Incapacitation is the inability, temporarily or permanently, to give consent because an individual is mentally and/or physically helpless, asleep, unconscious, or unaware that sexual activity is occurring. Where alcohol or other drugs are involved, evaluating incapacitation requires an assessment of how the consumption of alcohol and/or drugs affects a person’s: decision-making ability; awareness of consequences; ability to make informed, rational judgments; capacity to appreciate the nature and quality of the act; or level of consciousness. The assessment is based on objectively and reasonably apparent indications of incapacitation when viewed from the perspective of a sober, reasonable person. 

Someone who is intoxicated may be able to consent to sexual activity. Someone who is incapacitated cannot consent to sexual activity. It is therefore essential to be able to recognize signs of incapacitation.

For depressants (substances like alcohol, GHB, Rohypnol, and painkillers),  possible signs of incapacitation can include:

• Inability to speak coherently
• Confusion on basic facts (day of the week, birthdate, etc.)
• Inability to walk unassisted
• Passing out

If your partners are showing signs of incapacitation, STOP. For more information about the definition of incapacitation in Brown’s Sexual and Gender-Based Misconduct Policy please visit this link.

Someone who is intoxicated (but not incapacitated) may be able to consent to sexual activity. However, it is important to check in with yourself about why you want to be intoxicated to have sex or why you want to be with someone who is intoxicated when choosing to have sex.
 

It is okay to have sex when drinking or using other drugs, but all of the rules of consent still apply. What is most important in a situation like this, is that it's the responsibility of the person initiating sexual action to be sure their partners are able to give consent. Checking-in is especially key throughout a sexual encounter like this. If there is any uncertainty about whether someone is incapacitated, don’t have sex.

Things to keep in mind if using substances and hooking-up.

1. Consent is an affirmative and willing agreement to engage in specific forms of sexual contact with another person. Consent requires an outward demonstration, through mutually understandable words or actions, indicating that an individual has freely and affirmatively chosen to engage in sexual contact.
2. Alcohol and other substances make it difficult to establish consent. Communication about sex and relationships can be difficult and awkward for people even when they are sober and know each other well. Adding alcohol and other substances into the equation can significantly complicate that communication.
3. There is no clear equation to tell how many drinks (or how much of a substance) impairs consent. Substances impact people in different ways based on a person’s body size, tolerance, amount of substance consumed, medications already in someone’s system, etc. If you have any questions about how close you are to the line between intoxication versus incapacitation, stop. Consensual and pleasurable sex is nowhere near that line.
4. Consider power dynamics. If a “yes” is achieved through coercion, then it is not consent. For example, if someone buys someone else drinks, or walks them home, they are not owed anything and should not use guilt or intimidation tactics in order to engage in sexual activity. Power dynamics can come into play when someone holds a more privileged identity than someone else (e.g. an able-bodied partner and someone with a disability; a person with white-skin privilege and a darker skinned person; a man and a woman).  It is important to be aware of the ways that power can impact decisions around consent.
5. If you’re not sure or if you are getting mixed signals, STOP and check in. 

Note: “Hooking up” means different things to different people. Make sure you and your partners are aligned on what each of you are okay with doing.