Consent is a hot topic right now in discussions everywhere about sexual mores and politics. It’s nearly impossible these days to listen in on any conversation about sex—whether it be in an educational institution, in the workplace, or in the news—without encountering the importance of consent. Broadly speaking, a sexual act without clear consent from all parties can place the initiator in danger of an assault accusation.
But do these basic ground rules change when a potential partner is mentally incapacitated? What exactly does it mean to be “mentally incapacitated,” and can a person suffering from a mental incapacity legally consent to sex? How can you tell when someone’s decisions (or ability to make decisions) about sex may be affected by a mental capacity?
How does the law define “mentally incapacitated”?
Under Washington State law, “consent” means that “at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.” The law requires a clear, uncoerced agreement before any sexual contact occurs. This agreement does not necessarily have to be verbal, but it does need to be unambiguous.
Under the same law, “mental incapacity” is defined as a “condition existing at the time of the [sex act] which prevents a person from understanding the nature or consequences of the act of sexual intercourse.” The law does not distinguish among the causes of mental incapacity. It applies to mental incapacity “whether that condition is produced by illness, defect, the influence of a substance or from some other cause” — under the law, all these causes are equal.
This means that mental incapacity doesn’t apply just to individuals with developmental or cognitive disabilities – it also applies to someone who is intoxicated as a result of ingesting either drugs or alcohol.
What are the signs that someone may not be mentally able to consent to sex?
This question is, of course, a tricky one, especially if the individuals involved don’t know each other well. But a few basic rules are a good place to start:
- Have you witnessed the person drinking heavily or taking a mind-altering drug of some kind? If so, and especially if you don’t know the person well, it’s probably best to wait for sex until he or she is sober.
- Does the person appear to have been drinking or to have taken a drug? For example, is his or her speech slurred, eyes unfocused, or balance affected? If so, and especially if you don’t know the person well, it’s probably best to wait for sex until he or she is sober.
- Individuals with mental impairments related to illness or disability can still consent to sex but deserve special consideration. The individual must have knowledge, rationality, and voluntariness with respect to the decision to engage in specific sexual activity. If you aren’t sure, it’s best to wait until you are.
I had consent, but I’m still being accused of assault. What now?
Even if you’ve been careful to avoid sexual activity without consent, accusations of sexual assault sometimes occur anyway. The other person may be confused, mistaken, regretful, or simply lying. This risk heightens when the complaining witness may be able to claim that he or she was mentally incapacitated at the time the sexual contact occurred.
If you do find yourself accused of a sex offense, stop communicating with your accuser and don’t make statements to law enforcement without a lawyer present. If the incident occurred at a college or university, make sure you understand your school’s Title IX process.