A 33-year old man has been acquitted of sexual assault after a Toronto judge ruled he was asleep during the attack.

"This is indeed a rare case," said Justice Russell Otter in a Toronto Sun report. "His conduct was not voluntary."

"I believe the floodgates have been opened," the plaintiff said.

The ruling has outraged women's groups.

"This is new to me," sexual assault councilor Grissel Orehena told CTV News. "The system continues to criminalize the situation to ways where women continue to feel victimized, and not validated, not empowered."

The woman who cannot be named, met 33-year-old Jan Luedecke, a landscaper, at a party in July 2003, where both had been drinking.

She fell asleep on a couch and awoke to find Luedecke having sex with her. She pushed him off, and then called police.

Luedecke says he fell asleep on the same couch, and only woke up when he was thrown to the floor.

The accused told the court he only suspected he had sex when he went to the bathroom and discovered he was wearing a condom.

During the trial, a sleep expert testified Luedecke had a condition called parasomnia, a disorder which includes symptoms like sleep walking.

Dr. Colin Shapiro explained that during the incident Luedecke experienced sexsomnia, which is sexual behaviour during sleep.

Luedecke's sexsomnia was brought on by alcohol, genetics, and sleep deprivation, Shapiro said.

The court was told that Luedecke previously had sex while asleep with four girlfriends. He has since cut down on his drinking, and is taking medication to prevent a repeat of the incident.

But the woman now fears others like her could become victims unless a higher court overturns the ruling. She says she will continue to pursue the case.

"This isn't the end for me personally. I have the means to pursue this to the highest level. I believe this case has set a precedent."

This isn't the first time someone has been acquitted of a crime because the court accepted they were sleeping.

In 1999, George Campbell beat an attempted murder charge after slitting his girlfriend's throat, who said his behaviour was completely out of character.

"He wasn't normal during the entire altercation," girlfriend Arlene Robinson told CTV News. "When someone touches you, you could feel their body heat. He had no body heat. He seemed out of it, his arms were very limp."