Appendix 3: Incapacitation
Incapacitation, for the purposes of this policy, is the inability, temporarily or permanently, to give consent because the individual is mentally and/or physically impaired, either voluntarily or involuntarily, or the individual is unconscious, asleep, or otherwise unaware that the sexual activity is occurring. Incapacitation means a person cannot understand the fact, nature, or extent of the sexual activity because they lack the physical and mental capacity to make informed, reasonable judgements about whether or not to engage in sexual activity.
When alcohol or other drugs are involved, incapacitation is a state of intoxication or impairment that is so severe that it interferes with a person’s capacity to make informed and knowing decisions. Alcohol and other drugs impact each individual differently and determining whether an individual is incapacitated requires an individualized determination. The university does not expect students or employees to be medical experts in assessing incapacitation. Individuals should look for the common and obvious warning signs that show that a person may be incapacitated or approaching incapacitation. A person’s level of intoxication is not always demonstrated by objective signs; however, some signs that a person may be incapacitated include clumsiness, difficulty walking, poor judgment, difficulty concentrating, slurred speech, vomiting, combativeness, emotional volatility, or unconsciousness.
Another effect of excessive alcohol consumption can be memory impairment or an inability to recall entire or partial events (sometimes referred to as “black-out” or “brown-out”). A person may experience this symptom while appearing to be functioning “normally,” including communicating through actions or words that can reasonably and objectively be interpreted as communicating consent to engage in sexual conduct. Total or partial loss of memory alone, may not be sufficient, without additional evidence, to prove that a person was incapacitated under this Policy. Whether sexual contact under these circumstances constitutes prohibited conduct depends on the presence or absence of the outwardly observable factors indicating that a person is incapacitated, as described above.
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. It is especially important, therefore, that anyone engaging in sexual activity is aware of both their own and the other person’s level of intoxication and capacity to give consent.
In evaluating consent in cases of reported incapacitation, the university asks two questions:
- Did the Respondent know that the Complainant was incapacitated? and if not,
- Would a sober, reasonable person in a similar set of circumstances as the Respondent have known that the Complainant was incapacitated?
If the answer to either of these questions is “yes,” the conduct is likely a violation of this policy based on the inability to give consent. It is important to remember that 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 activity. Even where there is insufficient evidence to establish incapacitation, a Complainant’s level of impairment may still be a relevant factor in establishing whether consent was sought and freely given.
A Respondent’s voluntary intoxication is not a defense for any behavior that violates this policy.