Legally and ethically, consent must be affirmative, conscious, and voluntary. Because a sleeping person cannot provide consent, any sexual contact initiated while an individual is asleep is classified as sexual assault or rape.
Cases involving "gray-out" or "blackout" states—where a victim may appear awake but is legally incapacitated—saw increased scrutiny in the courts. rape in sleep 2021
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Throughout 2021, several jurisdictions revisited their definitions of "incapacitation" within sexual assault statutes. consent must be affirmative