[Wynton]

You might all be somewhat surprised how easily this kind of scenario can turn into a criminal conviction.

I represent a guy on appeal who was convicted of a relatively minor sexual abuse count.

The facts - in a nutshell - are that a 25 year old woman gets into the bed of a "family friend" who is 60 years old, supposedly just to rest for a couple of hours before meeting a friend later. There are other beds in the apartment, but she sees nothing wrong with it. She awakens to feeling this guy's hand on her stomach, she says. She pretends to be asleep - though with her eyes wide open - while he starts moving his hands around. For the next 30 minutes, he fondles her while she remains totally silent and still. She makes no effort to resist at all, supposedly because she was so stunned.

One of theories that led to his conviction was that his initial action of touching her stomach must have occurred while she was asleep - since he was doing that when she awoke. And because the law says that a person is incapable of consent when asleep, his conduct was deemed to be a form of sexual abuse.

I was hired after he was convicted, to handle the appeal. I think the case is nonsense and should be tossed, but there's a good chance the judges will not agree. I'm waiting for the decision right now.

Of course, a sleeping victim is different than a drunk victim; but in either case, an argument can be made that the victim was incapable of consent.