Absolutely! But much like protocols (strict in what you emit, liberal in what you accept), reality is complicated and not conforming to a desired standard.

How so? What’s complicated about determining whether someone is conscious before having sex?

I'm not sure if that's the correct way to call it, but I've seen (and acted myself) "half-asleep" state many times. Apparently, I was able to answer even moderately complex questions (mostly things like "where are the car keys" or "which food did you give to our cat yesterday") and looked quite awake, yet I have absolutely no recollection of it happening. I also sometimes give answers or say things I wouldn't say normally, ie. two days ago in such a situation I apparently asked my wife why did she wrap herself with tinfoil from head to toe (obviously, this was in my dream, but I said it out loud). We have a good laugh out of this from time to time.

So yeah, I can imagine myself giving a clear "yes" to something in that state despite being consciously unaware of the entire thing. I'm not sure if "approval" like that should count court - I'm just giving you an example of one possible complication for "determining whether someone is conscious", be it before sex or otherwise.