Consent may never be obtained through the use of force, coercion or intimidation or if the victim is mentally or physically disabled or incapacitated, including through the use of drugs or alcohol. A person can be "drunk" and also have the capacity to give consent.
To better understand and determine capacity, we use the NCHERM explanation. With regard to alcohol, there are multiple levels of effect, along a continuum:
- The lowest level is impairment, which occurs with the ingestion of any alcohol. A synonym for impairment is "under the influence."
- The next level in intoxication, also called drunkenness, is similar to the state's drunk driving limit.
- Incapacity is a higher level of alcohol consumption
- The highest level is overdose, or alcohol blood poisoning, which may lead to coma or death.
One who is physically incapacitated as a result of alcohol or other drug consumption (voluntary or involuntary), or who is unconscious, unaware, or otherwise physically helpless, is incapable of giving consent. One may not engage in sexual activity with another person who one knows or should reasonably know to be mentally or physically incapacitated.
Physical incapacities are sometimes quite overt, and other times more subtle. Incapacitation is a subjective determination that will be made after the incident, in light of all the facts available. Incapacitation is subjective because people reach incapacitation in different ways and as the result of different stimuli. They exhibit incapacity in different ways. Incapacity is dependent on many or all of the following factors:
- Body weight, height and size;
- Tolerance for alcohol and other drugs;
- Amount, pace and type of alcohol or other drugs consumed;
- Amount of food intake prior to consumption;
- Voluntariness of consumption;
- Level of consciousness.
None of these factors, except for the last, may constitute–in and of themselves–incapacitation. But, the process of finding someone responsible for a violation of the policy related to incapacity involves careful examination of all evidence, amounting to a sufficient or insufficient meeting of the preponderance of the evidence standard. This standard may be met with some combination of factors. For example, it might be met if someone is passing in and out of consciousness, and there is a high probability they could pass out again. Or, it might be met if someone is vomiting so violently and so often that they are simply in such bad shape that they cannot be said to have capacity.
Sokolow, Brett. The Typography of Sexual Misconduct Complaints. White Paper. National Center for Higher Education Risk Management, 2005.