Personally I'm not big on the whole "drunk sex=rape" thing. Now if you get someone drunk to have sex with you, that's one thing, but if you're both drunk and you both decide to go at it, that's not rape. To quote an article in Time Magazine, "I'm not as concerned for my daughter being assaulted on a college campus as I am for my son having his life ruined when he has sex after a party."
I think that's just an argument based on the ambiguity with the word drunk. There's drunk and there's drunk, right. I think a reasonable interpretation would be intoxicated to the point where you can't truly consent. So, being tipsy is obviously not drunk for these purposes. Unable to stand up, slurring your words, being unresponsive, vomiting, eyes glazed over, that's drunk and no decent person would accidentally have sex with someone in that position. A person with a moral compass takes care of that person, makes sure they drink some water and potentially seeks medical attention for them.
So, there is no mutual drunk sex by that definition. Just think about when you've been seriously, blind drunk. You're in no shape to have sex, the only physical urge you have is to void the contents of your stomach and get the room to stop spinning.
This is generally a good idea. The statute I mean. That said does the statute define a level of intoxication whereby consent is per se unattainable? Is it a totality of circumstances/factors test?
