Judge unsure whether consent obtained before victim passes out counts as true consent

A JUDGE has questioned whether a man who had sex with a drunken woman after she passed out should be "marked for the rest of his days" as a rapist.

AdelaideNow reports South Australian District Court Judge David Smith today said he was "troubled" by the case of Matthew James Sloan because his crime might be a "technical rape". "Rape is a horrible offence ... I suggest that this is a technical rape," he said.

"This is not a situation where an offender perpetrated a sex act on an unconscious victim which she would not have consented to, had she been conscious. "To mark this man with the grave offence of rape for the rest of his days will stop him travelling to some countries and prevent him getting jobs."

Sloan, 29, of Highbury, pleaded guilty to raping a woman in the city's east parklands in June 2008. The court has previously heard he met his victim at the PJ O'Brien's pub, on East Tce, and suggested they have sex across the road.

She agreed and the two began to have sex, but she fell asleep during foreplay - which Sloan continued despite her being unconscious. Both were drunk at the time, with the woman being "heavily intoxicated".

Sloan was due to be sentenced today - prosecutors had asked he receive at least a suspended jail term for his crime. Judge Smith, however, said that might not be an appropriate penalty.

"There is an inference that she might have consented (to more sex) had she been awake," he said. "The issue I have to resolve is whether I should even impose a suspended sentence here, that's my problem." He declined to pass sentence, saying he needed more time to consider his ruling. "I'm troubled by this," he said. "I've got you to consider, Mr Sloan, but also the victim and the public's perception." He remanded Sloan on continuing bail until next week.