I think the analogy to the surgeon and unconscious patient is a good one. It's not battery because it is assumed that the unconscious person would consent to treatment which would help him survive and a reasonable surgeon would operate.

In a marriage, or a relationship, if a party protests that he/she was asleep and didn't give consent, the right approach, IMHO, is for the jury to hear evidence on the prior state of the relationship and whether it was reasonable for the instigator to have assumed that consent was granted prior.

Any other construction leads to absurdities such that we all either know of people (or are guilty ourselves) of rape and are therefore sex offenders who need to do time in prison. It is a normal part of many relationships, and I question the real world implications that a "zero tolerance" policy that some are advocating would have on normal, reasonable people.

Why is it only sex that prior consent is invalid according to this thought? If I tell a neighbor that he is free to come in my house and get a drink from the fridge, does he have to ask me every time to not be guilty of trespass?