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III. Consent & Incapacitation

(Back to Sexual Misconduct Protocol Table of Contents)

To consent means to outwardly express agreement for sexual activity. Consent can be a verbal "yes." It can also be demonstrated non-verbally with actions that clearly tell the other person that s/he is willingly and freely engaging in sexual contact. Consent cannot be inferred through silence or lack of resistance. Consent to one activity does not constitute consent to other sexual acts. Past sexual activity does not constitute consent for future acts. If at any time consent is uncertain, the initiating party should stop and obtain verbal consent. Consent can be withdrawn at any time.

A person who is incapacitated for purposes of this protocol is one who is not legally able to give consent because they are mentally or physically helpless and may not be aware sexual activity is occurring. In the state of Texas, consent can never be given by minors younger than 17 years of age unless permitted by law1

A person is mentally or physically incapacitated when they have consumed alcohol and/or drugs, legal or illegal, voluntarily or involuntarily, and are in a state where a reasonable person would believe that they are unable to make reasonable judgments or render self-care. Incapacitation includes, but is not limited to, being highly intoxicated, passed out, or asleep. When incapacitation occurs due to alcohol or drug use, indicators of incapacitation may include the following:

  • Slurred speech
  • Bloodshot or unfocused eyes
  • Unsteady gait; needing assistance to walk/stand
  • Vomiting
  • Outrageous or unusual behavior
  • Concern expressed by others about the individual
  • Expressed memory loss or disorientation

An individual may also be in a state known as a "blackout" where they are also incapacitated and while they may appear to give consent, they do not actually have conscious ability to do so. Therefore, it is of particular importance that any two people engaging in sexual activity know the other's level of intoxication prior to beginning sexual contact. The standard that shall be applied is whether or not a reasonable person would have known based on the facts and circumstances presented that the other party was incapacitated and therefore, not capable legally of consenting. As to the accused, being under the influence of alcohol or drugs is never a defense to this protocol and does not excuse sexual misconduct.

1For information regarding the criminal statutes governing sexual assault, consent and the age of consent in the State of Texas, visit Penal Code §22.01

Updated January 08, 2019