Incapacitation (see also Consent)

Incapacitation is a mental or physical state in which individuals are unable to make rational, reasonable decisions because they lack the ability to understand the consequences of their actions.

Individuals cannot give consent to sexual activity if they can’t understand what is happening, or if they are disoriented, helpless, asleep, or unconscious for any reason. That applies even if it is because they voluntarily consumed alcohol or drugs.

Unless consent is “knowing,” it is not valid. Those engaging in sexual activity who know or should have known that the other party is incapacitated are engaging in sexual misconduct in violation of EP 1.204. The possession, use, distribution, and/or administration of any incapacitating substances is prohibited.

The fact that a responding party was intoxicated, and thus did not realize the reporting party was incapacitated, does not excuse sexual misconduct.