Article 120(b) (sexual assault) and (d) (abusive sexual contact) prohibit the commission of a sexual touching upon another person under various circumstances, including when the accused:
commits a sexual act upon another person when the person knows or reasonably should know that the other person is asleep, unconscious, or otherwise unaware that the sexual act is occurring
Article 120(b)(2) (emphasis added), and when the accused:
commits a sexual act upon another person when the other person is incapable of consenting to the sexual act due to—
(A) impairment by any drug, intoxicant, or other similar substance, and that condition is known or reasonably should be known by the person; or
(B) a mental disease or defect, or physical disability, and that condition is known or reasonably should be known by the person;
Article 120(b)(3) (emphasis added).
In a recent unpublished decision in United States v. Mohead, No. 201400403 (N-M. Ct. Crim. App. Oct. 29, 2015) (link to slip op.), a three-judge panel of the NMCCA considers the difference between these two offenses in a case involving a victim who was asleep at the beginning of the encounter and awake (and resisting) at the end, for which the Government charged the appellant with both offenses in order to address his conduct both before and after the victim awoke. The CCA affirms the finding of guilt involving a sleeping person, but reverses the finding of guilt involving a person incapable of consenting, reasoning that:
[The victim’s] actions upon waking indicate she was then capable of consenting despite the earlier alcohol consumption. While trying to “reason with” the appellant, she articulated her clear understanding of what was happening, that she thought it was wrong, and that she did not consent. While his actions may have constituted a different sort of sexual assault, based on this record and these facts we are not convinced beyond a reasonable doubt of the appellant’s guilt for Specification 1 [sexual assault of a person incapable of consenting due to impairment by alcohol]. Thus we will set aside the finding and dismiss that specification.
Slip op. at 7.
The CCA’s opinion highlights that a person who manifests lack of consent (through physical resistance, verbal protest, or otherwise) is necessarily capable of consenting. A sexual touching of such a person may well be a sexual offense, but it is not one involving a person who is incapable of consenting.