Incapacitation is defined as the inability, temporarily or permanently, to make a rational, reasonable decision. Incapacitated persons are considered incapable of giving consent because they lack the ability to appreciate that the situation is sexual (e.g. the who, what, when, where, why and how of the interaction.) Incapacitation can occur mentally or physically, from developmental disability, by alcohol or drug use, or blackout.

Incapacitation and Sexual Misconduct

An individual engaging in sexual activity with a person they know or reasonably should know to be incapacitated constitutes sexual misconduct.

The test for whether a person should know if another individual is incapacitated is whether a reasonable person in the same position knew or should have known of the reporting party's incapacitation.

A responding party cannot rebut an allegation of a policy violation merely by asserting that they were impaired, and therefore, did not know the other person was incapacitated. Alcohol, drugs, or other intoxicants do not negate or diminish the responsibility of an individual to obtain consent.

Indicators of Incapacitation

Indicators of incapacitation due to alcohol or drug use include, but are not limited to, the following:

  • Lack of control over physical movements
  • Difficulty walking, stumbling, falling down
  • Being unable to stand or walk without assistance
  • Slurred speech or inability to communicate clearly
  • Inability to focus or confusion about the circumstances
  • Vomiting
  • Urinating and/or defecting on oneself, while sleeping, or in a public place
  • Unconsciousness or periods of unconsciousness; blackouts.
  • An individual does not have the capacity to give consent, voluntarily or involuntarily, if they are under the age of consent in the jurisdiction in which the sexual activity occurred.