August 21, 2017

Incapacitation due to sleep, unconsciousness, or intoxication (Student Misconduct)

Consent cannot be the product of incapacitation. A person who is incapacitated is not capable of giving valid, affirmative consent.

Incapacitation means a person cannot understand the fact, nature, or extent of the sexual activity. An incapacitated person lacks the physical and mental capacity to make informed, reasonable judgements about whether or not to engage in sexual activity. A person who is incapacitated may not be able to understand where they are, whom they are with, how they got there, or what is happening.

A person may be incapacitated by a temporary or permanent mental or physical condition, sleep, unconsciousness, or lack of awareness that the sexual act is taking place. Further, a person may be incapacitated as a result of consumption of alcohol or drugs. Incapacitation is a state beyond intoxication or “drunkenness.” Impairment must be significant enough to render a person unable to understand the fact, nature, or extent of the sexual activity. Mere consumption of alcohol or drugs does not necessarily render a person incapacitated. Alcohol and drugs affect individuals differently. Impairment levels vary and are the product of the nature of all substances involved, height, weight, tolerance, quantity and pattern of food and sleep, and drinking pattern.

In evaluating affirmative consent in cases involving incapacitation, the university considers the totality of available information in determining two issues:

(a) Incapacitation of the Reporting Party; AND
(b) Knowledge of the Respondent:

  1. Did the Respondent know the Reporting Party was incapacitated? Or
  2. Should the Respondent reasonably have known that the Reporting Party was incapacitated?

If both (a) and (b) are answered positively, affirmative consent was absent and the conduct a likely violation of this policy.