What is the test for determining whether a person has capacity to participate in sexual contact with another person?

As we noted in Rivers v. Katz, however, determination of capacity is a judicial, not a medical, function (67 N.Y.2d at 496, 504 N.Y.S.2d 74, 495 N.E.2d 337). The question whether a person possesses sufficient resources--intellectual, emotional, social, psychological--to determine whether to participate in sexual contact with another is an assessment within the ken of the average juror, who likely has made the same determination at some point. ⁴ We concluded in Easley that this assessment is best based on evidence concerning the victim's ability to function in society (42 N.Y.2d, at 55, 396 [653 N.E.2d 1166]

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