Incapacitation
Incapacitation is a state where an individual cannot consent to make an informed and rational decision to engage in sexual activity because the individual lacks conscious knowledge of the nature of the act (e.g., to understand the “who, what, where, when, why or how” of the sexual interaction) and/or is physically helpless. An individual is also considered incapacitated, and therefore unable to give consent, when asleep, unconscious, or otherwise unaware that sexual activity is occurring.
Incapacitation may result from the use of alcohol and/or other drugs. Consumption of alcohol or other drugs, inebriation or intoxication are insufficient to establish incapacitation. The impact of alcohol and drugs varies from person to person, and evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs impacts an individual’s:
- Decision making ability;
- Awareness of consequences;
- Ability to make informed judgments; or
- Capacity to appreciate the nature and circumstances of the act.
Evaluating incapacitation also requires an assessment of whether a Respondent knew or should have known that the Complainant was incapacitated when viewed from the position of a sober, reasonable person.
In general, sexual contact while under the influence of alcohol or other drugs poses a risk to all parties. Alcohol and drugs impair a person’s decision-making capacity, awareness of the consequences, and ability to make informed judgments. It is especially important, therefore, that anyone engaging in sexual activity be aware of the other person’s level of intoxication. If there is any doubt as to the level or extent of the other person’s intoxication or impairment, the prudent course of action is to forgo or cease any sexual contact or activity.
Signs of incapacitation may include:
- Slurred speech
- Bloodshot eyes
- Smell of alcohol on breath
- Clumsiness
- Inability to focus
- Confusion
- Shaky balance
- Stumbling or falling down
- Vomiting
- Poor judgment
- Difficulty concentrating
- Combativeness or emotional volatility
- Outrageous or unusual behavior
- Unconsciousness
Being intoxicated or impaired by drugs or alcohol is never an excuse for misconduct and does not diminish one’s responsibility to obtain consent.