Intoxication, Incapacity and Consent Under Michigan CSC Law

Michigan's criminal sexual conduct (CSC) statutes make sexual penetration or sexual contact a crime when the actor knows or has reason to know that the other person is "mentally incapable," "mentally incapacitated," or "physically helpless."^[4][5] Each term has its own statutory definition, and one of them changed on October 10, 2023: "mentally incapacitated" now covers incapacity from alcohol or drugs the person took voluntarily.^[1][2]

If you are in immediate danger, call 911.^[8] The National Sexual Assault Hotline is free, confidential and open 24/7 at 800-656-HOPE (4673).^[9] Michigan's VOICES4 hotline takes calls and texts at 855-864-2374.^[10]

This page gives each definition as currently worded, explains the 2023 amendment and what is not settled about it, and sets out the knowledge element and the role of consent. It describes what the statutes make a crime and how courts have read them. It is not legal advice, and nothing on it is a statement that any conduct is lawful.

The three conditions, as the statute defines them

Term	Statutory definition	Source of the condition
Mentally incapacitated, MCL 750.520a(k)	"a person is rendered temporarily incapable of appraising or controlling the person's conduct due to the influence of a narcotic, anesthetic, alcohol, or other substance, or due to any act committed upon that person without the person's consent"[1]	A substance, or an act done to the person without consent[1]
Mentally incapable, MCL 750.520a(j)	"a person suffers from a mental disease or defect that renders that person temporarily or permanently incapable of appraising the nature of his or her conduct"[11]	A mental disease or defect[11]
Physically helpless, MCL 750.520a(m)	"a person is unconscious, asleep, or for any other reason is physically unable to communicate unwillingness to an act"[3]	Any cause of physical inability to communicate unwillingness[3]

A fourth term, "mentally disabled," means that a person has a mental illness, is intellectually disabled, or has a developmental disability.^[12] It appears in the first- and second-degree provisions that combine a vulnerable person with a relative or a person in a position of authority.^[13][14]

What changed on October 10, 2023

Until that date, a person was "mentally incapacitated" only if the incapacity was due to "a narcotic, anesthetic, or other substance administered to that person without his or her consent," or to another act committed on the person without consent.^[2] 2023 PA 65 deleted the words "administered to that person without his or her consent" and added "alcohol."^[2]

The result is that the current definition asks about the person's condition, not about how the substance came to be consumed.^[1] The model criminal jury instructions were amended in November 2025 and again in September 2026 to reflect the change.^[15] Jurors may now be told: "It does not matter if [the complainant] voluntarily consumed the [drugs / alcohol]."^[15]

Older web pages and summaries still describe the earlier rule. As of October 2026 the statute reads as quoted in the table above.^[1] Other recent amendments are collected in the timeline of Michigan sex-crime law changes.

Conduct before October 10, 2023

Whether the current definition can be applied to conduct that occurred before October 10, 2023 is not settled by the sources this guide relies on. The act took effect on that date.^[2] Its enrolled text ends with a single enacting section, which states when the act takes effect and says nothing about earlier conduct.^[16] A person whose case involves events before that date would need legal advice on which definition governs.

How incapacitated is "incapacitated"?

The statutory test is incapacity: the person must be "rendered temporarily incapable of appraising or controlling the person's conduct."^[1] The jury instruction puts it as being "unable to understand or control what [he / she] was doing" because of drugs, alcohol, another intoxicant, or something done to the person without consent.^[15] Neither text sets a blood-alcohol figure or a number of drinks.^[1][15]

"Mentally incapable" and "physically helpless" in the cases

The Court of Appeals has read "mentally incapable" to cover not only an understanding of the physical act but also an appreciation of the nonphysical factors, including the moral quality of the act.^[17] In another Court of Appeals case, the benchbook reports, there was ample evidence that a 17-year-old was mentally incapable of consenting although he "knew what was proposed," where mentally he was about twelve or thirteen.^[17][18]

"Physically helpless" turns on the person's condition at the time of the act. In People v Perry the Court of Appeals found insufficient evidence of helplessness where the complainant had been asleep when the defendant entered the home but was awake when the assault occurred and could physically communicate unwillingness; the court noted that a different result would follow if the act had occurred while she was asleep.^[19] Force or coercion is a separate basis for a third-degree charge and does not depend on helplessness.^[4]

Which charges use these conditions?

Degree	Act	Circumstance	Maximum penalty in the statute
Third degree	Sexual penetration	The actor knows or has reason to know that the victim is mentally incapable, mentally incapacitated or physically helpless[4]	15 years[20]
Fourth degree	Sexual contact	The same knowledge and conditions[5]	2 years, a fine of up to $500, or both[21]
First degree	Sexual penetration	The same knowledge and conditions, and the actor causes personal injury[22]	Life or any term of years[23]
First degree	Sexual penetration	The same knowledge and conditions, and the actor is aided or abetted by one or more other persons[24]	Life or any term of years[23]
Second degree	Sexual contact	Either of the two first-degree combinations, applied to sexual contact[25]	15 years[26]
First and second degree	Penetration (first) or contact (second)	The other person is mentally incapable, mentally disabled, mentally incapacitated or physically helpless, and the actor is related by blood or affinity to the fourth degree or is in a position of authority and used it to coerce submission[13][14]	Life or any term of years (first); 15 years (second)[23][26]

"Personal injury" includes bodily injury, mental anguish, pregnancy and disease, among other things.^[27] The degrees are explained in third-degree CSC, fourth-degree CSC and first-degree CSC.

The knowledge element: "knows or has reason to know"

For all but the last row of that table, the prosecutor has to prove that the actor "knows or has reason to know" of the condition.^{[4][5][22][24][25]} The Court of Appeals applies an objective standard: the question is not the defendant's subjective perception but whether the incapacity would be apparent to a reasonable person.^[6][28]

The Court of Appeals explained the purpose of the wording in People v Davis. The Legislature did not mean to excuse a defendant who is unreasonable in concluding that the other person could consent; it meant to eliminate liability only where the condition is not apparent to reasonable persons.^[29] A defendant who makes a reasonable mistake about the other person's mental or physical condition may not be criminally liable.^[29] This differs from age, where a reasonable mistake is no defense.^[30]

The provision for relatives and persons in authority is worded differently: it requires that the other person be in one of the listed conditions and does not contain the "knows or has reason to know" phrase.^[13]

Consent and these charges

A person who is mentally incapable, mentally incapacitated or physically helpless is presumed legally incapable of consent under the CSC Act, so a consent defense is inapplicable to these offenses.^[7] What the defense can contest is whether the person was in that condition and whether the accused knew or had reason to know it.^[6] See consent under Michigan CSC law and the consent defense.

The accused's own intoxication

It is not a defense to any crime that the defendant was under the influence of, or impaired by, voluntarily and knowingly consumed alcohol or drugs.^[31] In Davis the Court of Appeals rejected the argument that a defendant's intoxication could excuse a failure to recognize the other person's condition, holding that the "knows or has reason to know" language does not create a specific-intent element.^[29] See the accused's own intoxication.

Spouses

A person may be charged and convicted under the CSC sections even though the victim is his or her legal spouse. The one limit is that a person may not be charged or convicted solely because the spouse is "mentally incapable."^[32] That limit does not mention the mentally incapacitated or physically helpless conditions.^[32]

What people get wrong

"A person who chose to drink cannot be mentally incapacitated." That was the rule before October 10, 2023. The current definition has no such condition.^[2]

"Any drinking means there was no consent." The definition requires incapacity to appraise or control one's conduct, and the charge also requires that the actor knew or had reason to know of it.^[1][4]

"I was drunk too, so I could not have known." The test is what would be apparent to a reasonable person, and the defendant's voluntary intoxication is not a defense.^[6][31]

The medical examination offered after a reported assault is described in the sexual assault forensic exam. Definitions of other terms are in the legal glossary.