Consent and Incapacitation

What is consent?

Consent consists of mutually understandable words and/or actions which indicate that an individual has freely chosen to engage in sexual activity.

In the absence of such words and/or actions, consent does not exist. Consent may not be inferred from silence, passivity, lack of physical resistance or lack of verbal refusal alone.

Knowing and voluntary consent

• Consent to engage in sexual activity must be knowing and voluntary.
• For example, when any participant is physically forced, passed out, asleep, unconscious or beaten, sexual activity is not knowing and voluntary and therefore not consensual.

Coercion

• Sexual activity that is a result of coercion is also not consensual. Any words or actions that eliminate the other person’s ability to choose whether or not to engage in sexual activity is coercion.
• Examples of coercion could include the following (so long as the conduct rises to a level that eliminates the other person’s ability to choose whether to engage in sexual activity): threats, whether expressed or implied, of substantial emotional or psychological harm or any physical harm, confinement or other similar conduct.

Consent to specific acts

• Consent to one form of sexual contact does not constitute consent to all forms of sexual contact. For example, an individual may agree to kiss but choose not to engage in touching or sexual intercourse or an individual may agree to touching or sexual intercourse but choose not to agree to kissing.
• If, at any time, it is reasonably apparent that either party is hesitant, confused or uncertain, it would be wise for both parties to stop and obtain mutual verbal consent before continuing sexual activity, because relying on non-verbal communication where one party has evidenced hesitancy, confusion or uncertainty may lead to serious misunderstandings.
• Mutually understandable words and/or actions demonstrating consent must indicate a willingness to engage freely in sexual activity.

Consent within relationships

• A current or previous dating or sexual relationship, by itself, is not sufficient to constitute consent.
• Even in the context of a relationship, there must be mutually understandable communication that clearly indicates willingness to engage in sexual activity each time such activity occurs.

Withdrawal of consent

• Withdrawal of consent must also be demonstrated by mutually understandable words or actions that clearly indicate a desire to end each form of sexual contact.
• Once withdrawal of consent has been expressed, that form of sexual contact must cease. Should someone become incapacitated in the middle of a sexual encounter, consent has automatically been withdrawn.

Consent and Missouri Law

• In the state of Missouri, a person 21 years or older commits the criminal offense of statutory rape in the second degree if that person has sexual intercourse with another person under the age of 17.
• Under Missouri law, consent to engage in sexual intercourse can never be given by minors under the age of 14.

Duration of Consent

• Consent to engage in sexual activity must exist from the beginning to the end of each instance of sexual activity, and for each form of sexual contact.
• Consent may be withdrawn by either party at any time.

Incapacitation

• An individual may be found to have been incapacitated if they demonstrate that they were unaware of where they were at the relevant time, how they got there, or why or how they became engaged in a sexual interaction.
• Where alcohol and/or drugs are involved, incapacitation is a state beyond drunkenness or intoxication.

Indicators of Incapacitation

• Some indicators of incapacitation include: lack of control over physical movements, lack of awareness of circumstances or surroundings or the inability to communicate for any reason.
• Any individual who is aware, or should be aware, that another individual has had too much to drink to meaningfully consent to sexual activity will be held responsible. Therefore, it is critical to be aware of the other person’s level of intoxication if engaging in sexual activity.

Never an Excuse for Sexual Misconduct

• Being intoxicated or impaired by drugs and/or alcohol is never an excuse for sexual misconduct and does not excuse one from the responsibility to obtain consent.
• Sexual contact under the influence of alcohol and/or drugs is risky behavior because these substances impair the individual’s decision-making capacity, awareness of consequences, and the ability to make informed judgments such as the state of intoxication of the other person.