Title IX protects students from all forms of sexual harassment, including sexual violence or a physical sexual act that is perpetrated against someone’s will, without his or her consent, or while that person is incapacitated. Incapacity, while it can result from a developmental disability or involuntary physical restraint, when it comes to college campuses, it is most often the result of the ingestion of certain substances, namely drugs and alcohol. For this reason, alcohol use often plays a key role in many campus sexual assault allegations. Unfortunately, the line between mere intoxication and incapacitation can be difficult to discern, which can make determining whether a person gave or obtained consent to a sexual encounter a complicated process.
It’s important to note, however, that using drugs or alcohol does not, in and of itself, automatically negate an individual’s ability to provide consent. Instead, a person can be said to be incapacitated by drugs or alcohol if the level of ingestion of the substance is more severe than merely being under the influence, being impaired, or being intoxicated. Common warning signs of potential incapacitation include incomprehensible or slurred speech, an unsteady gait, vomiting, incontinence, or unconsciousness.