What is the test for having sex with an unconscious complainant?
Yukon, Canada
The following excerpt is from R. v. Kinney, 2012 YKTC 51 (CanLII):
After Her Majesty the Queen v. J.A., [2010] S.C.C.A. 147, it is quite clear that even if consent has been obtained, it does not extend to a time when the complainant is unconscious and thus incapable of consenting. In this case, I find that even in the somewhat unlikely, but certainly possible, event that the complainant initially consented, or indeed was capable of consenting it is, in my view, beyond doubt that she eventually passed out, and that while she lay comatose the accused began to have sex with her. She could not consent while unconscious, and did not consent once awake.
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