The Ontario Court of Appeals is considering whether to classify a man a danger to society after he was acquitted of sex assault because of a sleep disorder.

Crown attorneys asked the court Thursday to consider imposing conditions on the man who suffers from sexsomnia -- a form of parasomnia, a sleeping disorder, which can prompt symptoms like sleep walking.

Prosecutor Kimberley Crosbie argued that classifying him as a danger and imposing conditions would help protect future victims.

Jan Luedecke, 33, was aquitted of sex assault in 2005, two years after attending a party and meeting a woman who later accused him of trying to rape her.

Both had been drinking and fell asleep on adjoining couches. The woman awoke to find Luedecke on top of her attempting to have sex. She pushed him off, and then called police.

Luedecke says he fell asleep 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 original trial, Dr. Colin Shapiro explained that Luedecke had experienced sexsomnia during the incident.

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

The court was also 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.

"The finding at trial, which is not challenged on appeal, was that it wasn't volitional," Frank Addario, Luedecke's defence lawyer, told reporters at Thursday's appeal. "It wasn't a deliberate choice that he made, that it was something that was done while he was unconscious."

His lawyers told the Court of Appeals Thursday there was no need to impose sanctions on their client.

Dr. Jeffrey Lipsitz with the Toronto sleep disorder centre told CTV Toronto that sexsomnia should be taken as seriously as any other sleep disorder.

"Frankly if this unfortunate news story was about someone getting up and eating during sleep we wouldn't be on the news talking about it," he said. "It's the fact that it relates to sex and another party who was unwillingly involved that really makes it worrisome."

Nonetheless, a counsellor with the Toronto Rape Crisis Centre said she worries some men could pretend to have sexsomnia as a defense for forcing themselves on women.

"My only fear is that you're going to have men around who are going to do the same thing and say, 'Oh, I was sleep walking,'" said Chris Leonard.

If the court rules in favour of Luedecke, it would set a precedent for allowing the condition to be used as a defence in cases of sexual violence.

Luedecke's case 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.

However, if the Court of Appeals declares sexsomniac as a mental illness, Ontario will be the first province in the country to do so.

Only three per cent of people suffer from sleep disorders. Only a fraction of that number would be prone to sexsomniac.

With a report from CTV Toronto's Chris Eby