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EVAWI > Resources > Best Practices > FAQs > Consent
Q What happens when both parties are above the legal limit and unable to give consent. How is that handled legally?
Q Do individuals with severe cognitive disabilities fit in the legal category of those unable to give consent?
Q Can consent be implied for non verbal individuals? If so, how?
A What happens when both parties are above the legal limit and unable to give consent. How is that handled legally?

Being above the “legal limit” for alcohol consumption (to operate a vehicle) is irrelevant to the question of whether someone can consent to sexual acts. In most jurisdictions, the legal limit to drive a car is a blood alcohol content (BAC) of .08 or .10 percent. Someone with this level of alcohol consumption will typically be perfectly capable of consenting to sexual acts, unless there are other factors that are interacting with the alcohol to create incapacitation (e.g., prescription medications or other drugs).

When we are talking about drug or alcohol facilitated sexual assault, the threshold for a victim is incapacitation. This is not someone who is simply intoxicated, let alone “tipsy.” It is not a question of two people having sex after they’ve had a few drinks. Rather, someone who is incapacitated by alcohol or drugs is seen in the eyes of the law as being unable to consent to sexual acts because they cannot comprehend what is happening and they are unable to communicate their consent or resist unwanted acts. The threshold for incapacitation is high – far higher than the legal limit to drive a car.

Keep in mind that investigators and prosecutors must prove three legal elements for drug or alcohol facilitated sexual assault:

  1. Sexual penetration (no matter how slight)
  2. The victim was incapacitated to the point where she/he could not consent to sexual acts.
  3. The suspect knew or should have known the extent of the victim’s incapacitation.

There is no clear legal standard for establishing how severe the incapacitation must be to render an individual incapable of consent. This can only be established with evidence gathered during a thorough law enforcement investigation.

Moreover, it is not just a question of how much alcohol or drugs were consumed by a person. Most of us know that the same level of alcohol can affect people very differently. The effects depend on a wide range of factors, including the person’s size and body fat, what the person ate recently, what their tolerance level is, and (for women) where they are in their menstrual cycle. The same type of variation can also be seen among different people consuming the same quantity of a particular drug.

Determining whether a person is incapacitated will therefore depend not only on the amount of alcohol or drugs consumed – it will also include a host of other factors. Most important, it will depend on the person’s behavior. Investigators will need to gather information from the victim, suspect, witnesses, and other sources to determine whether the victim was able to walk, talk (essentially care for their own safety) or if the victim was throwing up, being carried, stumbling, etc.

To counter the charge, the defense will typically argue that the person was not incapacitated and therefore could – and did – consent to the sexual acts.

A Do individuals with severe cognitive disabilities fit in the legal category of those unable to give consent?

If there is any reason to question whether a person is capable of providing consent to sexual activity, the investigation of a suspected sexual assault will need to focus on documenting the victim’s capabilities as well as any limitations due to disabilities. Typically, this will be a severe cognitive disability such as intellectual disability (formerly called mental retardation). However, there are other examples of cognitive disabilities that impair a person’s ability to think and learn. These could result from brain injuries or neurodegenerative diseases like dementia. If they are severe enough, they could also prevent a person from being able to provide informed consent to sexual acts. There are also situations where victims have a severe mental illness that precludes their ability to provide informed consent to sexual acts.

Regardless of the specific cause, the criminal offense is based on the person’s inability to consent to sexual acts. Specifically, three legal elements must be established:

  1. The sexual acts committed by the suspect
  2. The victim’s lack of capacity to consent to sexual acts, due to a severe cognitive disability (or mental illness)
  3. The suspect’s knowledge of the victim’s severe cognitive disability (or mental illness)

Determining the severity of a victim’s cognitive disability (or mental illness) is no simple task, and we dedicate a significant portion of the OnLine Training Institute (OLTI) module Successfully Investigating Sexual Assault Against Victims with Disabilities to providing guidance in this area. It is worth noting, however, that these determinations are not made during the preliminary response, or even by law enforcement investigators or prosecutors alone. Such decisions should be made with the assistance of clinical experts, because they have ramifications for the individual far beyond the criminal justice process in this case.

A Can consent be implied for non verbal individuals? If so, how?

Some victims will be unable to effectively communicate consent for the same reason they are incapable of consenting to sexual acts in the first place – because of a severe cognitive disability or incapacitation as a result of drug or alcohol use. In these situations, the strategy for investigating and prosecuting the case will be the same as outlined above, in response to the first question.

On the other hand, some victims may be perfectly capable of consenting to sexual acts based on their cognitive abilities – but unable to communicate that consent because of a physical disability. This situation is very different in many important ways from the one described above. However, the logic of the investigation and prosecution will be fundamentally similar. When investigating a sexual assault offense based on the victim’s inability to consent (or communicate consent) the legal elements are as follows:

  1. Sexual penetration (no matter how slight) or sexual contact depending on the offense code being used
  2. The victim was unable to consent to sexual acts – or unable to communicate that consent – because of a disability or incapacitation.
  3. The suspect knew or should have known the extent of the victim’s disability or incapacitation.

There is no clear legal standard for establishing how severe the victim’s disability or incapacitation must be to render an individual incapable of communicating consent, so this must be established with evidence gathered during a thorough law enforcement investigation. However, it is important to keep in mind that this communication of non-consent does not need to be verbal. Even when victims cannot speak words, they may be able to push the suspect away or resist in other ways (e.g., trying to hold their legs closed, clamping down to prevent anything from entering their mouth, etc.). Beyond resistance, victims also frequently express their non-consent to sexual acts using other non-verbal behaviors or body language (e.g., crying, indicators of fear). Evidence of these behaviors are critical for documenting the lack of consent among non-verbal victims. However, they should also be documented whenever they are present in any sexual assault case – because they can corroborate the victim’s statement that sexual acts have been committed without consent.

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