1. (1) A person is considered incapable of consenting to a sexual act if the person is:

   1. (a) Under 18 years of age;
   2. (b) Incapable of appraising the nature of the person’s conduct;
   3. (c) Mentally incapacitated; or
   4. (d) Physically helpless.
2. (2) A lack of verbal or physical resistance does not, by itself, constitute consent but may be considered by the trier of fact along with all other relevant evidence.

3. (3) A person is incapable of appraising the nature of the person’s conduct if:

   1. (a) The person is unable to understand the nature of the conduct;
   2. (b) The person is unable to understand the right to choose whether and how to engage in conduct, including the right to revoke a prior decision to engage in conduct; or
   3. (c) The person is unable to communicate a decision to engage in conduct.

[1971 c.743 §105; 1999 c.949 §2; 2001 c.104 §52; 2021 c.82 §2]