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Name: People v. Stuedemann
Case #: D049020
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/21/2007

Appellant was not properly convicted of copulation of an unconscious person where the victim was capable of resistance to the conduct. The victim went to appellant for a massage. During the massage, appellant digitally penetrated and began to orally copulate her. When the victim told him to stop, he did so. A jury convicted appellant of rape by a foreign object and oral copulation on an unconscious person. The prosecution’s theory was that the victim was unconscious for purposes of the statute because of appellant’s fraud. (The statute defines unconscious to include where the victim is unaware of the nature of the act because the perpetrator fraudulently represented the sexual act served a professional purpose when it did not.) On appeal, appellant asserted that the evidence was insufficient to support his conviction for those offenses because the evidence showed that the victim was not unconscious within the meaning of those sections. The appellate court agreed and reversed. Although the victim consented to a massage, the result of which made her vulnerable to appellant’s acts overstepping the boundaries of her consent, the evidence showed that she was fully aware of the nature of appellant’s acts, and expressed her nonconsent and resistance. The victim was not rendered unconscious by appellant’s fraud. If there is a “statutory oversight” in the law, the Legislature should address it.