Looking for cases where consent/lack of are disputed where the issue of consent falls under 22.011(b)(3) "the actor knows the other person is unconscious," and 22011(b)(5) "the actor knows that the other person is unaware that the sexual assault is occuring."

A begins sexual activities with B while B is asleep, and B actively participates before realizing it is not C that initiated the activity and orders A to leave. A immediately ceases and departs, but claims that because of participation, there was a reasonable belief that B consented (22.06) and under 1.07 (a)(11), "consent" is "assent in fact, whether express or apparent" and no violation occured because activity ceased as soon as there was a clear "lack of consent."

In 1991, the Legislature deleted a subd. from the statute which addressed the question of culpability when "the actor knows that the other person submits or participates because of the erroneous belief that the actor is the other person's spouse" (in this case, 'significant other').

[This message was edited by Waco on 10-09-03 at .]

I have also been looking for cases turning on (b)(5), but have found none since 22.011 was enacted in 1983. That language is very similar to language in the old rape statute, 21.02, enacted in 1974. I have not tried an online search for old cases citing the old law, 21.02(b)(5), yet.

With the elimination of the language of former Sec. 21.02(b)(6), and elimination of the concept of fraud from 22.011 (b)(1), it appears to me that the conduct you describe no longer falls within the sexual assault statute, but rather is merely an assault under 22.01(a)(3). The former language assumed that the victim submitted or participated based on an erroneous belief, i.e. was a form of ineffective consent. That concept is contrary to what would be required to be proved for a prosecution under (b)(3) or (b)(5).

The theory you would like to use originated in the definition of rape as "the carnal knowledge of a woman without her consent, obtained by force, threats or fraud". Art. 633, Penal Code 1895. Art. 636 stated: "The 'fraud' must consist in the use of some stratagem by which the woman is induced to believe the offender is her husband." One of the few prosecutions for rape by fraud is found in Payne, 43 S.W. 515, upon retrial, 49 S.W. 604, and the conviction was reversed in that case because the court found no trick or artifice was actively used. Good luck. Both Payne and Mooney, 15 S.W.724 seem to say intercourse with someone who is asleep is assault by force. So maybe you should focus not so much on the mistaken belief but the lack of consciousness that preceded her request that the conduct stop.