THE CALIFORNIA FOURTH DISTRICT COURT OF APPEAL HOLDS THERE IS A DEFENSE TO RAPING AN UNCONSCIOUS PERSON; SHE WAS CONSCIOUS
The California Fourth District Court of Appeal here reverses the defendant's conviction for rape of an unconscious person who was actually conscious at the time of the rape.
In this somewhat bizaare case, the defendant was hired to give the victim a massage. While the defendant was massaging the victim, he molested her in various ways: massaging her breasts and inserting his finger in her vagina. She was fully awake and conscious. She just thought this was part of the massage. I'm not kidding.
No, really, I'm not kidding.
When the defendant began to orally copulate her, she finally complained and he stopped.
Okay, I've finally got the idea that something isn't quite right with my shiatzu.
The defendant was convicted of rape by foreign object on an unconscious person (Penal Code sec. 289(d)(3)) and oral copulation on an unconscious person (Penal Code sec. 288a(f)(3)). Now, why they ever charged the defendant with raping a clearly not unsconscious person, well, I'll never know.
There's an extended discussion here about fraud in fact versus fraud in the inducement, but the bottom line is that the victim here was not unconscious, so these convictions can't stand.
People v. Stuedemann; 2007 DJ DAR 15755; DJ, 10/16/07; C/A 4th
