As I said earlier,it would appear that Colorado law states that a sleeping person *cannot* "consent" to such activities.I'll wager that Colorado law also states that kids under a certain age...and perhaps people with certain psychiatric/medical conditions (e.g.,Down's Syndrome)..also *cannot* consent to sexual activities.
I think it's that simple.And I've often heard it said that ignorance of the law is no excuse so he can't use the "Your Honor,I didn't know it was illegal" defense.