context: We agree with the reasoning of the Eighth Circuit that "[a] reasonable jury may conclude that a person who is asleep when a sexual act begins is physically unable to decline participation in that act." If the victim testifies that she woke up while the sexual act was ongoing, this "provide[s] sufficient evidence for the jury to conclude that penetration occurred while she was asleep."
citation_a.signal: cf.
citation_a.identifier: 277 F.3d 963, 967-68
citation_a.parenthetical: holding that evidence was insufficient where the record was silent with respect to the hour-and-a-half period in which the sexual act occurred
citation_a.sentence: Id.; see also United States v. Smith, 606 F.3d 1270, 1281 (10th Cir.2010) (holding that evidence was sufficient where, inter alia, the victim “woke up to find [the defendant] on top of her and engaged in sex”); cf. United States v. Peters, 277 F.3d 963, 967-68 (7th Cir.2002) (holding that evidence was insufficient where the record was silent with respect to the hour-and-a-half period in which the sexual act occurred); United States v. Williams, 89 F.3d 165, 168 (4th Cir.1996) (holding that evidence was insufficient where the victim testified that she was awake and “communicated her desire not to have sexual intercourse” with the defendant).
citation_b.signal: see also
citation_b.identifier: 606 F.3d 1270, 1281
citation_b.parenthetical: holding that evidence was sufficient where, inter alia, the victim "woke up to find [the defendant] on top of her and engaged in sex"
citation_b.sentence: Id.; see also United States v. Smith, 606 F.3d 1270, 1281 (10th Cir.2010) (holding that evidence was sufficient where, inter alia, the victim “woke up to find [the defendant] on top of her and engaged in sex”); cf. United States v. Peters, 277 F.3d 963, 967-68 (7th Cir.2002) (holding that evidence was insufficient where the record was silent with respect to the hour-and-a-half period in which the sexual act occurred); United States v. Williams, 89 F.3d 165, 168 (4th Cir.1996) (holding that evidence was insufficient where the victim testified that she was awake and “communicated her desire not to have sexual intercourse” with the defendant).