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Would it be rape to have sex with someone who was asleep? Comatose? Sedated? I think almost everyone would say yes.
Yes, because they didn't consent.
And if a girl is so drunk that she's drifting in and out of consciousness, how can she consent?
That's certainly an edge case. But I don't think it invalidates my position.
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How often is that the case? How is your rule distinguishing between incapacitation and "might not make the same decision while sober, or uses that as an excuse to dodge shaming afterwards"?
I'm not getting into the debate of how such a crime is prosecuted, I'm aware that it often ultimately comes down to he-said-she-said, innocent until proven guilty still applies, right to a fair trial.
My point is that, if having sex with someone who's comatose unambiguously constitutes rape, then having sex with someone who's so drunk that they're slipping in and out of consciousness should also constitute rape, for the same reason. If we had hard proof (e.g. video footage) that clearly demonstrated that a rape complainant was drunk to the point that they were slipping in and out of consciousness during the act in question, that would be about as central an example of "rape" as it's possible to get.
The original post was about "hooking up with a girl who's too drunk to say no." What does that mean, and do you have a standard that differentiates between "slipping in and out of consciousness" and "woo I'm drunk and gonna bang this guy"?
If you're with a girl and she's slipping in and out of consciousness (i.e. struggling to keep her eyes open, head lolling, nodding off etc.), you shouldn't have sex with her. I don't understand why this is so complicated.
What does "too drunk to say no" mean? You've fixated on "not conscious," but that's obviously a limited and extreme subset of "too drunk." What are the other cases?
If a person isn't drunk to the point that they are drifting in and out of consciousness, but are drunk to the point that they:
a) have become profoundly physically uncoordinated ("falling-down drunk")
b) are behaving in a way consistent with them having "blacked out" (e.g. quickly forgetting things that you told them minutes ago, asking the same questions over and over again)
c) are throwing up
d) seem confused or disoriented about their location and circumstances
e) have extremely slow reaction times
f) are slurring their words to an extremely obvious extent
they're almost certainly too drunk to be able to give informed consent to sex.
(The list above is non-exhaustive.)
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