The trial court erred by failing to explain to the jury the meaning of “prevented from resisting.” After deliberating for several hours, the jury asked the court for the legal definition of “resisting.” Defense counsel asked for an instruction, but the court did not elaborate further, referring the jury to their original instructions. This was prejudicial error. The language of the statute was insufficient, and the jury was understandably having difficulty understanding the definition. The jury was entitled to have that concept explained, particularly after they requested clarification. The court should have instructed the jury that its task was to determine whether, as a result of her intoxication, the victim lacked the legal capacity to consent. There was evidence from which the jury could have concluded that the victim was capable of giving consent. Therefore, the court’s failure to properly instruct the jury concerning the elements could not be deemed to be harmless, and the convictions had to be reversed.’ In a prosecution for rape and oral copulation by intoxication, lack of consent was not an element of the offense. Therefore, the trial court did not err in failing to instruct the jury that they must find that element in order to find appellant guilty of the offense. That the victim consented to the act is only sufficient to establish a defense where the victim has the capacity to give actual consent. Penal Code section 261, subdivision (a)(3) proscribes sexual intercourse with a person who is not capable of giving legal consent because of intoxication. The issue is not whether the victim consented, but whether she was able to exercise the degree of judgment a person must have in order to give legally cognizable consent. It was error for the court to fail to give the jury an instruction, pursuant to CALJIC 10.67, that a defendant’s honest but unreasonable belief that the victim consented was a defense to rape. An honest and reasonable, but mistaken, belief that a sexual partner is not too intoxicated to give legal consent to sexual intercourse is a defense to rape by intoxication.