This is a tough topic and I'm not sure how I ended up here, but I'd really have to research the case before formulating a firm opinion.
I have a problem with both sides of this really. One is the idea that there's kind of this magical threshold in which a person no longer can consent to have sex. That's tricky because if there's drinking involved at what point do you know if you've reached the legal threshold at which the woman can no longer consent? There's a lot of difference between too drunk to say yes, and too drunk to say no isn't there?
I'd assume part of this is the mentality of the court in the sense that if for instance my wife and I get drunk together (has happened plenty of times) and we end up having sex, I'm not going to get charged with rape because at some point in the process she went over the legal threshold at which she can consent.
Having said that, when people hear rape of this sort, myself included I tend to think that the individual was so drunk she was passed out or literally couldn't even communicate. That's not actually the definition though, it includes mental incapacity which, ""prevents a person from understanding the nature or consequences of the act of sexual intercourse". That's really unclear and just means the person might not understand fully what they are doing, not that they lack the ability to say no.
So, in the case of being physically incapacitated I'm really against this ruling. If you have sex with someone who us unconscious or nearly unconscious it's hard to imagine that not being rape. However, if you go with the fuzzy mental incapacitated thing, that could technically apply to anyone you ever got drunk with and then had sex with really. Then I can see the line of logic for saying yeah but they voluntarily got drunk with you.
Technically, every time someone has sex once they are past a certain point of being drunk, even if they are conscious, aware, and making choices, it could still always be considered rape. That's a problem to.
