A person can be drunk and still possess the capacity to consent However, once they cross the threshold into incapacitation, any apparent agreement is legally invalid. Having sex with a person who has consumed alcohol is not necessarily rape, many if not most couples have sex for the first time under the influence of alcohol The question, as others have pointed out, is whether the person had sufficient capacity to consent given her mental state If not, than it is rape. Under the laws of most states, it is absolutely rape to have sex with someone who is drunk
Drunk people cannot give consent, thus the crime of rape has occurred There are defenses to the crime, but they are difficult to come by and require the help of a skilled attorney. If they are both drunk, and have sex, is that consensual People—even married couples!—have been having drunk, enjoyable sex since the beginning of time Drunk people have also been making bad decisions—but conscious decisions nonetheless—since the beginning of time These distinctions are often lost on college campuses, however.
How to know if someone is too drunk to consent when investigating what really happened the night of an alleged rape, we ask a series of questions, including “were both parties drunk?”
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