Rape of an Unconscious Person


It is illegal to engage in sexual intercourse with an individual who is unable to give their consent, such as when they are unconscious from alcohol or drugs or from a medical condition or other reason

If an individual engages in sexual intercourse with an unconscious person, they may be charged with rape and/or additional sexual abuse offenses.

Ability/Inability to Give Consent:

  • An individual must be able to give consent in order to engage in consensual sexual conduct
  • Rape is the offense of engaging in sexual intercourse without the victim’s consent
  • Sexual assault occurs when an individual engages in any sexual conduct with a non-consenting victim
  • A person may be unable to give consent for a variety of reasons, including, but not limited to the following:
  • 1. Age – a person must be of legal age to engage in sexual conduct or they lack the legal capacity to give their consent
  • 2. Intoxication - A person may be intoxicated due to the effects of drugs or alcohol or other reason. (In some states the marital spouse is exempt from this restriction and rape in general).
  • 3. Mental incapacity – a mental, psychological, emotional or other condition may render a person incapable of giving consent
  • 4. Physical incapacity – a person may be physically helpless and therefore unable to give their consent
  • If a person is unconscious, they are incapable of giving their consent and if a perpetrator engages in sexual intercourse, rape will have occurred. If the perpetrator engages in any form of sexual conduct, sexual assault will have occurred.

Californias Rape Law

  • California Penal Code Sec. 261 details information about sexual conduct.
  • (a) Rape is an act of sexual intercourse accomplished with a person not the spouse of the perpetrator, under (any) of the following conditions:
  • 1. “Where a person is incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing the act.”
  • 2. “Where it is accomplished against a person’s will by means of:
  • Force, violence, duress, menace or fear of immediate and unlawful bodily injury on the person of another…”
  • 3. Where a person is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused.”
  • 4. Where a person is at the time unconscious of the nature of the act, and this is known to the accused. As used in this paragraph, “unconscious of the nature of the act” means incapable of resisting because the victim meets one of the following conditions:
  • A. Was asleep or unconscious
  • B. Was not aware, knowing, perceiving or cognizant that the act occurred



Courts do not look lightly upon those who take sexual advantage of persons who are unconscious and unable to knowingly give their consent. It is always wise to take caution: if the person does not knowingly and consciously give their permission, refrain entirely from sexual conduct.


Rape, Abuse and Incest National Network

California Penal Code, Rape

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Michael S. Berg
Attorney At Law