kass, was a pretrial expert.
M-210, Houston, TX 77030,
kass@bcm.edu. A 63-year-old man called his adult son after shooting and killing his wife.
He claimed not to recall any of the events leading up to the shooting,
RELATIONSHIP DISCLOSURE:
Dr Kass serves as associate
indicating that he suddenly found himself holding his handgun with his
editor of medicolegal issues for dead wife in front of him. The son called 911, and the man was arrested and
Continuum, as an associate charged with murder in the first degree. The man had a history of rapid eye
editor for Continuum Audio, as a
neurology section editor of movement (REM) sleep behavior disorder and claimed that the killing
Ferri’s Clinical Advisor for occurred unintentionally because he was acting out a dream due to the
Elsevier, and as co-editor of REM sleep behavior disorder.
Neurology Secrets, Sixth Edition.
Dr Kass has received personal
compensation for CME lectures
from Pri-Med LLC and as a
principal investigator for clinical
DISCUSSION
trials for Alzheimer disease from This scenario raises three issues related to the use of rapid eye movement (REM)
Biogen, Eisai Co, Ltd, Eli Lily and sleep behavior disorder (RBD) as a defense in a criminal trial:
Company, the National
Institutes of Health, Novartis 1 Can a disorder such as RBD, which may result in a patient acting out a dream and harming
AG, and Roche Diagnostics.
the bed partner, serve as a defense in a criminal trial?
Ms Rose serves on the editorial
board of BC Advantage and 2 What duty does a physician treating a patient with RBD have to the patient and the patient’s
receives book royalties from the family to mitigate risk associated with RBD-related violence?
American Bar Association.
3 What are the legal implications of failing to counsel RBD patients adequately?
UNLABELED USE OF
PRODUCTS/INVESTIGATIONAL To answer these questions and to provide an appreciation of the complexities
USE DISCLOSURE:
associated with RBD as a criminal defense strategy require recognizing several
Dr Kass and Ms Rose report no
disclosures. fundamental differences between criminal law and civil law.

© 2020 American Academy

of Neurology.

1070 AUGUST 2020

Copyright © American Academy of Neurology. Unauthorized reproduction of this article is prohibited.

CRIMINAL LAW FUNDAMENTALS
In a civil case, such as medical malpractice or breach of contract case, an
aggrieved party, the plaintiff, brings suit against the alleged perpetrator, the
defendant. Any licensed attorney may bring suit on behalf of the plaintiff in a
civil case. In a criminal case, law enforcement authorities must first arrest the
suspect. In a felony case, either a grand jury or a judge convening a
preliminary hearing must then determine if probable cause supports indicting
the suspect for the alleged crimes. Once indicted, the defendant enjoys a
constitutional right to trial by jury. The government prosecutor works to
convince the jury of the defendant’s guilt, whereas the defendant’s attorney
attempts to raise reasonable doubt about the defendant’s guilt. Civil and
criminal law also require different evidentiary standards. To prevail in a civil
trial, the plaintiff must demonstrate to the trier of fact, either the jury or the
judge in a juryless trial, that the “preponderance of the evidence” supports the
plaintiff’s allegations of the alleged wrong. In certain types of civil cases, a
higher evidentiary standard, the “clear and convincing evidence” standard,
must be met. In a criminal case, the government must convince the jury that
all the elements of the criminal offense occurred “beyond a reasonable doubt.”
Criminal cases require not only proof that the defendant hurt the victim in a
specified way (eg, the defendant accused of first degree murder actually killed
the victim) but also that the defendant possessed the requisite guilty mental
state, known as mens rea, required to convict a defendant of a crime.1
For example, in most jurisdictions, first degree murder requires the killing of
another human to be deliberate and premeditated.2
The distinction between these standards is as follows:

u Preponderance of the evidence: “the greater weight of the evidence required in a

civil (noncriminal) lawsuit for the trier of fact (jury or judge without a jury) to decide in favor
of one side or the other. This preponderance is based on the more convincing evidence
and its probable truth or accuracy, and not on the amount of evidence.”3
u Clear and convincing evidence: the midlevel of proof—evidence that is highly and substantially
more likely to be true than untrue. This standard is used in civil cases,4 especially with
allegations of fraud and disputes over wills and when withdrawing life-sustaining treatment.
u Beyond a reasonable doubt: a criminal evidentiary standard enshrined in the Due Process
Clause of the Fourteenth Amendment to the US Constitution, which states that “[t]he evidence
upon which a jury is justified in returning a verdict of guilty must be sufficient to produce
a conviction of guilt, to the exclusion of all reasonable doubt.”5

REM SLEEP BEHAVIOR DISORDER AS A CRIMINAL DEFENSE

A defense attorney can raise any defense, as long as it is truthful. Before the
jury deliberates, the judge will provide the jury an instruction, which explains
the questions the jury must answer and the evidentiary standard the jury must
use in determining whether to convict or acquit the defendant. Ultimately, the
jury will determine if the government has proven its case beyond a reasonable
doubt. In deciding the outcome, the jury will deliberate about whether the
defendant’s evidence created reasonable doubt about the defendant’s guilt. In
addition to offering evidence that the defendant did not commit the alleged acts,
the defense counsel may present an affirmative defense, a defense in which the
defendant does not dispute that he or she committed the alleged wrongdoing
but offers evidence of exculpatory circumstances that either reduce or eliminate

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RBD AND CRIMINAL CULPABILITY

the defendant’s culpability. Self-defense, defense of others, the insanity

defense, and the defense of intoxication are all examples of commonly used
affirmative defenses.

Using REM Sleep Behavior Disorder as a Defense in a Criminal Trial

Can RBD, which results in a patient acting out a dream and potentially harming
the bed partner, serve as a defense in a criminal trial? In this hypothetical case,
the defendant could present an affirmative defense, claiming that, although he
did kill his wife, he did so during a violent episode occurring during sleep due to
RBD and, therefore, lacked the requisite mens rea, or guilty mind, during the
episode to be convicted of first degree murder. Of course, just because a
defendant experiences RBD does not mean that RBD caused the violence. The
defendant must convince the jury that an RBD episode occurred, which will
require evidence beyond just a diagnostic workup establishing the RBD diagnosis
to establish a successful affirmative defense.
Of the most commonly used affirmative defense, the defenses of insanity and
intoxication are the most analogous to the RBD defense. Depending on the
jurisdiction, the insanity defense requires proof that a mental disorder either
rendered the defendant incapable of understanding right from wrong or
prevented the defendant from controlling his or her actions and resisting violent
impulses. In some states, the insanity defense will allow defendants to avoid
prison but will still require that they be held in a psychiatric facility for treatment.
Similarly, the intoxication defense also relies on the theory that defendants
cannot meet the mens rea element of the crime because they did not understand
what they were doing. Involuntary intoxication can serve as an affirmative
defense under the theory that the intoxication prevents the defendant from
understanding right and wrong. Voluntary intoxication may also be a defense to
specific intent crimes, crimes where the government must prove that the
defendant intended to commit a bad act with the specific intent of causing a
specific outcome. The defense of voluntary intoxication allows the defendant to
argue that intoxication prevented the defendant from forming the intent
necessary to meet the elements of the crime.6
Demonstrating a lack of the requisite mens rea, or guilty mind, to create
“reasonable doubt” may be difficult in this defendant with RBD because the jury
would have to believe not only that the defendant had a legitimate diagnosis of
RBD, but also that the injurious actions were the result of RBD rather than
deliberate action with the requisite mens rea.

Legal Implications for Physicians for Failing to Adequately Treat and

Counsel Patients With REM Sleep Behavior Disorder
What duty does a physician treating a patient with RBD have both to the patient
and the patient’s family to mitigate risk associated with RBD-related violence,
and what are the legal implications of failing to counsel RBD patients adequately?
Most states have laws that either mandate or permit medical professionals to
disclose information about patients who may become violent. Rooted in the
seminal 1976 case, Tarasoff v. The Regents of the University of California, “duty to
warn” or “duty to protect” laws emerged to enable medical professionals to warn
patients and their family members of adverse side effects associated with
medications or of violent or harmful behavior that may be fundamental to the
condition itself.7 However, these Tarasoff-inspired duties are not operational in

1072 AUGUST 2020

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every state, so knowledge of local law is important prior to warning a bed partner
about the patient’s diagnosis without the patient’s permission.
A physician’s duty to patients with RBD and to the patients’ families is
analogous to the physician’s duty to warn patients with seizures not to drive for a
state-specific prescribed period of time.8 The physician should counsel patients
and family members about the potential for violence and the need to make
weapons inaccessible to sleeping patients who have RBD. Sleeping arrangements
should be modified to protect bed partners because violent dreams may cause
patients with RBD to punch or strangle their loved ones.9 In addition, because
people with Parkinson disease, dementia with Lewy bodies, and multiple system
atrophy are more likely to have RBD, they should be counseled specifically about
the concerns that arise should they exhibit signs of RBD.10

CONCLUSION
While not as widely recognized as other conditions associated with the insanity
defense in criminal cases, RBD may qualify as an affirmative defense to first
degree murder because RBD-related violence arises as a consequence of complex
involuntary sleep-related behaviors rather than due to criminal intent. The
defense counsel would call on a qualified medical expert witness, ideally a sleep
medicine specialist, to testify to the defendant’s RBD diagnosis, explaining the
lack of conscious awareness with RBD.11 The expert would have to explain the
association with RBD and violent, injurious behaviors. The prosecution could
offer its own expert witness to rebut the defense expert’s claims. However, even
with the RBD diagnosis firmly in place, the defendant may still find the jury
incredulous that RBD resulted in the bed partner’s murder. Additional testimony
about the relationship between the defendant and the bed partner as well as
about the defendant’s good character may help bolster the defense’s case.
In this case, the defendant’s RBD diagnosis was poorly substantiated, and the
defendant also had a history of arrests for domestic abuse. Therefore, he was not
successful in establishing an affirmative defense that RBD-related violent
behavior resulted in the defendant’s unintentional killing of the wife.
Physicians caring for patients with RBD should take care to inform patients
and family members about all aspects of RBD. The treating physician may be
required to testify in a criminal case, and the victim’s family may sue the
physician in a separate civil case for failure to warn about the violent
consequences of RBD. Although invoking RBD as an affirmative defense is less
common than other conditions associated with the insanity defense, a defendant
could be exonerated of a crime if the defense attorney convinces the jury that the
defendant’s action was an RBD-related behavior and the defendant, therefore,
lacked the requisite mens rea, or guilty mind, to commit a crime.

REFERENCES

1 Staples v United States, 511 US 600 (1994).
2 Farlex, Inc. Definition of first degree murder.
legal-dictionary.thefreedictionary.com/first
+degree+murder. Accessed June 10, 2020.
3 Law.com. Definition of preponderance of the
evidence. dictionary.law.com/Default.aspx?
selected=1586. Accessed June 10, 2020.
4 Colorado v New Mexico, 467 US 310 (1984).
5 Miles v United States (1880).

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RBD AND CRIMINAL CULPABILITY
6 Justia. Common criminal defenses. justia.com/
criminal/defenses/. Accessed June 10, 2020.
7 National Conference of State Legislatures.
Mental health professionals’ duty to warn.
ncsl.org/research/health/mental-health-
professionals-duty-to-warn.aspx. Accessed
June 10, 2020.
8 Kass JS, Rose RV. Driving and epilepsy: ethical,
legal, and health care policy challenges. Continuum
(Minneap Minn) 2019;25(2):537–542. doi:10.1212/
CON.0000000000000714.
1074
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9 Enriquez-Marulanda A, Quintana-Peña V,
Takeuchi Y, Quiñones J. Case report: rapid eye
movement sleep behavior disorder as the first
manifestation of multiple sclerosis. Int J MS
Care 2018;20(4):180–184. doi:10.7224/1537-
2073.2017-001.
10 Boeve BF. REM sleep behavior disorder I
Parkinson’s disease and dementia with Lewy
bodies. J Geriatr Psychiatry Neurol 2004;17(3):
146–157. doi:10.1177/0891988704267465.
11 Rose RV, Kass JS. Ethical challenges for the
medical expert witness. AMA J Ethics 2016;18(3):
201–208. doi:10.1001/journalofethics.2016.18.3.
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