Incapacitation or Incapacitated

An individual who is Incapacitated is unable to give Consent to Sexual Contact. States of Incapacitation include sleep, unconsciousness, intermittent consciousness, or any other state where the individual is unaware that Sexual Contact is occurring. Incapacitation may also exist because of a mental or developmental disability that impairs the ability to Consent to Sexual Contact.

Alcohol or drug use is one of the prime causes of Incapacitation. Where alcohol or drug use is involved, Incapacitation is a state beyond intoxication, impairment in judgment or “drunkenness.” Because the impact of alcohol or other drugs varies from person to person, evaluating whether an individual is Incapacitated, and therefore unable to give Consent, requires an assessment of whether the consumption of alcohol or other drugs has rendered the individual physically helpless or substantially incapable of:

  • Making decisions about the potential consequences of Sexual Contact;
  • Appraising the nature of one’s own conduct;
  • Communicating Consent to Sexual Contact; or
  • Communicating unwillingness to engage in Sexual Contact.

Where an individual’s level of impairment does not rise to Incapacitation, it is still necessary to evaluate the impact of intoxication on Consent. In evaluating whether Consent was sought or given, the following factors may be relevant:

  • Intoxication may impact one’s ability to give Consent and may lead to Incapacitation (the inability to give Consent).
  • A person’s level of intoxication is not always demonstrated by objective signs; however, some signs of intoxication may include clumsiness, difficulty walking, poor judgment, difficulty concentrating, slurred speech, vomiting, combativeness, or emotional volatility.
  • An individual’s level of intoxication may change over a period of time based on a variety of subjective factors, including the amount of substance intake, speed of intake, body mass and metabolism.

No matter the level of an individual’s intoxication, if that individual has not affirmatively agreed to engage in Sexual Contact, there is no Consent.

Anyone engaging in Sexual Contact must be aware of both their own and the other person’s level of intoxication and capacity to give Consent. The use of alcohol or other drugs can lower inhibitions and create an atmosphere of confusion about whether Consent is effectively sought and freely given.  If there is any doubt as to the level or extent of one’s own or the other individual’s intoxication or Incapacitation, the safest course of action is to forgo or cease any Sexual Contact. A Responding Party’s intoxication is never an excuse for or a defense to committing Sexual or Gender-Based Harassment, Sexual Assault or Sexual Violence, or Interpersonal Violence, and it does not diminish one’s responsibility to obtain Consent.

 Learn more about Consent >>