(1) A person is considered incapable of consenting to a sexual act if the person is:
(a) Under 18 years of age;
(b) Incapable of appraising the nature of the person’s conduct;
(c) Mentally incapacitated; or
(d) Physically helpless.
(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) A person is incapable of appraising the nature of the person’s conduct if:
(a) The person is unable to understand the nature of the conduct;
(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
(c) The person is unable to communicate a decision to engage in conduct.