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Name: People v. Dancy
Case #: H021990
Court: CA Court of Appeal
District 6 DCA
Opinion Date: 09/13/2002
Subsequent History: none

The court was not required to instruct on consent for a charge of rape of an unconscious person (Pen. Code, sec. 261, subd. (a)(4)). The victim and the defendant had lived together in the past. She frequently awoke in the morning to find defendant having sex with her, and this was acceptable to her. There is no defense of “advance consent” to the crime of rape of an unconscious person. A decision to engage in sex is necessarily an ad hoc decision made at a particular time with respect to a particular act. Even if a woman has expressly or impliedly indicates in advance that she is willing to engage in unconscious sex, a man who thereafter has sex with her while she is unconscious has deprived her of the opportunity to indicate her lack of consent. “It follows that a man who intentionally engages in sexual intercourse with a woman he knows to be unconscious harbors a ‘wrongful intent’ regardless of whether he believes that she has (or she actually has) consented in advance to the act.”