Now, many commentators, such as the one below, have been pointing out that alcohol is the fuel that drives student-student campus rape:
Yet columnist Scott Herhold had called earlier in the day for the judge to follow a probation recommendation for the county jail term rather than state prison. He noted Turner wrote probation authorities that he “would give anything to change what happened” and said he “can never forgive myself” for the incident.
“You don't have to buy Turner's story that he so was drunk himself that he did not realize she had passed out,” Herhold wrote. “But it's hard to review this case without concluding that it has roots in a culture of campus drinking, the unindicted co-conspirator here.”
Slate has even gone so far as to have a female columnist point out that college women wouldn't get so frequently raped if they didn't get so frequently drunk. None of this commentary sits well with the politically correct crowd.
The problem lies precisely in the argument that a drunk person cannot give consent. In this particular instance, the woman was so drunk (three times the legal limit) she remembers none of what happened. The only person who was there for the entire encounter, the young man, was also drunk. In short, neither is a very good witness to exactly what happened.
So, for the sake of argument, let us say she was conscious at the beginning of the encounter and attempted to give consent (failing, of course, because she was drunk). We don't know if she did because she was so drunk she doesn't remember anything. But, if she did attempt and fail, we have to remember that HE couldn't give consent to the sexual encounter EITHER because HE was ALSO drunk. So, according to the "drunk" rule, if they were having any kind of sexual interplay when both were conscious, they would - technically speaking - be raping each other.
That's bad enough, but it gets worse. Remember, according to the "too drunk to consent" rule, Person A cannot functionally form consent or intent. If Person B has sexual relations with A, it is rape, regardless of Person B's state of mind. Drunk or sober, it doesn't matter. We judge rape purely by A's ability to consent. B's intent and/or consent is irrelevant.
But, if Person A (whether male or female) is stipulated to be too drunk to give consent to someone else, arguably Person A is even too drunk to be able to consent to his/her own actions.
Put another way, if Person A is drunk, and therefore cannot be responsible for his/her actions towards Person B when B is conscious, why would the drunk A suddenly become responsible for his/her actions when B is no longer conscious? Perhaps B was never conscious to begin with - why would that change A's inability to consent to the sexual actions? Remember, Person B's state of mind is not relevant here. The rape of A revolves entirely around A's ability to consent.
As in the case of the young swimmer above, Person A is drunk, too drunk to even notice whether or not B is conscious. So drunk, in fact, that A cannot give consent to sex. Precisely because A is drunk, all sex is rape for Person A, because A cannot consent. Thus, by sexually interacting with B, A is being raped by B regardless of whether B is conscious because A cannot give consent for his/her own actions. Now, as the unconscious B is raping A via A's actions, it certainly may be the case that B is ALSO being raped by A via A's action, But because A is drunk, A is now in the peculiar position of raping himself or herself, using B as the conduit, simply by engaging in sexual action while drunk.
If we accept the "too drunk to consent" rule, then Person A is not responsible for the sex, even if Person A was the only one conscious and the only one acting. Which means the logic can be taken yet another step. In this situation, Person A's body is engaging in sexual conduct while his/her mind is unable to form the consent necessary for sex. You have heard of the victimless crime? This now becomes the perpetrator-less crime - everyone is getting raped, but no one is actually doing the raping.
This is where political correctness and the "too drunk" rule has taken us.
Rod Dreher has an interesting story: What is Consent to a Drunk?