The federal sexual abuse statu te, 18 U.S.C. § 2242(2)(B) , criminalizes a " sexual act with another person if that other person is . . . physically inca pable of declining participation in, or communicating unwillingne ss to engage in, that sexual act." Can evidence that a vict im was intoxicated suffice to prove the "physically incapable" element of sexual abuse, or does a conviction require evidence showing an actual physical inability to communi cate a lack of consent?

Can evidence that a victim was intoxicated suffice to prove the 'physically incapable' element of sexual abuse, or does a conviction require evidence showing an actual physical inability to communicate a lack of consent?