Not saying you're mistaken, but what is "drunk"? I think we can all agree that if you're passed out unconscious, then yes, you can't reasonably be considers to have consented to anything and any sexual activity would be rape, first degree sexual assault, or whatever applicable crime. (I'm not trying to equivocate here, the laws vary from place to place. Alaska, for example, no longer has the crime of "rape". What normally is considered "rape" would be first degree sexual assault in Alaska) The thing is, it's not a binary situation in when you're either passed out drunk or stone cold sober, there's a continuum of intoxication. (yeah, I know: thank you captain obvious. ) So at what point does it legally transition from "making poor choices" to ""not legally able to give consent" ? How do you determine that? What happens when a man and a woman at similar levels of intoxication have consensual sex? Did he rape her or did she rape (commit first degree sexual assault against, whatever) him?