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How Do You Know When Someone Is Too Impaired To Consent To Sex?

On Behalf of The Foley Law Firm | October 18, 2021

Consent often is a critical factor in determining when sexual activity is considered a crime. One factor that can affect whether a person can truly provide consent is if they’re impaired by alcohol and/or drugs. Of course, for college students, these things often go together.

Of course, if one person is unconscious or blacked-out, there’s no question that they can’t provide consent. However, things usually aren’t so clear. One person often can’t know precisely how drunk or high another person is.

Universities often provide clear guidelines

Some colleges and universities give students guidelines in their regulations to help them. For example, the University of Colorado Boulder defines “incapacitation” as “a state where a person cannot make a rational, reasonable decision because they lack the capacity to understand the who, what, when, where, why, or how of a sexual interaction.”

The university also notes, “The use of alcohol or drugs, in and of itself, does not render a person incapacitated, nor is it a defense against an allegation of sexual misconduct.” The school’s Sexual Misconduct, Intimate Partner Violence & Stalking Policy lists signs of intoxication to look for, including disorientation and loss of motor control, in addition to unconsciousness. It can also be helpful to ask yourself whether the other person can communicate clearly and seems to understand what’s going on around them.

The importance of “affirmative consent”

Another way to avoid confusion around whether someone is too impaired to have consensual sex is to “check in” with them throughout the proceedings to make sure they’re continuing to give their consent. That’s part of the “affirmative consent” requirement that many colleges and universities require – meaning that it’s not enough simply not to object.

If you or a loved one is facing sexual assault or other criminal charges in addition to university sanctions for a sexual encounter they believed was consensual, it’s crucial to ensure that you have experienced legal guidance throughout this situation.

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