Does mistake as to consent constitute a defense to rape of an unconscious person?
California, United States of America
The following excerpt is from People v. Chavez, F061361 (Cal. App. 2012):
As a result, mistake as to consent is not a defense to rape of an unconscious person. (Dancy, supra, 102 Cal.App.4th at pp. 34-36.) An unconscious or sleeping victim "not only lacks the capacity to give legal consent, he or she cannot possibly give actual consent." (People v. Giardino (2000) 82 Cal.App.4th 454, 461, fn. 4.)
Dancy further explained that a woman cannot give advance consent to unconscious sexual activity.
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