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?

Question Presented The federal sexual abuse statute, 18 U.S.C. § 2242(2)(B), criminalizes a “sexual act with another person if that other person is... physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” 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? i Statement of