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Incapacitation

Incapacitation means being in a state where a person lacks the capacity to appreciate the fact that the situation is sexual, or cannot appreciate (rationally and reasonably) the nature and/or extent of the situation.  Incapacity can be found based on someone’s physical or mental status, based on developmental disability, or based on alcohol or drug use.  A person who knows or should reasonably have known that another person is incapacitated may not engage in sexual activity with that person.  A person’s state of incapacity is a subjective determination that is based on all of the facts available because persons reach incapacitation at different points and as a result of different stimuli.   

Incapacity can result from mental disability, involuntary physical restraint, or from the ingestion of substances, including “date-rape” drugs.  Administering any substance to another person, without their knowledge, for the purpose of inducing incapacity is a violation of the Sexual Misconduct Policy.   

Use of alcohol or other drugs does not, in and of itself, negate a person’s ability to give consent.  Alcohol-related incapacity results from a level of alcohol ingestion that is more severe than being under the influence, impairment, intoxication, inebriation, or drunkenness.  Common and obvious warning signs of possible incapacitation include consistently slurred or incomprehensible speech, unsteady gait, vomiting, or incontinence.  A person who is incapacitated may not be able to understand some or all of the following questions: “Do you know where you are?” “Do you know how you got here?” “Do you know what is happening?”  A person who is not incapacitated at the beginning of sexual activity, may, by virtue of alcohol or drug ingestion prior to or during the activity, reach a state of incapacitation as the activity continues and progresses.  Persons who are sleeping or completely passed out are incapacitated.   

Factors that can influence a person’s state include body composition; tolerance for alcohol and other drugs; amount and type of alcohol or other drugs consumed, and the mixture taken; amount of food intake prior to consumption; genetics; and propensity for blacking out.  A memory lapse regarding an incident is not, in itself, conclusive evidence of incapacitation.  Alcohol-induced memory lapses, sometimes called “blackouts,” are common.  Such memory lapses, or blackouts, do not involve a loss of consciousness.  An individual who is unable to form long-term memories of the incident has experienced a memory lapse; that individual may have been able to walk and talk and consent to sexual activity at the time of the incident.

When there is a determination of incapacitation, two additional questions are relevant: First, did the person initiating sexual activity know that the other party was incapacitated?  If the answer to the first question is “No,” ask: Should a sober, reasonable person in the same situation have known that the other party was incapacitated?  If the answer to either question is “Yes,” consent was absent and the conduct is likely a violation of the Sexual Misconduct Policy.