Incapacity to Consent

This is the first of three chapters that consider paradigms of rape under which nonconsent is presumed on the basis of certain kinds of background conditions. The particular focus here is on cases in which complainants are said to lack the capacity to consent. Persons who are asleep, unconscious, or in a persistent vegetative state can be categorically and uniformly held to be incapable of consenting, without much risk of overinclusiveness. But the situation presented by persons suffering from intellectual or communicative deficits or who are intoxicated is more variegated and complex. There is a danger that if incapacity in these spheres is defined too broadly, some people who suffer from mental disabilities or who drink for the purpose of making themselves less inhibited might be denied the opportunity to have genuinely consensual sex.