Incapacitation is when a person is unable to give consent due to the effects of alcohol or other drug use, or other factors such as sleep, illness, or disability.
Incapacitation is a state where a person cannot make a rational, reasonable decision because they lack the capacity to understand the who, what, when, where, why, or how of sexual activity. The use of alcohol or drugs, in and of itself, does not render a person incapacitated, nor is it a defense against an allegation of sexual misconduct.
Signs of incapacitation that would indicate a person is unable to consent:
- Disorientation, which could include a person losing track of where they are or who they are with, being confused or unable to remember basic information, or repeating themselves (lack of short-term memory)
- Loss of motor control, which means a person may not be able to do basic things like inserting a key in a lock, not be able to get something out of a wallet, not be able to dress or undress or walk on their own
- Unconsciousness, including being asleep or passed out
These factors are used to determine a person's capacity to consent to sexual activity.