How does incapacity affect ability to consent to intercourse?

Rape, or nonconsensual sexual intercourse, can be a serious felony in West Virginia. While you may know that physically forcing someone to have sex lacks consent, it is less widely understood how incapacity renders someone unable to consent. RAINN has comprehensive information about incapacity and inability to consent in West Virginia.

One way a person may lack ability to consent is his or her age. A person is unable to consent to sexual intercourse if he or she is under the age of 16. Age differences between the actor and the other person are legally relevant as well. For instance, a person 14 or older commits first degree sexual assault if he or she has sex with someone younger than 12.

A person is unable to consent if he or she is physically helpless. Someone can be deemed physically helpless for several reasons. Such circumstances include being physically unable to tell the actor he or she does not consent to the activity, such as when he or she is unconscious.

Someone is rendered unable to consent if he or she is mentally incapacitated and therefore unable to appraise his or her conduct. Mental incapacitation can arise by mental disease or developmental disability. A person may also be mentally incapacitated by virtue of intoxication that was involuntary.

Many people understand the role of physical force in felony rape. A lesser understood but equally important concept is lack of consent due to incapacity. Age, physical helplessness, and mental inability to appraise one’s situation are all ways incapacity negatively affects ability to consent and can lead to serious charges.  

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