If a person does not have the capacity to consent* then there is no consent.
If a person is unconscious, sleeping, sedated or incapacitated then that person does not have the capacity to consent thus there is no consent.
A person commits the crime of rape in the first degree if:
Such a person has sexual intercourse with another person who is incapacitated, incapable of consent or lacks the capacity to consent or by the use of forcible compulsion.*
Such a rapist must be held to account for each count of crimes against humanity perpetrated against the victim.
*https://www.rainn.org/articles/legal-role-consent
