FAQs on Incapacitation and Consent
A mental state in which an individual cannot make rational decisions because they lack the capacity to give knowing consent (e.g., to understand the who, what, where, why and how of their sexual interaction). Such incapacitation may be caused by alcohol or other drug use, sleep or unconsciousness. Intoxication is not equivalent to incapacitation.
The following questions provide additional descriptions of what it means to be incapacitated and how that relates to consent.
What is the difference between incapacitation and intoxication?
Intoxication happens when someone drinks alcohol, uses drugs, or takes certain prescription medications. The individual may feel lightheaded or dizzy, nauseated, tired, euphoric, etc. Incapacitation is a step beyond being drunk, high, or otherwise under the influence of a drug. Incapacitation means a person is not able to make fully informed judgments, appreciate the nature of what is happening, or be aware of consequences.
A person may be incapacitated when they are unconscious or asleep (even when they have not had any alcohol or drugs) or due to an intellectual disability.
What are signs that someone is incapacitated?
Signs that someone is incapacitated or approaching incapacitation may include:
- slurred speech or difficulty speaking coherently
- stumbling, falling, or unable to walk without assistance
- confusion about what is happening and/or where they are
- inability to use basic motor skills, like eating, drinking, texting
- failure to recall simple facts, like what day it is, names of friends, current location
- urinating or defecating on themselves
- combativeness or emotional volatility
- sleeping or unconsciousness
How long does incapacitation last?
In the case of alcohol or drug induced incapacitation, it may last anywhere from several minutes to several hours. If someone is incapacitated because of an intellectual disability, it may be permanent.
Is there a way to determine whether someone is incapacitated?
Although everyone is different and incapacitation can manifest in a variety of ways, the person should be able to give coherent answers to questions like: Do you know where you are? Do you know how you got here? Do you know who is with you? Do you know what is happening?
These are merely examples of the types of things a person who is not incapacitated would be able to recognize; the questions do not constitute a definitive test. When in doubt about a person’s ability to answer questions like these or otherwise make decisions, forego any sexual activity with that person.
What does incapacitation have to do with consent?
A person who is incapacitated lacks the ability to make informed, rational judgments about whether to engage in sexual activity or not. They are incapable of recognizing what is going on around them and are not able to grasp the sexual nature or extent of the situation they are in. Someone who is incapacitated cannot give consent because they are incapable of appraising or controlling their own conduct and may be physically unable to communicate consent or their unwillingness to take part.
Can someone give consent if they are drunk?
Someone who is drunk, high, or stoned can give consent. If the person can understand the who, what, where, why, and how of their sexual interaction, they are capable of giving consent. They have the capacity to make decisions even if the decision they make in the moment is not the same one they would have made if they were sober.
What if both parties are intoxicated?
Anyone initiating sexual activity has a responsibility to obtain consent, through words or actions. Being drunk or high does not excuse someone from making sure they have consent before engaging in sexual activity. Someone’s own state of mind may affect their ability to interpret the other party’s words or behavior, but they are still accountable for their actions.