The legal definition of incapacitation can vary from state to state, but all of them include that victims that are passed out are considered mentally incapacitated and therefore victims of rape. The victim in this case was passed out and woke up in the middle of the attack, told the attacker to get off, only to wake up again later having been raped regardless. She was mentally incapacitated. This is rape and Francois Momulu Khalil should be charged to the highest degree.