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Legally, having sex with someone who is incapacitated is equivalent to having sex with someone who is unconscious, as they lack the required mental state to form a valid agreement What if person a wanted to have sex with person b, but then got too drunk to consent, and person a had sex with them anyway? A person can be drunk and still possess the capacity to consent
Drunk in Love: The Science of Sex and Alcohol
However, once they cross the threshold into incapacitation, any apparent agreement is legally invalid. 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?” 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 every person partaking in a sexual encounter is drinking, it is important that all parties — especially the party that initiates sex or a new sex act — are continually and repeatedly. No matter the circumstances, we represent individuals accused of sex crimes with expertise, dignity, and optimism
