I've been told that legally, you lose the ability to give consent only when you're no longer really conscious. This might just be something that's changed with the idea of actually saying yes now instead of not saying no.
It depends slightly on jurisdiction but on the whole it's more nuanced then that. Obviously someone who is unconscious can't consent but we also tend to accept situations where someone is conscious but is so clearly out of it due to alcohol that they still can't consent.
Onto the topic as a whole:
The key for me here is the difference between two positions:
consent because I was too drunk
consented because I was too drunk.
The first is prima facie sexual assault/rape for fairly obvious reasons; there is no consent. The obvious example is the one mentioned above; if someone is unconscious because they've drunk too much if you then engage in sexual relations with them then they clearly haven't consented and, outside of rare circumstances, you have no reason to suspect they have. Thus sexual assault, thus rape. As also mentioned above however it's generally not just limited to situations where someone is passed out. If someone is right on the edge of consciousness... still just about aware of what's going on around them but only barely... I'd be tempted to say it's also still sexual assault/rape even if they mumble a semi-coherant "yes" when you ask about having sex with them. While people may balk at the comparison, one can be drawn with people who suffer from mental disabilities and whether they're allowed to have sex; just as their mental impairment means that they can't comprehend the nature of the act they're engaging in, the alcohol can do the same temporarily.
But for me the second isn't sexual assault. And it's why I hate the quote from the "victim" mentioned in the linked article (emphasis mine).
“I would never have done that if I had been sober. … I don’t know what was going through my head."
For me just as drunken intent is still intent (if you intend to do something when drunk you can't use your drunkenness as a defence... a well established legal principle) drunken consent is still consent. If you normally wouldn't consent but because you're (voluntarily) drunk and inhibitions have been lowered you do consent then you still consented
. These aren't cases where you weren't able to consent, it's cases where you did
consent. And I hate the fact that people are now trying to classify that as sexual assault.
The case mentioned in the story is pretty much the absolute worst example of that, with a young man's life disrupted... if not outright ruined... through a combination of pseudo-science and misguided good intentions. It even falls squarely into the "if I regret in the morning it's rape" school of thought with the "victim" making clear during the investigation that she'd hoped her first time was more special. It also leads to the bizarre situation where if the John Doe in this case was vindictive he could have likewise had the girl in question expelled; he was just as drunk as her and from the eye-witness testimony she
was the one who initiated sexual contact. But he didn't and as a result she gets to continue on her life while his gets ruined. The fact that her sexual aggression and him being just as drunk as her don't constitute a defence is a ludicrous.
Let's also look at one list from Kylie's link when it comes to determining whether someone was too drunk to consent (ignore the fact it views all victims as female):
How drunk was the victim?
The more intoxicated the victim was, the less likely it is that she was capable of consenting.The following factors can aid in this determination:
● Was she conscious or unconscious? Did she regain consciousness during the rape? Did she pass out during the rape? If so, what did the accused do?
● Did she black out?
● Did she vomit?
● Could she speak? Was she slurring? Was she able to communicate coherently?
● Was she able to walk or did someone (in particular, thedefendant) have to carry her? Did she have to lean on someone?
● Was she able to dress/undress herself?
● Were her clothes disheveled?
● Was she responsive or in a non-responsive state?
● Was she able to perform physical tasks or was her coordination impacted? For example, did she light the wrong end of a cigarette or spill things?
● Did she urinate or defecate on herself?
● What was her level of mental alertness?
● Did she do anything else to indicate whether she was capable of cognitive functioning? For example, did she use her credit card? Did she use her cell phone or e-mail?
Applied to this case pretty much every single item on that list would be answered in the way that indicated she wasn't too intoxicated to consent. Yet the equally drunk man gets expelled.
Worst, if there was a chillingly clever predator out there it actually gives them a built in way to escape all punishment. Make sure to mention that you're drunk to a few friends, make clear to stagger around a bit. Find a clearly intoxicated victim. Have sex with them. Immediately run to the authorities and claim it was you
that was raped. Bang. You can get away largely scott free as now its your victim who faces punishment.
It's the farcical result of the farcical misuse of statistics to present farcical points because they agree with someone's political views and let the truth or any concept of fairness be damned. It's the result of the President repeating the massively discredited "1 in 5 women are raped at college" stat that pretends US colleges are places where a woman is more likely to be raped then in the war-torn Congo. It's the results of sex negative feminists and those who wish to shame all sexual or kinky behavior being allowed to peddle their nonsense while well-meaning useful idiots talk about being a "rape apologist" whenever anyone points out how awful these things are.
I'd hoped that the Rolling Stone farce... where they invented a gang rape because their reporter wanted to write a story about a gang rape and fraternities... would prove a watershed. And perhaps it has... at least this story is being told now. But it's still sickening that it happened in the first place.